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- Unreported Judgment
Roy v Brisbane City Council QCAT 311
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Roy v Brisbane City Council  QCAT 311
EDWIDGE ANGELE GEORGETTE ROY
BRISBANE CITY COUNCIL
General administrative review matters
15 October 2019
15 August 2019
Member Richard Oliver
The decision of the Respondent making the Dangerous Dog Declaration is set aside and instead there be a Menacing Dog Declaration.
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – animals – dangerous dog – where unprovoked attack causing bodily harm – where bodily harm constituted three puncture wounds to the back of the leg – where Dangerous Dog Declaration made – where the dog had undergone training and assessment by an experienced handler – whether the attack was a serious attack – whether Menacing Dog Declaration should be made in lieu of Dangerous Dog Declaration.
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20
Animal Management (Cats and Dogs) Act 2008 (Qld),
Imbrogno & Anor v Brisbane City Council  QCATA 148
APPEARANCES & REPRESENTATION:
A Greenway, solicitor of Lawyers for Companion Animals
Mr Cartledge, solicitor of Brisbane City Council
REASONS FOR DECISION
- Dr Roy is the owner of a Kelpie cross medium sized dog known as “Keziah”. She also has another dog known as “Zeus”. She lives with her husband and son in Kelvin Grove and takes the dogs to Bancroft Dog Park, which is nearby, for exercise .
- On 5 January 2019, late in the afternoon around 6.15pm, she and her son took both dogs to the dog park. When they arrived Sally Mahoney, her partner Nicholas Mayer-Miller, with their daughter Ophelia, who was playing with their dog, were also there.
- Dr Roy released both her dogs in the off-leash area. Ophelia’s dog, on seeing Keziah and Zeus ran over to them and tried to play with Zeus. Ophelia ran after her dog and was holding a stick in her hand and calling out to her dog. On Dr Roy’s version of events she was also waving the stick at Zeus. Dr Roy says she was about two to three metres away from the dogs while this was going on.
- Ms Mahoney and Mr Mayer-Miller were also watching the events unfold but were not quite as close as Dr Roy. They were a little further away with Ms Mahoney on one of the park benches which is depicted in the photos annexed to Dr Roy’s material. They do not agree that Ophelia was waving the stick or calling out, but agree that she was holding a stick which was about 30cm long. In the end this makes little difference to the outcome of this matter.
- While this interaction was going on, Keziah was standing a little way off and about 30 degrees to Dr Roy’s right. Then without warning Keziah circled around behind Ophelia and snapped the back of her leg leaving three puncture wounds. She began to cry, but did not cry out. Mr Mayer-Miller immediately went to her assistance and took her away from the other dogs. Dr Roy leashed her dogs and then went over to Ophelia to see how she was and talk to Mr Mayer-Miller who was trying to stop the bleeding. Dr Roy and Mr Mayer-Miller then exchanged contact details and Dr Roy left the park with her dogs and went home.
- Later that evening, Mr Robert Ferguson, from the Rapid Response Group of the Brisbane City Council (‘the Council’) called at Dr Roy’s home to obtain details of what occurred. He explained that he had been notified of the incident and was investigating the matter. Dr Roy cooperated with Mr Ferguson, and given that there was nowhere on her premises where Keziah could be properly secured, Mr Ferguson seized the dog and took it to the Council shelter at Willawong. The dog was returned to Dr Roy within the next few days.
- As a consequence of the attack on Ophelia, and further investigation by the Council, on 10 January 2019 Dr Roy was given a Proposed Declaration Notice – Dangerous Dog (the Notice) which is notice of the Council’s intention to declare the dog dangerous under s 90 of the Animal Management (Cats and Dogs) Act 2008 (Qld) (‘the Act’). Dr Roy was invited to respond to the proposed declaration which she did through the intervention of Anne Greenaway a lawyer and principal of Lawyers for Companion Animals. However, on 12 February 2019 the Council made the declaration that Keziah was a dangerous dog under s 94 of the Act. Dr Roy sought an internal review of that decision and on 7 March 2019 she received notice that the decision to declare Keziah a dangerous dog was affirmed.
- On 3 April 2019, Dr Roy applied to the Tribunal for a review of the Council’s decision. The Tribunal’s function in reviewing an administrative decision is to consider the matter afresh on the material filed in the proceeding and produce the correct and preferable decision.
- Dr Roy has filed a comprehensive statement setting out her experience with dogs, Keziah’s temperament and behaviour mannerisms as well as what she recalls of events that occurred on the afternoon when Keziah bit Ophelia. In support of that, she also has obtained a statement by way of reference from Sacha Beatson, who is a professional dog trainer and the owner/operator of DogEase. After the incident she observed Keziah’s behaviour and provided some training prior to the internal review. Her evidence is helpful even though she was not available to give evidence at the hearing.
