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Chaplin v Sunshine Coast Regional Council QCAT 371
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Chaplin v Sunshine Coast Regional Council  QCAT 371
KARA ROSE CHAPLIN
SUNSHINE COAST REGIONAL COUNCIL
General administrative review matters
29 November 2019
18 November 2019
Member Dr Collier
The decision of the Respondent is confirmed.
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – regulated dogs – declared dangerous dog – dog destruction order – where one animal was killed and another two injured as a result of three separate attacks by a dog
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),
Balens v Moreton Bay Regional Council  QCAT 297
Bradshaw v Moreton Bay Regional Council  QCATA 139
Briginshaw v Briginshaw (1938) 60 CLR 336
Lee v Brisbane City Council (No 2)  QCATA 64
Nguyen v Gold Coast City Council Animal Management  QCATA 121
Thomas v Ipswich City Council  QCATA 97
N Edridge, of counsel
G Lalor, Supervisor, Prosecutions and Reviews
REASONS FOR DECISION
- Kara Chaplin owns a 7-year old neutered male dog, ‘Sarge’. Sarge is a 27kg American Staffordshire (or Pit Bull) Terrier cross. Ms Chaplin also owns other animals, including an older female dog, ‘Nala’. But this decision involves only Sarge.
- Ms Chaplin has a partner, Eli Madigan, and, together, they care for three children: one aged 8, and two infants.
- Unfortunately, Sarge attacked, inflicted injury to, or caused the death of, other dogs on three occasions: in 2016, 2018, and 2019.
- In 2016 Ms Chaplin and her family, along with dogs Nala and Sarge, lived in a rental property in Cooroy. On 18 August 2016 Nala and Sarge escaped from the property through a faulty gate that was not properly closed, and Sarge attacked and killed a small dog being walked on a leash in front of the property.
- Ms Chaplin was distressed by this incident and consoled and compensated the owners of the small dog for the incident.
- As a result of this incident Sarge was declared by the local authority, in this case Noosa Shire Council, as a Regulated Dangerous Dog (‘RDD’). Ms Chaplin also took Sarge for some obedience lessons, but the dog did not complete the course of training.
- Ms Chaplin and her family subsequently moved to Peregian Springs on the Sunshine Coast and informed the local authority about her ownership of Sarge and his RDD classification.
- Owning a RDD imposes a number of particular obligations on the owner of the dog. These include:
- (a)Housing the dog at a nominated and approved residential address;
- (b)Confining the dog to an approved enclosure;
- (c)Ensuring that the dog is identifiable as a RDD by having the dog wear a distinctive collar and tags;
- (d)Having the dog implanted with a Prescribed Permanent Implantation Device (‘PPID’);
- (e)Placing a sign at every entrance to the property where the dog is kept warning of the presence of a dangerous dog;
- (f)Ensuring that the dog is muzzled at all times when outside the approved property;
- (g)Ensuring that the dog is under adult control at all times.
- The second incident took place on 13 March 2018 when Mr Madigan took control of Sarge for the purpose of exercising the dog. This involved Mr Madigan riding a bicycle while holding Sarge’s leash as Sarge walked or trotted beside Mr Madigan. At this time another dog was being walked by its owners on a leash and under control when Sarge became startled by their presence. Sarge then charged off, dislodged Mr Madigan from his bicycle, broke free of his control, and attacked the other dog. Whether one or both dogs sustained any injury is not certain, but there is no doubt that Sarge was the aggressor in this incident. Sarge was not wearing a muzzle while under Mr Madigan’s control.
- As a result of this incident Mr Madigan was charged and fined $883 in the Magistrates Court.
- On 29 March 2019 Sarge was being kept at his approved premises when he managed to escape from the house through a garage door that had failed to close completely because it became stuck due to children’s toys preventing its complete closure. Being within the house Sarge was not wearing a muzzle. Once outside the property Sarge attacked and savaged a dog being walked on a leash by its owner, causing serious injuries to the innocent dog.
