Herbohn v Isaac Regional Council
[2018] QCAT 31
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- Unreported Judgment
- Herbohn v Isaac Regional Council[2018] QCAT 31
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Herbohn v Isaac Regional Council[2018] QCAT 31
Herbohn v Isaac Regional Council[2018] QCAT 31
CITATION: | Herbohn v Isaac Regional Council [2018] QCAT 31 |
PARTIES: | Thomas Herbohn (Applicant) v Isaac Regional Council (Respondent) |
APPLICATION NUMBER: | GAR166-17 |
MATTER TYPE: | General administrative review matters |
9 October 2017 | |
HEARD AT: | Mackay |
DECISION OF: | Member Beckinsale |
DELIVERED ON: | 6 February 2018 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | The decision of the Isaac Regional Council to declare Diesel and Pepper dangerous dogs is confirmed. |
CATCHWORDS: | ADMINISTRATIVE LAW – 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 196(1)(a)(b), Schedule 2 Criminal Code 1899 (Qld), s 1 Invasion of Privacy Act 1971 (Qld), s 43(1), s 43(2), s 45(1), s 45(2)(b) s 45(3), s 46 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: | Thomas Herbohn |
RESPONDENT: | Isaac Regional Council |
REPRESENTATIVES: | |
APPLICANT: | self represented |
RESPONDENT: | represented by Trevor Maher |
REASONS FOR DECISION
- [1]Mr Herbohn is the owner of male and female American Staffordshire Terriers named “Diesel” and “Pepper” kept at his residence at Clermont.
- [2]Following an incident at Mr Herbohn’s residence on 2 April 2017 which resulted in his next door neighbour’s male Kelpie named, “Spud”, requiring veterinary attention, the Isaac Regional Council issued Regulated (Dangerous) Dog Declarations in accordance with s 95 of the Animal Management Act (Cats and Dogs) 2008 (Qld) (the AM Act) with respect to both Diesel and Pepper. Additionally, Council issued Infringement Notices with respect to Diesel and Pepper not being registered with the Council and a Compliance Notice to Spud’s owner for having an insufficient enclosure. Upon internal review, Council confirmed its decision to issue Dangerous Dog Declarations. Mr Herbohn applied to the Tribunal for a review of that decision.
Legal Framework
- [3]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 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]
- [4]The Tribunal may confirm the decision, amend the decision or set aside the decision and substitute a new decision.[4]
- [5]The decision-maker is required[5] to assist the Tribunal to reach the correct and preferable decision.
- [6]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.
- [7]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.
- [8]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.
- [9]The AM Act empowers a local government to declare a particular dog to be a declared dangerous dog[6] if the dog has seriously attacked, or acted in a way that caused fear to a person or another animal[7], 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.[8]
- [10]
- [11]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.[12]
- [12]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[13]), 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.
- [13]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[14] determine legislative intent.
- [14]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.”[15] More recently the Appeal Tribunal[16], in considering a destruction order, emphasised that extensive enquiry is required in exercising the discretion under section127(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.
- [15]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.[17]
- [16]The matters to be addressed by me are essentially: did Diesel and Pepper seriously attack Spud; if so, how should the discretion be exercised in determining whether a regulated dog declaration should be made?
Evidence of the Attack
- [17]Mr Herbohn was at his residence when the incident between the dogs occurred. He said that his two dogs are generally confined to his rear yard which is fenced to contain them. His evidence is that he had been working in the downstairs shed of his high set home and went upstairs to get water. In doing so, he believed he had left unlatched, the gate to his rear yard allowing Spud to push open the gate and access the yard. He said he got to the top of his rear stairs and noticed Spud had entered. He said that his dogs were laying down about four metres inside the yard and they noticed Spud when Spud was about a metre inside the yard. He said his dogs walked over to Spud, who rather than retreating back out the gate, barked and snapped at Pepper. He said a fight between the dogs then ensued with Spud biting and holding Pepper’s cheek and ear whilst Diesel bit and held Spud’s leg. He ran downstairs and dragged the dogs over to the gate to use it to separate them. He said he first jammed Pepper’s head between the gate and fence and had his partner, who was also at home at the time and had come downstairs, hold the gate while he jumped the fence, grabbed Diesel off Spud, threw Diesel over the fence into the rear yard before jumping back into the rear yard to separate Pepper and Spud, who then ran off.