- The Council have provided statements of Mr Ferguson, referred to above, Troy Casey and Mark McConnie. They deal with the factual circumstances of the Council’s investigation which is not controversial. The Council can declare a dog dangerous in certain circumstances. Section 89 of the Act relevantly provides that:
(1) Any local government may, by complying with the requirements of this part –
(a) declare a particular dog to be a declared dangerous dog (a dangerous dog declaration); or
(b) declare a particular dog to be a declared menacing dog (a menacing dog declaration); or
- (2)A dangerous dog declaration may be made for a dog only if the dog:
(a) has seriously attacked, or acted in a way that caused fear to, a person or another animal; or
(b) may in the opinion of an authorised person having regard to the way the dog has behaved towards a person or other animal, seriously attacked, or acted in a way that causes fear to, the person or animal.
- (3)A menacing dog declaration may be made for a dog only if a ground mentioned in subsection (2) exists for the dog except that the attack was not serious.
- (7)In this section seriously attacked means to attack in a way causing bodily harm, grievous bodily harm or death.
- Upon undertaking the investigation and considering the response from the issuing of the Notice, if the Council considers that the requirements of s 89 have been satisfied, it can then make a declaration under s 94. That section provides that:
- (1)The local government must consider any written representations and evidence accompanying them within the period stated in the proposed declaration notice.
- (2)If after complying with subsection (1), the local government is satisfied that the relevant ground under section 89 still exists, it must make the regulated dog declaration for the dog.
- There is of course the internal review process that I mentioned above but here, that review did not alter the Council’s initial decision to make the dangerous dog declaration.
- There is no dispute that Ophelia was bitten on the back of the leg by Keziah and injury constitutes bodily harm as defined in Schedule 2 of the Act.
- Dr Roy contends that as Ophelia was coming towards her waving a stick in the air and shouting at her two dogs and telling Zeus to go away she may have provoked Keziah into becoming excitable which led to the biting incident. However, Mr Mayer-Miller was watching Ophelia and noted that Keziah was very jumpy, and more energetic than the other two. Although he noticed the stick in Ophelia’s hand, he says she was not waving it around and was not threatening any of the dogs, bearing in mind that Ophelia is 8 years old. On this version, Keziah’s attack on Ophelia was clearly unprovoked and unwarranted. I am prepared to accept this was the case. Although provocation is not necessarily a defence, there may well be circumstances where the conduct of the victim was the direct cause of a dog to bite
- In this case, it seems to me that irrespective of either view, it makes little difference to the outcome because Keziah was not threatened, left the company of Dr Roy, moved across about 2 to 3 metres to behind Ophelia and bit her on the leg.
- The evidence from Dr Roy and Ms Beatson establish that Keziah is not what might be described as an aggressive animal. There is no history of any aggressive behaviour or incidents which would cause any concern as to the dog’s behaviour when out in public and in the off-leash area. Ms Beatson has significant experience in animal behaviour and in training dogs. She discussed the behaviour with Dr Roy and kept Keziah at her training facility for some time to ascertain whether or not she exhibited any signs of aggression. In the statement that she has provided, she noted that Keziah was a fearful dog and not a dog that was likely to instigate an attack. In the 18 days that she was in Ms Beatson’s care, she did not show any aggression at all to her or her staff and was a playful and an engaging pet. She was in the reception area when strangers would walk in to the facility and there was no indication that they were threatened or unsafe. Having had the incident described to her, by Dr Roy, she formed the opinion that Keziah’s behaviour may have been as a result of feeling threatened. This is somewhat speculative.
- The Council submits that because the bite resulted in bodily harm within the definition of serious attack, s 89(2)(a) applies and therefore there is no alternative under s 94(2) but to declare the dog a dangerous dog. It is submitted by the Council that once it has considered the representations after giving notice of the proposed declaration, and it is satisfied that the relevant ground still exists, it must make the regulated dog declaration for the dog under s 94(2) of the Act.
- This submission in effect means that the Council has no choice, where it is admitted that the dog did cause bodily harm and irrespective of the circumstances or what is contained in the representations in response to the Notice, but make the proposed declaration. Similarly, if the legislation mandates that the Council must make the declaration in these circumstances, then it follows that this Tribunal must also make the declaration and the review process, both internally and before this Tribunal, is pointless. The Council relies on the following statement from Imbrogno & Anor v Brisbane City Council:
The learned member found that Thor and Zeus had seriously attacked Miffy. The learned member observed that there was no discretion afforded to the Tribunal to reach a different decision (other than to make the regulated dog declaration if the attack results in grievous bodily harm). As was held in Lee v Brisbane City Council (No. 2)  QCATA 6, all the relevant circumstances need to be taken into account in the exercise of the discretion. The discretion involves the decision maker, after considering all of the relevant circumstances including submissions and evidence by the dog owner, determining whether a dog has seriously attacked the person or another animal. Having found that Thor and Zeus had seriously attacked Miffy within the meaning of s.89 of the AM Act, s.94(2), required the learned member to confirm the decision to declare Thor and Zeus to be dangerous dogs.
