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McDonald v Bundaberg Regional Council QCAT 177
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
McDonald v Bundaberg Regional Council  QCAT 177
SHARON JUNE MCDONALD
BUNDABERG REGIONAL COUNCIL
General administrative review matters
3 July 2019
1 November 2018
The decisions by the Bundaberg Regional Council dated 23 October 2017, which were confirmed on 23 November 2017 following internal reviews, to declare Mia and Smokey as menacing dogs are set aside.
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – general administrative review – menacing dog declaration – whether declaration appropriate – Menacing dog declaration pursuant to ss 94 and 95 of the Animal Management (Cats and Dogs) Act 2008 (Qld) – allegation of killing cats – circumstances of roaming
Animal Management (Cats and Dogs) Act 2008 (Qld),
APPEARANCES & REPRESENTATION:
L Hann, an officer of the Bundaberg Regional Council
REASONS FOR DECISION
- This case relates to a decision made by the Bundaberg City Council (the council/the respondent) to declare two dogs (Mia and Smokey) owned by Ms Sharon McDonald (Ms McDonald/the applicant) as menacing.
- The relevant legislation is the Animal Management (Cats and Dogs) Act 2008 (Qld) (‘the Animal Management Act’), which provides that a menacing dog declaration may be made for a dog only if the dog has attacked, or acted in a way that caused fear to, a person or another animal; 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. The Animal Management Act states that a declaration may be made, not must be made. The council has a discretion not to proceed with making a declaration that a dog is menacing. Upon external review this tribunal operates upon the same basis, and makes the decision afresh based on the evidence before it at the hearing, effectively as the authorised person. In making such decisions, the council, and this tribunal, must make decisions that promote the responsible ownership of dogs. In part, that purpose is achieved by imposing obligations on particular persons to ensure that dogs do not attack or cause fear.
- Accordingly, in making its decision the tribunal must consider the alleged act(s) that have led to the original decision made by the council and must also consider the actions of the animal owner, in this case Ms McDonald, to determine whether she is a responsible owner of dogs and whether she has acted to ensure that her dogs do not attack or cause fear. The focus of the tribunal is therefore to consider the past, the present and, to some degree, hypothesise about the future.
- The tribunal considered three relevant events; the events of 7 or 8 January 2017, the events of 2 May 2017 and the events of 4 September 2017. At the tribunal hearing, almost all of the evidence related to the events of 4 September 2017.
- The council investigated alleged dog attacks upon a cat owned by Ms Ruth Bauer during the evening of 7 January 2017 or the early hours of 8 January 2017. It was suggested that one of three dogs may have killed the cat. The authorised person did not have sufficient evidence to warrant making a declaration with respect to Mia and Smokey, but the authorised person did issue a good behaviour notification to Ms McDonald as their owner on 24 February 2017. In issuing the good behaviour notification, the authorised officer, Ms Charmaine Mawby, said that ‘due to the fact that there was no evidence of which dog, if indeed any dog at all, had killed Mrs Bauer’s cat, all three dogs were placed on good behaviour notification’. Two of those three dogs were Mia and Smokey. Neither Ms Bauer nor Ms Mawby gave evidence at the tribunal hearing. Indeed, the respondent did not call evidence relevant to the events of 7 or 8 January 2017, but the brief of evidence provided for the tribunal’s consideration did include material relevant to these events and it was clear that, to some degree at least, the respondent did take these events into account in concluding that Mia and Smokey were menacing dogs. At the hearing, the respondent did not urge the tribunal to make findings of fact consistent with the complaints made by Ms Bauer.