- Again, Ms Chaplin was very remorseful for the incident and paid $881.38 for the veterinary bills of the innocent party. She was also charged as a result of the incident and fined and penalised $3,829.40 in the Magistrates Court.
- Following notification of this incident to the Sunshine Coast Regional Council (the ‘Council’), on 4 April 2019 Mr Michael Gilbert, Senior Response Services Officer for the Council, attended Ms Chaplin’s property and seized Sarge. Sarge has been in Council custody since that date.
- On 16 April 2019 the Council, through its authorised officer, Michael Gilbert, issued Ms Chaplin a notice for the destruction of Sarge.
- On 9 May 2019 Ms Chaplin requested the Council to undertake an internal review of its decision to order the destruction of Sarge. The request to review the decision was accompanied by several documents including:
- (a)a 7-page submission in support of her request for review prepared by solicitors for Ms Chaplin;
- (b)a veterinary behaviour assessment by Rimini Quinn dated 26 April 2019;
- (c)a dog behavioural assessment by David Haywood dated 9 May 2019; and
- (d)8 personal references for Ms Chaplin.
- The review of the decision made by Mr Gilbert was undertaken by Mr Guy Lalor of the Council. Mr Lalor, Supervisor Prosecutions and Reviews for the Council, conducted the review and, in his decision dated 23 May 2019, confirmed the earlier decision to order Sarge’s destruction.
- Ms Chaplin now seeks to have this Tribunal set aside the decision of the Council to confirm the order to have Sarge destroyed.
- In reviewing a decision, the Tribunal does so by way of a fresh hearing on the merits. 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. The Tribunal stands in the shoes of the decision maker and is required to produce the correct and preferable decision.
- 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.
- The principal legislation regulating domestic cats and dogs which gives the Tribunal power to hear this matter is the Animal Management (Cats and Dogs) Act 2008 (Qld) (‘AM Act’).
- Section 3 of the AM Act sets out the purpose of the Act, which includes to promote the responsible ownership of cats and dogs.
- The AM Act empowers a local government to declare a particular dog a dangerous dog if the dog has seriously 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.
- A serious attack means to attack in a way causing bodily harm, grievous bodily harm or death.
- 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.’
- 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.
- 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.
Evidence for the Council
- Sarge has been the aggressor in each of three documented instances where he has been involved in an altercation with other dogs.
- As a result of the attack on 29 March 2019, Sarge was taken into the custody of the Council on 4 April 2019 and has been held at the Council pound since that date.
- Michael Gilbert, Senior Response Services Officer, an authorised officer of the Council, issued an order on 16 April 2019 for the destruction of Sarge. Mr Gilbert testified that he has been in his position with the Council for five years and this is only the second occasion in that time that he has ordered the destruction of a dog.
- When asked why he seized Sarge on 4 April 2019 Mr Gilbert replied that Sarge was not in his prescribed enclosure.
- In his testimony Mr Gilbert agreed that Ms Chaplin had:
- (a)When she moved into the Council’s region, informed the Council in a timely manner that she possessed a RDD, Sarge;
- (b)Always paid her animal registration fees on time;
- (c)Demonstrated considerable remorse at Sarge’s aggression and injury to other dogs; and
- (d)Appeared to him as an honest person in her comments and dealings.
- Exhibit 1, a 3-page extract from the Council’s website describing ‘Regulated dogs’ was shown to Mr Gilbert. He was not familiar with the extract. The extract does not mention the obligation on the owner of a RDD to confine their dog to a suitable enclosure.
- Exhibit 2, a copy of the Regulated Dangerous Dog Registration renewal notice issued for Sarge dated 1 September 2018, was tendered by the Council. It comprised two A4 pages: page 1 dealing with the registration; and page 2 being headed ‘Mandatory conditions for keeping a Regulated Dangerous Dog’. Mr Lalor for the Council stated that the two pages of Exhibit 2 are sent to dog owners on one A4 leaf with the registration details on the front and the mandatory conditions on the back.