- [18]Mr Herbohn said Spud’s owner, Shannon Breckon, had been mowing her yard sometime prior to the incident but had left by car shortly beforehand and returned a short time later after the incident. In conversation after the incident, he said Ms Breckon agreed her gate was open which had allowed Spud to escape.
- [19]Mr Herbohn’s then partner, Kayse Hooper (previously known as Phelan), was the only other person present at the time of the incident. A typed statement was provided from Ms Hooper by Mr Herbohn which corroborated his version of what occurred. At the hearing, however, Ms Hooper gave evidence that Mr Herbohn had prepared that statement at a time they were separated but she had hoped to resume the relationship and it was not a true account of what occurred. She said they were both inside the house when they heard a commotion and both ran downstairs. She said she saw the gate from the rear yard was open and Diesel and Pepper were outside attacking Spud. She concurred that the gate was used by Mr Herbohn to separate the dogs with her assistance and that Spud ran off. She did not recall whether Ms Breckon had been mowing but recollected no-one was home and the car was gone when she and Mr Herbohn went next door but could not find Spud.
- [20]Ms Hooper later overheard a conversation between Mr Herbohn and Ms Breckon after she returned from taking Spud to the vet. She recollected that Ms Breckon was under the impression that Spud had entered the rear yard and that Ms Breckon commented on Mr Herbohn being a responsible dog owner. She recollected the issue of the vet bill was raised with Mr Herbohn not committing but indicating they should wait and see what it was.
- [21]Ms Hooper said after she and Mr Herbohn had broken up she contacted Ms Breckon saying that Mr Herbrohn had lied to her about Spud and that she had not written the statement.
- [22]The rear neighbour to both Mr Herbohn and Ms Breckon, Raechell White, was home at the time of the incident and heard the sound of dogs as well as a female voice yelling and shouting. She went outside her house and down the stairs to see what was happening and saw Mr Herbohn jump over the fence from his backyard into what she described as his carport area. She assumed that whatever was taking place was occurring in the area of the carport and that Mr Herbohn was taking care of it. She recollected that Ms Breckon had been mowing and she heard the mower idling at that stage for some period of time. She sent Ms Breckon a text asking whether everything was okay[18] but received no response until after Ms Breckon had been to the vet with Spud. She and Ms Breckon exchanged a number of texts[19] with Ms Breckon asking whether Ms White had seen whether Mr Herbohn had left his yard to separate the dogs or whether he had done so in his back yard. She responded that she only saw him jump from the back yard and assumed the incident occurred in the area where he parked.
- [23]Andrew Philippzig-Mann, who is employed by the Council as a Compliance Ranger, in his oral evidence said Mr Herbohn had, two days after the incident shown him where the incident commenced, which was a short distance outside the rear yard but still within Mr Herbohn’s property.
- [24]Ms Breckon’s evidence was that she was mowing while Spud was lying under the house. She left her yard to put lawn clippings around a tree on her footpath and left her gate open whilst doing so. She denied Mr Herbohn’s suggestion at the hearing she had left her property by car. She said she did not see Spud until he came back in through the gate and collapsed under the house. She thought he may have been hit by a car but found injuries on him which led her to believe he was in a dog fight. She sent a text to Mr Herbohn asking whether he had heard a dog fight and then went over to his house. He confirmed there had been a fight and said he had left his gate open when he went upstairs. He agreed with her when she asked whether Spud had been in his back yard.
