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  4. Wilson v Brisbane City Council - [2020] QCAT 407

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Wilson v Brisbane City Council[2020] QCAT 407

Wilson v Brisbane City Council[2020] QCAT 407

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Wilson v Brisbane City Council [2020] QCAT 407

PARTIES:

Nathan wilson

(applicant)

v

brisbane city council

(respondent)

APPLICATION NO/S:

GAR043-20

MATTER TYPE:

General administrative review matters

DELIVERED ON:

14 October 2020

HEARING DATE:

7 October 2020

HEARD AT:

Brisbane

DECISION OF:

Member Fitzpatrick

ORDERS:

The Menacing Dog Declaration made in respect of the dog ‘Bob’ on 8 October 2019 is confirmed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where a dog attacked another dog – where the respondent Council made a declaration that the dog was a menacing dog – where the owner sought a review in the Tribunal – where the attack was recorded on CCTV – where the legislation required a declaration that the dog was a menacing dog

Animal Management (Cats and Dogs) Act 2008 (Qld), s 59, s 89, s 94

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

Lee v Brisbane City Council (No2) [2012] QCATA 64

APPEARANCES &

REPRESENTATION:

Applicant:

Self-represented

Respondent:

J Thong, Solicitor, City Legal instructed by M Spencer, City Legal.

REASONS FOR DECISION

  1. [1]
    The applicant Mr Wilson is the owner of Bob, an American Staffordshire Terrier. Mr Wilson has sought an external review in this Tribunal of a decision of the respondent Brisbane City Council made on 6 February 2020 confirming the Council’s original decision of 8 October 2019 that Bob be declared a menacing dog.[1]
  2. [2]
    The purpose of the review in the Tribunal is to produce the correct and preferable decision by way of a fresh hearing on the merits. The Tribunal has all the functions of the decision-maker for the reviewable decision being reviewed.[2]
  3. [3]
    The background to this matter is:
    1. (a)
      On 15 August 2019 Ms Maria Somoray complained to the Council that around 5pm on 14 August 2019, whilst she and her son Karl were walking JayJay, their King Charles Cavalier dog, Bob ran from Mr Wilson’s home in Thompson Street, Zillmere and attacked JayJay. Karl was bitten on the hand during the affray. Neither Karl nor JayJay sustained serious injury, although JayJay had some bruising to the neck.
    2. (b)
      The incident was captured on CCTV. That video forms part of the evidence in the matter.
    3. (c)
      The incident was investigated by the respondent’s officers and a proposed Declaration Notice – Menacing Dog was forwarded to Mr Wilson.
    4. (d)
      Mr Wilson responded denying that Bob had acted in a menacing way.
    5. (e)
      The respondent issued a Notice of Regulated Dog Declaration – Menacing Dog effective 29 October 2019.
    6. (f)
      A review was sought by Mr Wilson who made submissions to the respondent.
    7. (g)
      On 6 February 2020, Mr Millard, Acting Business Manager, Safety, Amenity and Litter Team conducted an internal review of the original decision and found the decision was lawful and correct. He was satisfied on the balance of probabilities that Bob attacked JayJay in an unprovoked way. The attack resulted in Karl Somoray and JayJay sustaining injuries and experiencing fear. He concluded that the requirements of s 89(3) of the Animal Management (Cats and Dogs) Act 2008 (Qld) (Animal Management Act) were satisfied.