- In Imbrogno there was some confusion about which dog actually attacked Miffy and generally a dispute about the circumstances of the attack. Here there is no dispute that Ophelia was bitten by Keziah. But, after she had 18 days training with an experienced trainer and exhibited no signs of aggression, the question might be asked whether Keziah is the same dog now (at the time of the review hearing) as he was on the day of the attack. Alternatively having regard to s 94(2) whether relevant grounds for making the declaration still exists.
- I raise this issue because the Council contends that the question for determination, having considered all of the evidence including that before the reviewer, is whether the relevant ground under s 89 still exists after considering ‘any written representation and evidence accompanying them’ pursuant to s 94(1). If nothing changes, or materially changes, then the local government ‘must’ make the regulated dog declaration for the dog.
- This is in stark contrast with section 89 which confers the power on the local government to make the declaration. Even where it is established that a serious attack has occurred (as defined) the local government, under s 89, still has a discretion whether or not to make the declaration upon complying with the requirements of Part 4.
- The incongruity between s 89 and s 94 is plain, one section confers a discretion and the other a mandatory obligation to make the declaration once any representations are taken into account. One might ask in circumstances such as these the purpose of the representations. The difficulty for the dog owner is that once the relevant ground is established, the discretion goes. In some cases the relevant ground will always exist despite the circumstances of the bite and what is said in response to the Notice.
- A simple example might be where if, inadvertently, a victim stood on a dog’s paw and it reacted instinctively by biting the victim’s foot resulting in a puncture wound thereby causing bodily harm. This, by definition is a serious attack. In those circumstances, where the dog has no history of aggressive behaviour and is a friendly obedient pet, it will be difficult to see as a matter of common sense how it could be declared a dangerous dog. It would seem that if such a circumstance existed, and a full explanation was provided along these lines in response to the Notice, the Council would have to conclude that the ‘relevant ground’ under s 89 did still exist and would have to (must) make the Declaration. Despite how strong the case is in favour of the dog, if the relevant ground still exists then the Council, on the argument propounded in this application must make the declaration.
- There will of course be situations where there is a dispute of fact as to whether the relevant ground is made out, e.g. whether the dog was the culprit. In those cases, the response to the Notice might be of assistance and the Council, and the Tribunal standing in the shoes of the decision maker, could find that the relevant ground did not ‘still exist(s)’. But there are other situations, like the example above, and the circumstances in this matter, where after training and further evidence about the dog’s demeanour, an appropriate exercise of discretion might well be that the Dangerous Dog Declaration should not be made.
- On a generous reading of s 94(2) it might be argued that the reason the legislature inserted the reference to the Council being satisfied that the relevant ground still existed was to consider all of the circumstances surrounding the attack, not confined to the mere fact of the definition of serious attack having been satisfied. This is somewhat consistent with the Explanatory Note on s 94:
Clause 94 – Making declaration
Clause 94 provides that a local government must consider any written representations or evidence it receives during the period given under clause 90 (Notice of proposed declaration).
Clause 94(2) provides that, if after considering representations or evidence the local government is satisfied that the dog is a regulated dog under clause 89, it must make the declaration about the dog.
- The difference is the generality of what the local government needs to be satisfied of before it ‘must’ make the declaration. However, I am not sure that is of particular assistance here for the applicant.
- Had it not been for the mandatory wording of s 94(2) I would have been inclined to set aside the Dangerous Dog Declaration in reliance on the evidence of Ms Beatson the effect of which is that this was a one-off incident and unlikely to be repeated.
- There is one other aspect to this case that was raised during the submissions. That is whether the Tribunal could made a menacing dog declaration. It was submitted by the Council that the application of s 89 did not permit such a course. It was difficult to fathom the argument why this was the case when it seems clear the section provides for this very alternative.
- Section 89(3) makes provision for making a menacing dog declaration only if a ground mentioned in subsection (2), serious attack exists. Despite that wording, if in fact the attack was not serious, then a menacing dog declaration can be made. However, subsection (3) is only engaged if subsection (2) is satisfied that is there is a serious attack, causing bodily harm.
- The attack on Ophelia, although resulting in the three small puncture wounds which caused bleeding was, from the evidence, more in the nature of a snap rather than a vicious bite. There are statements from her parents describing the incident, and the fact that she was distraught from the bite, but they do not allude to any ongoing physical or psychological issues as a consequence of it. In the absence of any evidence of any ongoing treatment or adverse consequences from the wound, I conclude that this attack was one to which s 89(3) applies, that is, an attack that is ‘not serious’.
- Therefore, considering the matter afresh, I have come the conclusion that the Dangerous Dog Declaration should be set aside and instead, there should be a Menacing Dog Declaration.
- Published Case Name:
Roy v Brisbane City Council
- Shortened Case Name:
Roy v Brisbane City Council
 QCAT 311
Member Richard Oliver
15 Oct 2019