Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Gulley v Rockhampton Regional Council[2021] QCAT 302

Gulley v Rockhampton Regional Council[2021] QCAT 302

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Gulley v Rockhampton Regional Council [2021] QCAT 302

PARTIES:

aaron jay gulley

 

(applicant)

 

V

 

rockhampton regional council

 

(respondent)

APPLICATION NO/S:

GAR396-20

MATTER TYPE:

General administrative review matters

DELIVERED ON:

8 September 2021

HEARING DATE:

3 June 2021

HEARD AT:

Rockhampton

DECISION OF:

Member Allen

ORDERS:

  1. The decision of the Rockhampton Council is amended by confirming the destruction order of 20 October 2020; and
  2. Staying the destruction order for a period of 21 days from the date of this order to allow Mr Gulley to make application for the transfer of Moo Moo to another person subject to the requirements of the Animal Management (Cats and Dogs) Act 2006

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where dog declared a menacing dog – where history of non-compliance by owner – dog not kept in enclosure – escaping from yard and attacking passers-by – where dog found with dead chickens – brought into Council – dog seized by Council – destruction order issued – whether dog dangerous and unable to be controlled by order.

Animal Management (Cats and Dogs) Act 2006 (Qld), s 3, s 59, s 89, s 125, s 127

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 21, s 24

Gligoric v Council of the City of the Gold Coast [2020] QCAT 320

Nguyen v Gold Coast City Council Animal Management [2017] QCATA 121

APPEARANCES & REPRESENTATION:

 

Applicant:

Mr Aaron Gulley

Respondent:

Mr Clint Swadling appeared for the Rockhampton Regional Council

REASONS FOR DECISION

Introduction

  1. [1]
    Mr Gulley is the owner of Moo Moo, a male Border Collie. Moo Moo was found in a chicken coop with several dead chicks and taken to the Council’s Animal Management Centre. The Council determined to exercise its powers to seize Moo Moo.[1] The Council then issued a destruction order in respect of Moo Moo, as he was a seized regulated dog.[2] This order gave Mr Gulley 14 days to seek internal review[3] of the decision. He did so and the decision was confirmed on 20 October 2020. He then had a right to make application to the Tribunal for an external review of the decision.