Evidence – Mr Wilson

  1. [4]
    Mr Wilson relied upon the application for review and attached documents to which I have referred.[3]
  2. [5]
    Mr Wilson made the following points in giving his evidence:
    1. (a)
      The respondent did not take into account the references he provided confirming Bob’s good nature and good behaviour.
    2. (b)
      He has no confidence that the right decision has been made because of the way in which the Council has conducted the matter.
    3. (c)
      Karl Somoray confirmed to him that his own dog bit him.
    4. (d)
      No dog behaviouralist has considered the incident and concluded that Bob is a menacing dog.
    5. (e)
      The video of the incident does not reveal an attack, rather Bob was engaging in rough play appropriate to a puppy of Bob’s breed. The dogs can be observed to be wagging their tails once separated. It is not possible to say from the CCTV footage if the dogs were barking or growling.
    6. (f)
      Bob is Mr Wilson’s companion and he is very emotionally attached to him.
    7. (g)
      Mr Wilson does not want his dog to be caged or to be unable to play with other dogs at the dog park or to run off leash at the beach.
  3. [6]
    In cross-examination Mr Wilson agreed that he is not a dog behaviour expert. He acknowledged that Karl and Maria Somoray may have been scared by Bob’s behaviour.
  4. [7]
    Mr Wilson maintained that JayJay was not attempting to get away, but that it was JayJay who was on Bob’s head.
  5. [8]
    The CCTV footage was played during cross-examination, and Mr Wilson confirmed that he was not present for all of the incident but arrived at the end when the dogs were being separated. He identified himself and Bob in the video.

Evidence – Brisbane City Council

  1. [9]
    The respondent Council relied upon the material filed by it in the proceeding, to which I have referred.[4]
  2. [10]
    Mr Somoray and Ms Somoray were called to give evidence in accordance with their affidavits describing the incident. Mr Somoray agreed in cross examination that he could not say if the bite on his hand was as a result of being bitten by Bob or JayJay.
  3. [11]
    In his affidavit Mr Somoray described his observation of Bob running aggressively at JayJay, eventually getting him by the neck and shaking him. Mr Somoray said that he was frightened that Bob would injure JayJay and was also frightened for himself.
  4. [12]
    Ms Somoray’s affidavit describes her observation of Bob running at JayJay, trying to get a hold of JayJay. Ms Somoray screamed for help. She confirmed that JayJay was taken to the vet who noted bruising around where he had been attacked. Ms Somoray confirmed that her son and JayJay were extremely frightened by being rushed by a large dog and that she was frightened for the safety of her son, grandchildren and JayJay.
  5. [13]
    The respondent did not call the Council officers involved in the investigation or making of the Declaration. Nor was the internal reviewer Mr Millard called. Mr Wilson made no objection.
  6. [14]
    I note that in the affidavit of Mr Singh he confirms reviewing the materials supplied by Mr Wilson in response to the Proposed Declaration.[5]
  7. [15]
    In order to understand if Mr Wilson was correct in his assertion that the Declaration would mean Bob would be caged I asked the respondent if any relevant officer could give evidence as to the scope and meaning of the conditions for keeping a declared menacing dog.
  8. [16]
    Mr Mark Scott, Animal Services Delivery Co-ordinator for the Council, gave telephone evidence that:
    1. (a)
      muzzling is not required;
    2. (b)
      a menacing dog is not required to be de-sexed;
    3. (c)
      an enclosure for keeping the dog is not a cage. An enclosure must have specified height walls and an appropriate gate and shelter for the dog. Effectively an appropriately fenced yard could be an enclosure;
    4. (d)
      a menacing dog is allowed in a house provided it is under the effective control of its owner. That is, the dog owner ensures the dog cannot escape;
    5. (e)
      the Council will work with an owner to ensure compliance with the conditions of the Declaration, in reasonable time frames.

Findings

  1. [17]
    Upon viewing the CCTV footage[6] I find that Bob ran at JayJay and was involved in an attack on JayJay. Without expert evidence it is not possible to say if Bob was engaging in rough play. However, rough play may still constitute an attack.
  2. [18]
    I consider that running directly at the smaller dog JayJay and grabbing it by the neck and shaking it amounts to an attack.[7]
  3. [19]
    I accept the evidence of Mr Somoray and his mother Ms Somoray as to their description of the attack which accords with what I saw on the CCTV video. I also accept their evidence that they were frightened by Bob’s behaviour and that their dog JayJay was frightened by the attack.
  4. [20]
    I note Mr Somoray’s evidence that he could not say which dog bit him. I do not find that Bob bit Mr Somoray.
  5. [21]
    I accept Mr Wilson’s evidence that Bob is a friendly and well-behaved dog and accept that is the experience of those who gave references on his behalf. However, that does not change what happened during the incident on 14 October 2019. Because I have found that an attack occurred on that day, even if it is an isolated incident, that attack will determine whether Bob should be declared a menacing dog. Evidence of Bob’s usual behaviour is of limited relevance to what occurred during the incident in question.
  6. [22]
    Given the CCTV footage and the Somorays’ evidence, I do not accept Mr Wilson’s evidence that the incident was not an attack. I note that Mr Wilson was not at the scene for most of the incident.
  7. [23]
    I accept the affidavit evidence of the Council Officers and find that the process set out in the Animal Management Act for making a Declaration that a dog is a menacing dog has been complied with.[8] I reject Mr Wilson’s submission that Mr Singh did not take into account the submissions made by him or his references. It is apparent from Mr Singh’s affidavit that he did refer to the material, but he accepted the results of the investigation as to what had occurred.