- On 2 May 2017, an authorised person responded to an attack on a cat by two dogs that resulted in the death of a cat at approximately 8 PM. It was alleged that Ms McDonald's dogs, Mia and Smokey, were the dogs that attacked and killed a cat owned by Ms Genevieve Treacey (‘Ms Treacey’). The subsequent investigation resulted in a proposed dangerous dog declaration against Mia and Smokey. Ms McDonald made an application for review of this decision and as a result the proposed declarations were withdrawn due to insufficient evidence to positively identify Mia and Smokey as the offending dogs. Once again, the authorised person investigating the matter was Ms Mawby. In her statement, Ms Mawby said that the injury sustained to the cat was ‘quite possibly indicative of a dog attack’. Ms Mawby went on to state:
"I briefly spoke with Ms Treacey who was very distraught and was demanding that the dogs that killed her cat be destroyed. Ms Treacey was certain that the dogs came from 5 Sunseeker Avenue Bargara. I immediately drove to 5 Sunseeker Avenue to discover both dogs were in the back porch area, tied up, with harnesses on, asleep on their beds. Neither dog showed any visible sign of having blood on them or being recently washed. I inspected the yard thoroughly with the torchlight and did not find any evidence of where the dogs had escaped. Regardless of my findings at the time, I impounded the dogs until I had a chance to inspect the yard in daylight hours for which the yard was deemed adequate at the time by both myself and Officer Paul Seward."
- The respondent did not call evidence relevant to the events of 2 May 2017, but Ms Treacey did give evidence and the brief of evidence provided for the tribunal’s consideration did include material relevant to these events. At the hearing, Mrs Treacey said that the dogs killed her cat and attacked her. She did not make the allegation about being attacked on that date when she complained to the investigating officer. Given concerns about the quality of the evidence, the respondent did not take these events into account in concluding that Mia and Smokey were menacing dogs. At the hearing, the respondent did not urge the tribunal to make findings of fact consistent with the complaints made by Ms Treacey regarding the events of 2 May 2017.
- On 4 September 2017, Bundaberg Regional Council was contacted by people from two separate properties advising of wandering black “Staffy” dogs in Natalie Street Bargara. An authorised person responded to the notifications and identified that Mia and Smokey had escaped their enclosure at Ms McDonald’s property, and a member from that household was out looking for the dogs. The authorised person continued their search for the dogs without success and returned to Ms McDonald’s property to identify that the dogs had been found by the member of the household. The investigation of this matter was referred to another authorised person (being a person who was not involved with the previous investigations). During the investigation, statements were obtained by two persons who advised that they were in fear of the dogs while they were in Natalie Street. The authorised person made menacing dog declarations as a result of this incident, and in doing so also considered the previous matter in January 2017. The incident in May 2017 was not taken into consideration by the investigating authorised person. In making the regulated dog declaration notice, the authorised person did so on the basis that the dogs ‘acted in a way that caused fear to a person and animal’. In addition to making the declaration, the authorised person issued the applicant with an infringement notice, alleging that the applicant failed to ensure that her animals were not wandering at large, for which she was fined the sum of $252.
- The applicant acknowledged that:
- (a)she is the owner of Mia and Smokey;
- (b)she did receive a good behaviour notification following the events of January 2017; and
- (c)Mia and Smokey were roaming the streets on 4 September 2017.
- The applicant disputes that her dogs put anyone in fear on 4 September 2017. She says that:
- (a)the complainant to the council was Ms Treacey;
- (b)Ms Treacey advanced onto the street and pursued her dogs with an iPad in hand (to obtain photographic and video evidence);
- (c)the video footage obtained indicates that the dogs did not approach Ms Treacey;
- (d)Ms Treacey was not in fear;
- (e)the dogs were eventually found walking with a lady and her own dogs, who said that she noticed the dogs and she let them walk down the road with her and her dogs;
- (f)following the events of 4 September 2017, the applicant installed a large cage within her property and built an electric fence around her yard (in accordance with recommendations of the Bundaberg Regional Council);
- (g)Smokey and Mia have not escaped her yard since the installation of the cage and electric fence; and
- (h)she has paid the fines issued by the council for allowing her dogs to wander.