- Ms Chaplin testified that she has no recollection of having seen page 2 of Exhibit 2.
- Mr Gilbert testified that premises where each RDD known to the Council lives is inspected annually for compliance. The Council tendered Exhibit 3, a copy of a notice sent by post to Ms Chaplin detailing the results of an audit of her premises pertinent to Sarge conducted on 15 November 2018. This notice discloses that, at the date of the audit, Ms Chaplin’s premises were compliant. A portion of the letter containing the notice read:
Council has attached an information sheet in relation to the mandatory conditions for keeping a regulated dangerous dog. Please ensure that you are aware of and adhere to the referenced conditions.
- Exhibit 3 contains eight pages, including two pages headed ‘Mandatory conditions for a Declared Dangerous Dog’, and one page headed ‘Other important laws for keeping a declared dangerous dog’. Ms Chaplin testified that she recalled receiving pages 7 and 8 of the notice disclosed as Exhibit 3, but not the remainder of the document.
- I am satisfied that Ms Chaplin had received several notices describing accurately and in detail her obligations as the owner of a RDD. She failed either to read, understand, or comply with her obligations under the AM Act on a regular or continuing basis up to the occasion of the third attack by Sarge.
- Ms Tamara Brumby, Supervisor, Business Operations for the Council, gave evidence about the occasion when, on 18 October 2019, she had control of Sarge while returning him to his enclosure within the pound after a visit by Ms Chaplin. Ms Brumby testified that, on that occasion, Sarge responded aggressively when challenged by a dog confined to a cage as she and Sarge passed by. A portion of video was played to the Tribunal showing the instance described.
- While it appears from the video that Sarge responded aggressively to the challenge of the other dog, I place little weight on this evidence because Ms Brumby only controlled Sarge on the one occasion, Sarge’s response was at the lower end of aggressive behaviour in all the circumstances, and it showed Sarge’s behaviour on one occasion only, whereas Sarge had been at the pound at that stage for almost 6 months.
- Ms Brumby noted in her testimony that there was no apparent reason why Ms Chaplin would not have received the original of the documents tendered as Exhibit 2 (dog registration renewal) and Exhibit 3 (the result of the annual audit of the premises at which Sarge resided).
Evidence for Kara Chaplin
- There is no doubt that Sarge is a dog who forms a part of a close family group and presents no especial threat to members of the family or other animals with which he is familiar.
- Ms Chaplin provided testimony to the Tribunal which demonstrated that Sarge is placid and docile among family members and animals with which he is familiar.
- In his Statement of issues and contentions Ms Chaplin’s counsel stated the Applicant’s case in the following terms (reference omitted):
- (a)It is accepted that Sarge poses a threat to the safety of other animals, that is, unfamiliar dogs. Sarge therefore poses a related threat of causing fear to other persons.
- (b)The threat posed by Sarge can be satisfactorily managed by full compliance with the mandatory conditions of dangerous dog ownership.
- (c)That despite Ms Chaplin’s history of non-compliance, she has evinced an intention by her words and conduct to fully comply with the mandatory conditions.
- (d)That Ms Chaplin is immediately able and willing to comply with all conditions of mandatory dangerous dog ownership, as well as all proposed training.
- Put briefly, Ms Chaplin does not deny that Sarge is a threat to other animals but, despite the history of the dog, she now intends to comply with the mandatory obligations imposed upon the owners of a RDD and, in this way, the risk posed by Sarge to others will be minimised.
- Mr David Busby, a veterinarian of 21 years’ experience gave evidence concerning his knowledge of Ms Chaplin and her dealings with animals. He has known Ms Chaplin as a client for eight years and clearly holds her in high regard.