The legislation

  1. [2]
    The Tribunal’s review of the decision is by way of a fresh hearing on the merits.[4] The Tribunal must hear and determine the matter in accordance with the legislation under which the decision was made and the QCAT Act and has the same functions as the decision maker.[5] The Tribunal must make the correct and preferrable decision[6] and the role of the decision-maker is to assist the tribunal in making that decision including by providing a statement of reasons for the decision and all the material which it considers is relevant to the review of the decision.[7] The Tribunal may confirm or amend the decision, set it aside and substitute its own decision or set it aside and return it to the decision maker with directions.[8]
  2. [3]
    The power to make a destruction order under s 127 of the AM Act is subject to the proviso that an authorised person has under section 125 of the AM Act or a warrant, seized the dog.[9] An authorised person[10] may enter a place if an occupier of the place consents to the entry, or it is a public place and the entry is made when it is open to the public, or the entry is authorised by a warrant.[11] A public place is defined in Schedule 2 of the AM Act as any place that the public is entitled to use, is open to the public, or used by the public, whether or not on payment of money. An authorised person who has entered a place may search any of the places they are authorised to if entry is by way of occupier’s consent or warrant.[12] There are also powers to inspect, test, copy a document, take samples, to take other persons or equipment into or onto the place, or to require the occupier or another person to give the authorised person help to exercise their powers.[13] If an authorised person has entered a place and the person reasonably suspects a dog mentioned in the part is at the place, the person may seize the dog if the person reasonably believes the dog has attacked or acted in a way that causes fear to, a person or another animal; or is, or may be, a risk to community health or safety.’ If the dog is a regulated dog a compliance notice has been given in relation to the dog and the person reasonably believes the notice has not been complied with. Also, if the place is a public place, the person may seize the dog if it is not under anyone’s effective control. An owner of a regulated dog may also surrender it to the relevant local government after which the dog becomes the local government’s property and the dog must then be destroyed as soon as practicable.[14]
  3. [4]
    The making of a destruction order requires that the dog in question be a regulated dog. A dangerous dog declaration may be made for a dog only 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.[15] A menacing dog declaration may be made for a dog where a ground mentioned in respect of a dangerous dogs exist except the attack was not serious.[16] Where a dog is subject to a declaration there are requirements to be met in respect of how the dog is to be identified with an implant and a tag, muzzling and effective control in public, enclosure in which the dog is to be kept, public notice to be placed at entrances and notice of change of address.[17] If a dog is a declared dangerous dog, it must also be desexed.[18] The owner of a regulated dog must ensure that each permit condition imposed in relation to the dog is complied with.[19]
  4. [5]
    When exercising power under the AM Act the Tribunal is required to do so in accordance with the purpose of the Act. The purposes of the Act are to provide for the identification of cats and dogs, provide for the registration of dogs, provide for the effective management of regulated dogs and promote responsible ownership of cats and dogs and promote the responsible breeding of dogs.[20] Those purposes are to be primarily achieved by imposing obligations about identification devices for cats and dogs, imposing obligations on owners and veterinary surgeons about desexing, imposing obligations on dog breeders, imposing registration obligations on dog owners, imposing obligations of regulated dog owners, imposing obligations on particular persons to ensure dogs do not attack or cause fear and prohibit anyone from allowing or encouraging a dog to attack or cause fear to people or other animals.
  5. [6]
    The purpose of the provisions in relation to Regulated dogs is set out in s 59(1) of the AM Act is to protect the community from damage or injury, or risk of damage or injury, from regulated dogs; and ensure the dogs are not a risk to community health or safety; and controlled and kept in a way consistent with community expectations and the rights of individuals. The purposes are to be achieved by providing for local governments to declare dogs to be dangerous dogs, menacing dogs or restricted dogs; provide for the compulsory desexing of declared dangerous dogs and restricted dogs; provide for the identification of dogs as regulated dogs; imposing conditions on keeping, and requirements for the control of, regulated dogs; allowing authorised persons to seize or destroy dogs in particular circumstances.[21]
  6. [7]
    Mr Gulley and the Council have made submissions taking into account previous Tribunal decisions as to how s 127 of the AM Act should be applied. Mr Gulley relies on the decision in Gligoric v Council of the City of Gold Coast,[22] stating “QCAT set aside the destruction order .. in doing so the member formed the view that Council had not shown the dog was dangerous and could not be controlled. The member observed that that s 3 of the AM Act sets out the purpose of the Act, including that it provides for the effective management of regulated dogs. Destruction of a dog is a last resort where the mechanisms in the Act for management fail or are ineffective, as stated in Thomas v Ipswich City Council. The Council relied on the decision of the Appeals Tribunal in Nguyen V Gold Coast City Council Animal Management.[23] The Senior Member in that case states “the Appeal Tribunal in Thomas in referring to the destruction of a dog as a ‘last resort’ was, in my view, reflecting upon what s 127 makes clear. An order for a destruction of a dog will be made in circumstances where a dog is dangerous and cannot be controlled. It is correct to say that s 127 does not identify any criteria for the exercise of the discretion to order the destruction of a dog.”[24]
  7. [8]
    The Senior Member in Nguyen stated that “section 127 of the AM Act applies to regulated dogs. A regulated dog is a dangerous dog, a menacing dog or a restricted dog. If a dog is reasonably believed to be dangerous by an authorised person and the person cannot control the dog, it may be destroyed upon the elapse of time after service upon the dog’s owner of a destruction order and subject to any successful review of the decision to destroy the dog. In circumstances where a dangerous dog declaration has been made, a decision maker will need to consider whether the dog can be controlled. Whether a dog can be controlled will be a matter of fact and degree in every case.[25] He then stated “I would pose the question posited by the Appeals Tribunal in Thomas slightly differently: the essential question is whether the dog can be controlled taking into consideration the threat or likely threat, to the safety of other animals or to people by attacking them or causing fear, posed by the dog.[26] Determining whether a dog can be controlled will require a consideration by a decision maker of a range of matters which might include:
    1. (a)
      The relevant history of the behaviour of the dog giving rise to consideration of the making of the destruction order;
    2. (b)
      Any other relevant history of the behaviour of the dog including the circumstances giving rise to the declaration that the dog is a regulated dog;
    3. (c)
      The current behaviour of the dog including whether the behaviour has been, and/or could be, modified through appropriate training;
    4. (d)
      The arrangements for the dog at its place of residence including the security of any enclosure and whether any interaction by the dog with persons, including household members and other persons entering upon the property poses a threat of harm to such persons;
    5. (e)
      The risk the dog poses to community health or safety including the risk of harm to people and other animals outside the place of residence of the dog;
    6. (f)
      Compliance by the owner of the dog with any permit conditions imposed as a result of the dog being declared a regulated dog;
    7. (g)
      Whether the owner of the dog demonstrates insight into, and understanding of, the dog’s behaviour and has acted appropriately to mitigate any risk posed by the dog to people or animals;
    8. (h)
      The rights of individuals, including the owner of the dog. While noting the protection of the community is clearly given a higher priority than individual rights of dog owners.[27]
  8. [9]
    I consider that Nguyen sets out a useful set of criteria within which to determine the relevant questions that is:
    1. (a)
      Is the dog dangerous; and
    2. (b)
      Can it be controlled.