- The applicant says that Ms Treacey has a feud with the applicant (and her daughter and her partner) and that Ms Treacey used the opportunity of Mia and Smokey being on the street to advance her ulterior cause. Her cause was to further “attack” the applicant and her family. The applicant’s daughter is Ms Melissa Paten (‘Ms Paten’), and Ms Paten’s partner is Mr Ashley Achilles (‘Mr Achilles’). They live at 9 Natalie Street Bargara, which is next door to Ms Treacey, who lives at 7 Natalie Street.
- At the tribunal hearing, the applicant called two witnesses – her daughter (Ms Paten) and her son, John Henry Joseph Ryder (‘Mr Ryder’). The applicant then gave evidence.
- Ms Paten gave evidence to the tribunal. Her evidence included confirmation of the ongoing dispute between her family and (her neighbour) Ms Treacey. Ms Treacey has complained to the council about Ms Paten’s dogs. She also spoke about her fencing dispute involving Ms Treacey, regarding their adjoining fence. She confirmed that on the morning of 4 September 2017, she was at work when the applicant, that is her mother, contacted her by telephone at approximately 9:30 AM. During that call, the applicant told her that Mia and Smokey had been taken by the council from the applicant’s address. The applicant said that her dogs had been collected because they had been roaming. Information received by the applicant was that the dogs had been roaming in the yard of 7 Natalie Street, Bargara. After her work shift was concluded, Ms Paten returned home to her address and viewed CCTV footage which is located on her property, and from that she was able to detect some of the movements of Mia and Smokey that morning. The tribunal had the benefit of viewing the CCTV footage during the hearing. The front camera is positioned in such a way as to capture the front yard of the property at 9 Natalie Street Bargara and to view the corner of the front property at the adjacent 7 Natalie Street. The tribunal also viewed footage from a second camera positioned on the side of the property at 9 Natalie Street with a slightly better view into the front yard area of the property at 7 Natalie Street. The tribunal observed Mia and Smokey come into and then out of view from 9 Natalie Street. From that angle, there is vision of the front of 7 Natalie Street, and it is clear that the dogs went past that property in order to get to 9 Natalie Street. From the apparent speed at which the dogs were running past the front of 7 Natalie Street, the tribunal concludes that it is unlikely that the dogs went into the front yard at 7 Natalie Street. Mia left the front yard of 9 Natalie Street and went across the road. Smokey followed a little while after Mia. The vision shows the dogs going towards 4 Natalie Street, and then next door to 6 Natalie Street. 6 Natalie Street was occupied by Ms Ruth Bauer. Mia played in the front garden and while still at number 6, Smokey joined Mia in playing in the front garden. The dogs then went out of camera view, but it appears that they continued along Natalie Street, away from Watson Street which is the direction from which they had originally entered Natalie Street. The vision then shows Ms Treacey came from the direction of 7 Natalie Street with what appeared to be an iPad, and she appeared to be taking photographs or filming something down Natalie Street. It was clear to the tribunal that Ms Treacey was photographing or filming Mia and Smokey as they travelled down the street, away from her. Ms Treacey was not accompanied by anyone nor was she holding anything other than the iPad. The vision shows Ms Treacey returned to her home. She then came back out onto the street, where she travels in front of 9 Natalie Street, away from the direction of Watsons Road. At one point, the vision shows Ms Treacey turn to the cameras and wave. The vision shows that police then arrived. The vision did not show any cats, which is relevant given the specific allegation by Ms Treacey that the dogs had bailed a cat up a tree.
- Ms Paten said that it was unsurprising that the dogs entered Natalie Street from Watson Street, given that the applicant’s property is close to Natalie Street and the usual travel route between the properties is to travel along Watson Street from the applicant’s property to Natalie Street.