- Mr Busby has not attended Sarge as a patient since Sarge was declared a RDD. Nonetheless, Mr Busby said that Ms Chaplin was one of his best clients because of her willingness to adhere to his advice and instructions, and that he has been impressed by Ms Chaplin’s devotion to animals, describing her as an exceptional animal owner. He expressed the view that Ms Chaplin would do anything to promote the welfare of her dogs.
- Mr David Haywood, a professional dog trainer and dog behaviour specialist, gave evidence concerning his experience with Sarge. At Ms Chaplin’s request Mr Haywood undertook an assessment of Sarge’s demeanour and behaviour through a series of tests involving interactions with other dogs. Officers from the Council also attended these tests. All the tests were performed while Sarge was muzzled. Mr Haywood prepared a report on Sarge that forms part of the evidence I have considered.
- Based on these tests, Mr Haywood expressed the view that Sarge was tractable and is capable of responding to dogs previously unknown to him without aggression. However, it was also clear from his evidence that the presence of the muzzle on Sarge during the tests was largely responsible for controlling his aggressive instinct. In his report Mr Haywood drew the following conclusion from his test:
… what it did do was highlight the fact that if he was appropriately muzzled, his drive to defend and protect property would be significantly reduced, thus reducing the perceived threat to the community. Of course, the onus of this falls on the shoulders of the relevant person to ensure that this is adhered to.
- It was also evident from Mr Haywood’s evidence that Sarge’s behaviour would be improved through a regime of training for at least four weeks, with follow-up training on a continuing basis.
- During his testimony Mr Haywood made three comments that are pertinent to the decision to be made here. First, that Sarge is becoming ‘kennel crazy’ because he has been in the pound for many months with limited stimulation, although he believed that this condition could be overcome.
- Second, he opined that Sarge is a fearful dog, not a confident dog, and Sarge is likely to default to aggression if he is exposed to unfamiliar circumstances, certainly if not muzzled.
- Third, Mr Haywood observed that because Sarge has attacked and killed on earlier occasions, this makes him more likely to offend.
- Mr Haywood expressed the view that Ms Chaplin and Mr Madigan have the ability to control Sarge and that the prognosis for the dog’s behaviour is good.
- Both Messrs Busby and Haywood expressed their professional view that they did not believe that there were grounds for the destruction of Sarge.
- A report on Sarge’s behaviour prepared by Rimini Quinn after assessing the dog was filed by Ms Chaplin. Ms Quinn is a veterinarian who specialises in animal behaviour.
- In her report Ms Quinn made a number of observations relevant to Sarge, in particular:
- (a)Sarge feels threatened and fearful towards unfamiliar dogs…;
- (b)Once an aggressive response is performed, it is more likely to occur in the future if faced with a similar situation;
- (c)I would recommend avoiding all and any exposure to unfamiliar dogs. This is likely to be a life-long recommendation, although with time and effort Counter Conditioning and Desensitisation techniques may allow gradually closer proximity to unfamiliar dogs;
- (d)Sarge is an adult dog; his behaviour can be slowly modified with consistent and dedicated effort however his temperament is set. Sarge is unlikely to ever be completely comfortable with unfamiliar dogs. Due to his size and strength, his ability to do harm if an incident occurs is very high.
- On each occasion when Sarge has been involved in injury to other animals Ms Chaplin has been sympathetic to the affected people and animals involved and paid the costs of veterinary treatment for injured dogs.
- Ms Chaplin has been a regular visitor to Sarge during his time confined to the pound, visiting him several times a week.