- [25]Ms Breckon took Spud to veterinary surgeon, Tessia Salmond, whose report[20] sets out Spud’s condition and the treatment given to him. He required treatment for shock which Dr Salmond described as a life-threatening condition. An x-ray determined that his hind leg was not broken or dislocated but had been penetrated by a bite. He remained in hospital on an IV drip for treatment from what the report termed “massive muscle injuries”. At the hearing, in response to Mr Herbohn’s questions, Dr Salmond said that Spud is unlikely to suffer arthritis in the future due to treatment being given immediately.
- [26]Mr Herbohn agreed Spud was involved in a fight with his dogs but sought to minimize his injuries describing them in material to the Council as “a couple of cuts and a supposedly dislocated elbow.”[21] In submissions at the hearing he described Spud’s injuries as “very minor”. He also asserted that Spud entered his rear yard via the gate he left unlatched and provoked a fight with his dogs which he said did not leave the rear yard other than when he used the gate to separate them.
- [27]The AM Act does not make any reference to where an attack occurs and I am not required to make a finding of fact about location in determining whether Diesel and Pepper seriously attacked Spud. I am required to determine that the attack caused bodily harm, that is, an injury which interferes with health or comfort, or grievous bodily harm, that is, an injury which if left untreated would endanger or be likely to endanger life, or be likely to cause permanent injury to health. I accept the evidence of Dr Salmond and find that the attack on Spud by Diesel and Pepper resulted in grievous bodily harm and was therefore a serious attack in accordance with the AM Act.
Matters to Be Considered in Exercising Discretion
- [28]Mr Herbohn gave an account of the attack which involved his leaving his rear yard gate momentarily unlatched which allowed Spud to enter. He described Spud barking and snapping at Pepper before “holding” Pepper’s cheek and ear after which Diesel bit and held Spud’s leg. He said the attack only occurred due to Ms Breckon leaving her gate open and that Spud was in the habit of leaving his yard when not on a leash. He said Ms Breckon had actually driven away from her property for a time before the attack occurred.
- [29]Mr Herbohn disputed the account given by Ms Hooper. He said she hates him and is trying to hurt him. He suggested she is confused about what area is “outside”. He said Ms Breckon and Ms Hooper have conferred.
- [30]In written submissions Mr Herbohn described the Council’s contentions that Diesel and Pepper have a history of aggression towards other dogs and that Mr Herbohn is aware of that, as “made up.”[22] He said his dogs are not at all aggressive, just strong. He clarified that when walking his dogs he avoids getting close to other dogs only to avoid them pulling him close to say hello. He explained how well disciplined they are and that they play “fetch” and “tug of war” with visitors. He said the dogs are aware of their strength and he has observed them pulling less hard when playing with children.
- [31]Mr Herbohn provided several letters from family and friends which described how much Mr Herbohn cares for his dogs, how friendly and well trained they are and their numerous interactions with children and other dogs which caused no concern whatever to the writers.
- [32]Mr Herbohn said that he had not registered the dogs due to his being warned that dogs of that breed once registered in his shire “go missing”. He stated that a reason for his fence is so the dogs are not visible to those who may want them for “fighting or breeding purposes.”[23]
- [33]Mr Herbohn objected to the admission into evidence of the recording and transcript of that recording made by Mr Philippzig-Mann submitting that it was made without his knowledge and breached the Invasion of Privacy Act 1971 (Qld), specifically sections 45 and 46.
- [34]Mr Herbohn submitted that he has a defence under s 196(1)(a)(i) of the AM Act as his dogs were provoked by Spud.
- [35]Mr Herbohn submitted that his dogs will suffer should the declaration they are dangerous be confirmed. As they will be “living the rest of their life in a cage” he would consider having them put down.
- [36]Mr Herbohn submitted that the purpose of the AM Act is to protect the community. He submitted that whilst a dog which attacks a person should be put down, the community would not expect the same response if a dog is involved in a fight with another dog, particularly when protecting its own territory.
- [37]Whilst a number of people have attested to the unaggressive nature of Diesel and Pepper towards other dogs, there was evidence before the Tribunal of instances of their aggression towards other dogs or concern that the dogs could be aggressive towards other dogs.