- From the evidence of Ms Paten, it was clear to the tribunal that there is animosity between Ms Paten and her partner Mr Achilles, on the one hand, and their neighbour Ms Treacey on the other. They have ongoing issues as neighbours. Ms Paten said that the relationship between the two households had deteriorated to the point where she felt Ms Treacey sought to punish them, rather than to act as a result of any genuine concern in relation to her mother’s dogs Mia and Smokey. She spoke of the false complaint which she attributed to Ms Treacey against Mia and Smokey in May 2017.
- Mr Ryder gave evidence to the tribunal. Mr Ryder assisted in finding Mia and Smokey on 4 September 2017. As part of his travels, he went to the Causeway area at Bargara and found the dogs who were, by this time, in the company of a woman and her own little dog. He engaged in conversation with the woman and determined that she was not in fear, nor did her little dog appear to be fearful of Mia and Smokey. Mr Ryder then took Mia and Smokey back to their residence.
- The applicant gave evidence to the tribunal, where she spoke of the ongoing dispute between members of her family and Ms Treacey. The applicant said that she lives in a home at Bargara with her two sons, being the address where Mia and Smokey are kept. She said that she has a 6-foot-high fence and since the incident on 4 September 2017, she has installed a caged area, with approximate dimensions of 10m x 1m, with further fencing and the dogs have not escaped the property since that date. On 4 September 2017, she was able to ascertain that the dogs escaped her yard as a result of digging out. As a precaution to ensure that does not occur again she has electrified her fence at the top and the bottom, meaning that the dogs will not dig out and cannot jump out. She gave evidence to the tribunal of having observed her dogs touch the electric fence and it was obvious to her that they would not wish to do so again. Since the council made the menacing dog declarations, the dogs are walked on a lead, one at a time. The applicant spoke about the dogs being wrongly accused of events in May 2017. Her evidence was that Ms Treacey is not genuinely in fear of Mia and Smokey but made complaints to the council as a result of her ongoing dispute with members of the applicant’s family.
- At the tribunal hearing, the respondent called Ms Treacey. She gave evidence that she felt fear because Mia and Smokey had attacked her, and killed her cat, on 2 May 2017. She gave evidence that at this time the dogs were on her property where she resides at 7 Natalie Street Bargara. The dogs were on her driveway, about 5 m from her front door. She gave evidence that the dogs had often been out and that they knew the area because they would try to get to 9 Natalie Street Bargara. Ms Treacey described herself as a dog lover but said that after her cat had been killed, she became fearful of all dogs. She spoke of her neighbours Ms Paten and Mr Achilles. She said that Mr Achilles had threatened her with his own dog and that he had been found guilty of stalking her last year.
- Ms Treacey gave evidence of the events that occurred on 4 September 2017. She said that early that morning she was on her front veranda when she heard yelling. She looked over the road and could see a cat up a tree and Ms Ruth Bauer, a resident who lives across the road, was yelling because dogs (Mia and Smokey) were on her property. Ms Treacey gave evidence that she recognised the dogs because they had attacked her in the past. She said that she ran inside and asked her mother, who lives with her, to ring the council and said that dogs were out terrorising the street. Ms Treacey said that she ran out the front of her property and saw that the dogs had moved down the street. Ms Treacey could see the dogs had moved a few houses down the road so she collected her iPad so that she could gain evidence. She took photographs and she could see the dogs running in and out of properties. She did say that they did not run at her and that she kept her distance. Ms Treacey said that Ms Bauer was terrified, and that she phoned 000 for assistance.