- Ms Chaplin stated that her premises have been audited by the Council because of Sarge, and she has not received any adverse comment or breach notice. She also made the following relevant comments and observations:
- (a)Sarge has never posed any threat or concern to the children at home or her other dog, Nala;
- (b)During the Council audits of the property she was not provided with any advice about her handling of Sarge;
- (c)She now has a clearer understanding of her obligations as the owner of a RDD;
- (d)She has made the house more secure by providing two self-closing and locking child-proof gates to confine Sarge when he is in the house, a padlock on the dog’s enclosure, and a gate to restrict access from the rear of the property to the side;
- (e)The training given to Sarge after the 2016 incident, although it was not completed, is evidence that she is willing to undertake whatever is needed to protect Sarge; and
- (f)She proposes to have Sarge attend behavioural courses conducted by Mr Haywood which she and Mr Madigan would both attend. The costs associated with this would be met by her parents;
- Ms Chaplin testified that the stress incurred by the three violent incidents involving Sarge has had adverse health repercussions on her, and that she has a special bond with Sarge that provides her with great comfort.
- In cross-examination Ms Chaplin made the following observations and comments:
- She previously had the understanding that Sarge was permitted to live largely as a normal dog while at the approved property, and that he had been confined to the laundry at night; and
- On the occasions when Sarge had not been confined and handled as a RDD previously it had been because Ms Chaplin had been in denial about the risks associated with Sarge.
- Mr Madigan, the partner of Ms Chaplin, gave testimony to the Tribunal. Mr Madigan confirmed the details described above concerning the second incident involving Sarge, in 2018. He also stated that he was willing to abide by the directions of Ms Chaplin in the handling of Sarge.
- Mrs Madonna Chaplin, the mother of the Applicant, gave testimony to the Tribunal. Mrs Chaplin opined that the Applicant has a kind nature and has spent a great deal of time caring for animals. She observed that the Applicant has an especially close bond with Sarge.
Applying the law and evidence
- Ms Chaplin has owned Sarge since he was about eight months old – he is now seven years old. There is a special bond between them.
- Whether by disposition or arising from his early experiences, Sarge is a fearful dog – he is not confident. One manifestation of this is his aggressive behaviour with unfamiliar dogs and in unfamiliar situations.
- In familiar surroundings Sarge is complaisant and docile. He presents no greater threat to the human and other members of his family than any other dog, at least while in his usual domicile.
- At the same time, there is no doubt that, outside the confines of his family and home, Sarge is an aggressive dog that causes fear to people who are near him. This can be controlled by the use of a muzzle. Without a muzzle Sarge must never be allowed outside his approved property.
- While each of the three incidents in which Sarge has acted aggressively could be said not to be the fault of the dog, this neither diminishes the seriousness of the incidents nor gives confidence that if Sarge was to be at large outside his approved property and not under adult control and fitted with a muzzle, that another violent incident would not occur. In fact, if Sarge escaped again, a fourth violent incident would be highly likely.
- In none of the three incidents involving him so far has Sarge acted in protection of his family or their property but, on each occasion, escaped from the property or adult control and attacked another dog with the evident intention of causing injury or death to that other dog. There can be no confidence that, once set upon a course of aggressive behaviour Sarge would not do the same thing again if the opportunity was presented, with the risk that, on a future occasion, it could involve other animals or a child.
- I am comfortably satisfied that Sarge engaged in three serious attacks and that he has the ability and willingness to attack again if the opportunity is presented. This possibility remains irrespective of any training or behavioural management that Sarge may be given.
- I was impressed by the evidence and conduct of Mr Michael Gilbert of the Council, who not only had to seize Sarge but issue the destruction notice. The audio recording of Mr Gilbert with Ms Chaplin and Sarge after the third incident, when Sarge was seized by Mr Gilbert, demonstrated his kindness, empathy, and sympathy with Ms Chaplin and the dog. Mr Gilbert would not lightly issue a destruction notice on a dog – indeed Sarge is only the second notice in his work for the Council over the course of five years. His decisions and actions should not be lightly overturned.
- The relevant test to be applied by this Tribunal in this instance is set out in the case of Bradshaw v Moreton Bay Regional Council:
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.
- On the evidence before me I am satisfied that Ms Chaplin understands the gravity of Sarge’s offending and that she has a strong desire to protect her dog.