- [38]Daniel Kelly’s evidence was that his dog “Doug” had escaped his enclosure in January 2016 and had been so badly injured by dogs had had to be put down. Mr Kelly said his friend living next door to Mr Herbohn had heard the noise of dogs fighting and looked over the fence to see Mr Herbohn’s dogs “locked on” to Doug. No evidence was provided from this neighbour although Mr Herbohn, in texts exchanged between he and Mr Kelly, [24] appeared to have accepted that Doug jumped into his back yard and was in an altercation with his dogs. Mr Kelly’s evidence was that Doug was a “jumper” and not aggressive towards other dogs and that he felt he had jumped in with Mr Herbohn’s dogs to play. He accepted responsibility as Doug had got out of his yard and into Mr Herbohn’s.
- [39]The only witness to the incident itself available to give evidence was Ms White, the rear neighbour. She said she was at home with her husband when they heard the noise of dogs. As it was dark, they shone torches into Mr Herbohn’s back yard and saw there was another dog being attacked by Mr Herbohn’s dogs. She said they tried to phone Mr Herbohn but could not get in touch. It appeared he was not at home and she said her husband and another nearby resident eventually broke up the fight. She texted Mr Herbohn about what occurred. He thanked her in his reply and mentioned that Pepper had been injured. He expressed concern that his dogs might get classed as dangerous. His text read “they would never ever hurt a human ever they just do not like other dogs at all.” He mentioned cleaning up blood and “skin and flesh parts” after the fight.[25]
- [40]Ms White also gave evidence that after moving into her home and meeting Mr Herbohn she suggested that her dogs meet up with his as they had been showing interest in each other at the fence line. She said he told her that his dogs were “fine with humans” but just did not “like other dogs.”
- [41]Ms Hooper agreed that Mr Herbohn’s dogs were very well trained and well cared for. She also said they were never a problem with children but did not like other animals. She described having to lock up her cat and keep separate her own dogs on occasions Mr Herbohn stayed with her during their relationship. She said during walks with Mr Herbohn he had let his dogs off leash if no other dogs were present but called them back and put them on leashes if other dogs appeared.
- [42]Section 45(1) of the Invasion of Privacy Act 1971 cited by Mr Herbohn prohibits the communication or publication of a private conversation by a party thereto but section 45(2)(b) excludes the application of 45(1) where the communication or publication is made in the course of "legal proceedings", defined in section 45(3) to include proceedings before any tribunal in which evidence is or may be given.
- [43]Section 46 of the Invasion of Privacy Act 1971 provides for the inadmissibility of evidence of private conversations when obtained in breach of section 43. Section 43(1) prohibits, inter alia, the recording of a private conversation but section 43(2) excludes that prohibition where the party making the recording is a party to the conversation as was the case with Mr Philipzig-Mann.
- [44]In my view, the recording and transcript of the conversation between Mr Herbohn and Mr Philipzig-Mann are admissible. In any event, and should that view be incorrect, I have not relied on either in reaching my decision.
- [45]Section 196 of the AM Act cited by Mr Herbohn provides a defence to a prosecution for an offence against s 194 or s 195 and does not apply to a declaration made under s 89.[26]
- [46]Mr Herbohn submitted that Ms Hooper sought to hurt him as a result of her unhappiness with the relationship ending but I found her to be a convincing witness. She was calm and considered in giving her oral evidence. She supported a number of Mr Herbohn’s submissions including as to the good nature of his dogs as regards people and that they were well trained and said that he was a responsible owner. I do not accept that she and Ms Breckon colluded as to the evidence they would give. Their evidence actually differed in a number of respects which I would not expect if they had colluded, including what screaming occurred, whether Ms Breckon was mowing or whether she drove away from her property. I prefer Ms Breckon’s evidence where it differs from that of Mr Herbohn.
- [47]I also found Ms Breckon to be a reliable witness who although honest about her feelings at the time her dog was injured was not emotional or unreasonably critical of Mr Herbohn.