- Ms Treacey had agitated for the making of a menacing dog declaration to not only the investigating authorised person but many others including the Regional Mayor, CEO and all Counsellors. In her email to this group dated 13 September 2017, her language was emotive and much of her attention was directed towards the actions of her neighbours Ms Paten and Mr Achilles. She also complained of four (not two) dogs. She commented as follows:
"It is perplexing when two black staffy dogs, that have been identified on numerous occasions as attacking killers who create fear and panic in the community, are continually returned home, without consequence. These dogs are dangerous as proven by evidence. … The 2 black staffys are Ashley’s partner Melissa Paten, they reside with Melissa’s mother/family.… After over 19 months of a QCAT matter that Ashley and Melissa brought against my mother it was recently withdrawn. A detailed report by Justice Department advisor was unable to verify any claims they had made, all false information from them (Ashley and Melissa). No doubt when BRC ‘fully’ investigated fears I had expressed to BRC of the two tan staffy dogs that reside with Ashley and Melissa (I believe they are related to the two black staffys), they viewed footage of their dogs acting aggressively. I was advised by the police that day (Ashley/Melissa) had footage of their dogs that were stirred up (growling and barking) at the dividing fence. That would have been Tuesday 02 May 2017, when our beloved cat Jasper was killed."
- In her criticism of the council’s decision, Ms Treacey said that the council had applied the wrong law by adopting the evidentiary standard of beyond reasonable doubt, rather than on the balance of probabilities. It is not clear as to which dog or dogs she suggests were the cause of the death of her cat on 2 May 2017. It also seems clear that her main attention is directed at the actions of her neighbours Ms Paten and Mr Achilles, rather than Ms McDonald. In an email dated 4 September 2017 to the CEO of the council, Ms Treacey exaggerated her concerns by stating that ‘Clearly BRC (the council) support roaming dogs going onto properties and attacking, killing people and animals and causing damage to property (emphasis added)’.
- At the tribunal hearing, Ms Treacey said that she was threatened by dogs that lived next door to her because her neighbours had used the dogs as a means of threatening her.
- The council called local laws officer Gregory Raymond Borg to give evidence. He said that he had viewed the CCTV footage from 4 September 2017 and taken statements from Mrs Treacey. He did not feel that there was ‘a high degree of fear’.
- In an email from Mr Adam Gardner, coordinator of regulatory services at the council, to Ms Treacey dated 21 September 2017, he said amongst other things that the dogs were returned after the dog owner conducted remedial work to contain the dogs to his satisfaction. He stated, ‘The dogs had been roaming and there was no other evidence of other offences provided to the council so work to suitably contain the dogs to the property was the only remedial action required to address this issue’. In a statement signed by Mr Gardner dated 2 March 2018, he confirmed that the council considered the events of 4 September 2017 and January 2017, but the incidents in May 2017 were not taken into consideration by the investigating authorised persons. That was because the council made the finding that there was insufficient evidence to properly identify Mia and Smokey as the offending dogs.
- The council did not call Ms Ruth Bauer to give evidence, however the tribunal gives the statement by Ms Bauer little weight as it is untested. Also, there is some suggestion that Ms Bauer’s evidence is unreliable. Investigating officer Charmaine Mawby wrote in her statement dated 1 July 2018, in relation to her investigation relating to the death of Ms Bauer’s cat, that ‘the cat in question was lying dead on the front lawn intact and not ripped to shreds as Ms Bauer had claimed’.
- The council did not call Ms Barbara Treacey, but the tribunal does have a statement by her dated 15 September 2017 where she says that she has a high fear of the dogs due to previous incidents and aggression at the time. The tribunal gives that statement little weight given it is untested.
The tribunal’s findings
- At the hearing, it was not contested that Ms McDonald was the ‘responsible person’, as the person with immediate control or custody of Mia and Smokey and that she is the person occupying the place at which the dogs are usually kept.
- The tribunal was not able to find on the evidence that the dogs were ‘attacking killers, nor have they created fear and panic in the community’. To that extent, there was no evidence provided to the tribunal to suggest that the dogs are menacing. Ms Treacey’s allegations are rejected by the tribunal. Ms Treacey was an unconvincing, and unreliable, witness. She was emotive in her delivery and in the view of the tribunal, she exaggerated her concerns. Her evidence was that after becoming aware of the dogs being on the street, she armed herself with an iPad and ran down the street in an attempt to obtain photographic evidence. Her recollection of the events that followed were inconsistent with the video footage retrieved from the CCTV footage supplied by Ms Paten. After pursuing the dogs down the street, Ms Treacey walked back to her home in a casual manner.