- I am satisfied as to the earnest intent of Ms Chaplin to maintain her premises in such a condition that Sarge will, in the future, be properly contained. Similarly, Ms Chaplin has a genuine current intention to have Sarge trained in order to reduce the likelihood of an attack in the future.
- But, as the first and third of the attacks demonstrated, there are events outside the control of Ms Chaplin and Mr Madigan that could lead to Sarge being at large without adult control or muzzle. In the third instance, the dog escaped control as a result of actions by the household children done innocently and without malice or understanding of the consequences.
- There are two principal factors to consider when assessing risks generally: probability; and consequence.
- The fact that Ms Chaplin has taken steps, somewhat belatedly, to confine Sarge in accordance with the requirements of the AM Act may limit the probability that Sarge will escape in the future. But there remain many feasible scenarios in which Sarge could escape from his approved premises despite the best intentions or conduct of Ms Chaplin as demonstrated by the inadvertent actions of the children. If Sarge were to become at large again the evidence before the Tribunal leads me to conclude that there is a high probability of a further attack.
- The consequences of an attack by Sarge remain unchanged from what has happened on three earlier occasions: Sarge will attack with an intention to seriously injure or kill. If a dog being attacked by Sarge was under the control of a child or infirmed person there is a risk that such child or person also could be attacked. This is a different scenario to that where a wandering RDD has no obvious propensity to violence.
- Section 59(1) of the AM Act dealing with RDD provides as follows:
- (1)The purposes of this chapter are to—
- (a)protect the community from damage or injury, or risk of damage or injury, from particular types of dogs called ‘regulated dogs’; and
- (b)ensure the dogs are—
- (i)not a risk to community health or safety; and
- (ii)controlled and kept in a way consistent with community expectations and the rights of individuals.
- Assessing the risks, and being cognisant of the intention of the AM Act, I am satisfied that the threat posed can only be dealt with satisfactorily by the destruction of Sarge.
- The balance struck by the Council in its decision to have Sarge destroyed is appropriate. It is a correct decision, and it is the preferable decision.
- The decision of Sunshine Coast Regional Council to destroy Sarge is confirmed.
 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(2).
 Ibid s 19.
 Ibid s 20(1).
 Ibid s 24.
 AM Act, s 3(d).
 Ibid s 89(1).
 Ibid s 89(2)(a).
 Ibid s 89(2)(b).
 Ibid s 89(7); Schedule 2, Dictionary.
 Ibid s 104.
 Ibid Chapter 4.
 Nguyen v Gold Coast City Council Animal Management  QCATA 121, .
 AM Act, s 3
 Ibid s 59(1)
 Ibid ss 4, 59(2).
 Lee v Brisbane City Council (No 2)  QCATA 64.
 Bradshaw v Moreton Bay Regional Council  QCATA 139.
 Briginshaw v Briginshaw (1938) 60 CLR 336.
 As an owner is required to do: Animal Management (Cats and Dogs) Act 2008, Sch 1, s 4.
 Statement of issues and contentions – the applicant, dated 17 November 2019.
 Report: ‘Re: “Sarge” Chaplin (7 Year Old American Staffordshire X) dated 9 May 2019, by The Canine Classroom.
 Ibid (no page or paragraphs numbered in the original).
 Veterinary Behaviour Assessment for Sarge Chaplin by Rimini Quinn, dated 26 April 2019.
 Ibid (no page or paragraphs numbered in the original.)
 Bradshaw v Moreton Bay Regional Council  QCATA 139; also Thomas v Ipswich City Council  QCATA 97.
 Such as in Balens v Moreton Bay Regional Council  QCAT 297
- Published Case Name:
Chaplin v Sunshine Coast Regional Council
- Shortened Case Name:
Chaplin v Sunshine Coast Regional Council
 QCAT 371
29 Nov 2019