The Law

  1. [24]
    By section 89(3) of the Animal Management Act a menacing dog declaration may be made for a dog if, relevantly, a dog has attacked or acted in a way that caused fear to a person or another animal.
  2. [25]
    By section 94(1) of the Animal Management Act the local government must consider any written representations and evidence accompanying them within the period stated in the proposed declaration notice. By section 94(2) of the Act, 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.
  3. [26]
    The respondent submitted that if I am satisfied that an attack occurred, then I must make a Declaration. It is submitted that there is no discretion given to the decision maker in this regard. I accept that submission because the word “must” is used in section 94(2) of the Animal Management Act. That interpretation is also consistent with the purpose of Chapter 4 of the Act relating to regulated dogs, set out in section 59:
  1. (1)
    The purposes of this chapter are to –
    1. protect the community from damage or injury, or risk of damage or injury, from particular types of dogs called ‘regulated dogs’; and
    2. ensure the dogs are –
  1. not a risk to community health or safety; and
  2. controlled and kept in a way consistent with community expectations and the rights of individuals.
  1. [27]
    On the basis of my findings that Bob attacked JayJay on 14 October 2019 and that Mr and Ms Somoray were frightened by the attack, I am satisfied that circumstances exist where a menacing dog declaration may be made. I do not accept Mr Wilson’s submission that the incident was not an attack and that both dogs were happy in the encounter. I have otherwise considered Mr Wilson’s evidence, however it does not go to the incident itself which is the relevant information for the purpose of the review I am conducting.
  2. [28]
    Having found that Bob was involved in an attack and that fear was caused to the Somorays, I must confirm the decision to declare Bob a menacing dog.
  3. [29]
    The outcome of this review is that the decision to declare Bob a menacing dog is confirmed. As a result, the stay of the decision made in this Tribunal on 17 February 2020 is lifted.

Footnotes

[1] Section 188 Animal Management (Cats and Dogs) Act 2008 (Qld).

[2] Sections 19 and 20 Queensland Civil and Administrative Tribunal Act 2009 (Qld).

[3] Exhibits 9, 10, 11, 12 and 13.

[4] Exhibits 1, 2, 3, 4, 5, 6, 7 and 8.

[5] Affidavit of Lakhwinder Singh affirmed 27 February 2020, paras 10 and 11 (Exhibit 5).

[6] Affidavit of Maria Somoray attachment MS02 (Exhibit 3).

[7] Lee v Brisbane City Council (No2) [2012] QCATA 64, [24], [25].

[8] Affidavit of Brett Tatters affirmed 2 March 2020 (Exhibit 4); Affidavit of Lakhwinder Singh affirmed 27 February 2020 (Exhibit 5).

Close

Editorial Notes

  • Published Case Name:

    Wilson v Brisbane City Council

  • Shortened Case Name:

    Wilson v Brisbane City Council

  • MNC:

    [2020] QCAT 407

  • Court:

    QCAT

  • Judge(s):

    Member Fitzpatrick

  • Date:

    14 Oct 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Lee v Brisbane City Council (No 2) [2012] QCATA 64
2 citations
Jump To
Cite 1 - [2012] QCATA 64
Cite 2 - [2012] QCATA 64

Cases Citing

No judgments on Queensland Judgments cite this judgment.

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