- [48]Ms White also presented as a reliable witness and I accept her evidence as to witnessing Mr Herbohn’s dogs fighting with another dog which needed to be destroyed as a result. I accept her evidence that Mr Herbohn told her his dogs did “not like other dogs” which, in light of what occurred when Doug entered their yard, supports the suggestion that Mr Herbohn’s dogs were aggressive towards other dogs and that, at least after the fight with Doug, he was aware of that propensity. In my view her evidence was insufficient to establish where the incident with Spud took place.
- [49]I accept the evidence of Ms Hooper as to how and where the dog attack on Spud occurred and the evidence of Mr Philippzig-Mann as to where Mr Herbohn initially indicated to him the fight commenced. I do not think anything turned on whether Spud actually entered the backyard or whether Diesel and Pepper exited the backyard. Either way, the attack occurred on Mr Herbohn’s property as a result of Ms Breckon leaving her gate open and Mr Herbohn not properly closing his gate. That Mr Herbohn was prepared to misrepresent what occurred and say other witnesses were lying is a concern and arguably goes to the discretion I am to exercise. Mr Herbohn appeared to believe that establishing that Spud entered a normally secured backyard which he said his dogs would not leave would mean the dangerous dog declaration should not apply. He submitted that would not be a community expectation. I think that is an incorrect view. The AM Act, as I have already stated, does not refer to the location of an attack. Mr Herbohn submitted that community expectation as regards an attack on a person differs from that on another animal. That may be so but the AM Act does not differentiate between an attack on a person or on another animal.
- [50]Mr Herbohn accusation that the Council “made up” that his dogs had a history of aggression and that he was aware of that is false given his knowledge of the attack on Doug.
- [51]Mr Herbohn maintained he was a responsible dog owner, which was generally supported by all witnesses, although he had not registered his dogs. His reason that they could be stolen was insufficient and a clear flouting of legislative requirements.
- [52]It will be sad for Mr Herbohn should he decide to have his dogs, which he clearly loves, euthanised as a result of the declaration I propose to make but that is not a matter proper for me to consider. I have to consider how the objects of the AM Act are best met. I would not order the destruction of Diesel and Pepper as that measure should be a “last resort”[27] and containment as is required by the legislation is likely to ensure incidents where other dogs are injured by them does not reoccur. I have already found that the injury to Spud was “serious” in terms of section 89(2)(7) of the AM Act and resulted in Spud suffering grievous bodily harm such that declaring them to be merely “menacing” is not appropriate. If Mr Herbohn had not been in a position to intervene so quickly, I have no doubt Spud’s injuries would have been even more serious. The propensity of Diesel and Pepper was exposed by these attacks on other animals and the purposes set out in section 59 of the AM Act can be achieved by their future containment.
- [53]I order that the decision of the Isaac Regional Council to declare Diesel and Pepper dangerous 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]QCAT Act, s 21.
[6]Animal (Cats and Dogs) Management Act 2008 (Qld), s 89(1).
[7]Ibid, s 89(2)(a).
[8]Ibid, s 89(2)(b).
[9]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.”
[10]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.”
[11]Ibid, s 89(7).
[12]Ibid, s 89(3).
[13]Animal (Cats and Dogs) Management Act 2008, s 70(1).
[14]Ibid, s 3.
[15]Lee v Brisbane City Council (No 2) [2012] QCATA 64.
[16]Bradshaw v Moreton Bay Regional Council [2017] QCATA 139.
[17]Briginshaw v Briginshaw (1938) CLR 336.
[18]Respondent’s Statement of Evidence at page 43.
[19]Respondent’s Statement of Evidence at pages 43 and 44.
[20]Ibid at page 19.
[21]Ibid at page 23.
[22]Respondent’s Statement of Evidence at page 22.
[23]Ibid at page 23.
[24]Respondent’s Statement of Evidence at page 51.
[25]Ibid at page 48.
[26]Lee v Brisbane City Council op cit.
[27]Thomas v Ipswich City Council [2015] QCATA 97.