- On the balance of probabilities, the tribunal makes the following findings of fact:
- (a)There is insufficient evidence to positively identify Mia and Smokey as the dogs that were involved in dog attacks/incidents on 7 or 8 January 2017. There was no evidence of which dog, if indeed any dog at all, had killed Mrs Bauer’s cat.
- (b)The respondent council did issue a good behaviour notification to the applicant in relation to Mia and Smokey on 24 February 2017.
- (c)There is insufficient evidence to positively identify Mia and Smokey as the dogs that attacked and killed a cat owned by Ms Treacey on 2 May 2017. The tribunal accepts the statement of Ms Mawby that shortly after the attack, both dogs were in the back porch area, tied up, with harnesses on, asleep on their beds. Neither dog showed any visible sign of having blood on them or being recently washed. Ms Treacey implicates other dogs. The tribunal also notes that the respondent did not take the events of 2 May 2017 into account when making its decision that the Mia and Smokey were menacing.
- (d)Regarding the events of 4 September 2017:
- The dogs Mia and Smokey were wandering at large and did run past the property owned by Ms Treacey, but did not approach or go near to Ms Treacey;
- By allowing the dogs to wander, the applicant breached the good behaviour notification and later the council appropriately issued an infringement notice to the applicant;
- By objective standards, Ms Treacey was not in fear of the dogs. Ms Treacey ran out onto the street with only an iPad and ran in the direction of the dogs;
- There is insufficient evidence for the tribunal to find that Mia and Smokey attacked any person or animal;
- There is insufficient evidence for the tribunal to find that Mia and Smokey did cause anyone fear;
- There is insufficient evidence for the tribunal to find that Mia and Smokey did act in a menacing manner;
- A member of the public was not in fear of the dogs on that occasion, by allowing the dogs to walk with her and her own dogs, which suggests that the dogs were not menacing; and
- The complainant Ms Treacey was motivated to gather evidence, and make a complaint, by extraneous matters.
- (e)the applicant has installed adequate restraining equipment to better ensure that Mia and Smokey do not wander at large.
- There is insufficient evidence before the tribunal to positively identify Mia or Smokey as having injured any person or animal or put any person or animal in fear. The tribunal is not satisfied that Mia or Smokey have attacked, or acted in a way that caused fear to, a person or another animal; or may, in the opinion of the tribunal having regard to the way the dogs have behaved towards a person or another animal, seriously attack, or act in a way that causes fear to, the person or animal. In any event, given the remedial work undertaken by Ms McDonald to secure her premises, the tribunal would exercise a discretion to decline to make a declaration that the dogs are menacing.
- The decisions by the Bundaberg Regional Council dated 23 October 2017, which were confirmed on 23 November 2017 following internal reviews, to declare Mia and Smokey as menacing dogs are set aside.
Animal Management (Cats and Dogs) Act 2008 (Qld), s 89. A ‘declared menacing dog’ includes a menacing dog declared under section 94 to be a menacing dog: see s 62.
 Ibid s 3.
 Statement of Charmaine Mawby dated 31 July 2018, 5.
 Ibid 6.
 Ms McDonald lives at 5 Sunseeker Avenue Bargara.
 A ‘regulated dog’ is a declared dangerous dog; or a declared menacing dog; or a restricted dog [Animal Management (Cats and Dogs) Act 2008 (Qld) s 60].
 Infringement notice dated 12 September 2017.
 Statement of Charmaine Mawby dated 31 July 2018, 4.
Animal Management (Cats and Dogs) Act 2008 (Qld), s 10.
- Published Case Name:
McDonald v Bundaberg Regional Council
- Shortened Case Name:
McDonald v Bundaberg Regional Council
 QCAT 177
03 Jul 2019