How MOO MOO was seized

  1. [10]
    There is a preliminary question as to whether section 127 was enlivened having regard to the way Moo Moo came to be in the possession of Council and whether this constituted seizure for the purposes of s 125 of the AM Act. In this case Moo Moo was brought to the Animal Management Centre by Mr Ricardo and was handed over in the foyer to Mr Riccardo to a member of the Animal Management team. Mr Gulley characterises what happened as Moo Moo being surrendered to the Council by Mr Riccardo which does not constitute seizure for the purposes of the AM Act and refers to some of the Council documents.[28] The Council contends that the foyer of the Animal Management Centre is a public place and when they took Moo Moo from Mr Riccardo that constituted a seizure by them of the dog.
  2. [11]
    The Council provided a copy of the document provided to Mr Riccardo when he brought Moo Moo to the Animal Management Centre.[29] It clearly states the dog Moo Moo was a stray and was seized under s 125 of the AM Act. It was also noted on the form that there had been a dog attack on chickens. I am satisfied that the foyer of the Animal Management Centre is a public place and that the officers of the Council exercised their powers to seize Moo Moo.

Is Moo Moo a dangerous dog

  1. [12]
    There is a long history of attacks which Moo Moo has been either proven or alleged to have been involved in:
    1. (a)
      The first notification to Council was on 12 September 2014 with 10 notifications of Moo Moo attacking or wandering from its property up to 21 April 2017.
    2. (b)
      On 21 April 2017 Moo Moo attacked another animal causing minor injury in the form of abrasions, whilst in a public place being the roadway of Herbert Street. Moo Moo also attacked a person causing fear by biting the person and grabbing hold of the persons shoe at the time of the attack on the dog. Mr Gulley was issued with a proposed menacing dog declaration on 29 June 2017 and there were no representations received. A menacing dog declaration was then issued against Moo Moo on 2 August 2017. Mr Gulley claims that the Council did not give him a proper opportunity to make representations having regard to his personal circumstances. I note that once the menacing dog declaration was made Mr Gulley complied with its requirements.
    3. (c)
      On 21 June 2017 Moo Moo was alleged to have attacked a person doing a letter box drop. The victim did not provide a statement. Mr Gulley advised Council Moo Moo may have been involved. There was a regulated dog compliance inspection on 28 August 2017 and a compliance notice was issued.
    4. (d)
      On 18 November 2017 Moo Moo and another dog exited 36 Herbert Street through an open gate and attacked a person and their dog who were jogging past. Mr Gulley is said to have admitted that the dogs had run across the road but stated that his CCTV shows that the dogs did not bite the customer. He advised that the gates were left open by his mother and the remotes did not work though they did work when they were tested by Council officers. Moo Moo was seized under s 125 of the AM Act and further infringements were issued. The dog was released once the enclosure was compliant.
    5. (e)
      On 22 November 2017 Moo Moo and another dog were reported as attacking 3 people. The Council seized the dog under s 125 of the AM Act a further infringement notice was issued and the dog was released once the enclosure was compliant.
    6. (f)
      On 17 February 2019 Moo Moo is alleged to have bitten Ms Christine Ivers on the ankle as she turned onto Herbert Street after walking up Knutsford Street. She is said to have described the dog as dark brown maybe black and white with long/fluffy fur. Mrs Ivers thought the property was number 6 but Council officer, Ethan Harbinson determined that the property based on her description was number 36 and that the dog Moo Moo registered to that property matched the description given by Mrs Ivers. Mrs Iver’s stated that after she had shaken off the dog it had returned to the driveway of 36 Herbert St and while she could not be sure if it lived there it seemed very protective of that area and wasn’t going to let her past. When she had driven by the house later in the day she had noticed warning signs on the fence for a menacing dog. Mrs Iver’s described her injury as a puncture wound, bruising and swelling on the outside and front of her lower leg. She stated that while it was not a serious injury she was concerned that if the dog was to attack a child or another dog the outcome could potentially be very different. She said the dog gave no warning signs and ran straight at her when it saw her so she had no opportunity to get away before it attacked. I note that, Council Officer Haughton who was involved in Moo Moo’s daily care when he was impounded in 2017 described Moo Moo as a black and white Border Collie who is smaller than a normal Border Collie and has a round black dot on his head. Mrs Ivers in her oral evidence described the dog that attacked her as a border collie, dark set white patches with a longish coat she could not describe the dogs size. When asked where the dog went she stated “down the driveway of 36 Herbert Street, solid fence cream colour.
    7. (g)
      On 18 February 2019 Council officers with police attended at 36 Herbert Street to investigate the attack and seize the attacking dog if it was identified. A dog matching Mrs Ivers description black and white, smaller Border Collie believed to be the dog Moo Moo ran from the rear of the property and barked at their presence. Mr Gulley was not home that day and when contacted by phone stated that Moo Moo could not have attacked anyone on 17 February as he was not on the property. Mr Gulley claimed that the dog involved was a black/white Kelpie from around the corner but would not provide any further information. The Council officer stated that he would be seizing Moo Moo for the duration of the investigation  until it can be proven which animal was the attacker. Mr Gulley refused and told the Council officers to leave the property. Mr Gulley was advised that he was in breach of the keeping conditions for a regulated dog as Moo Moo was not inside the regulated dog enclosure. Mr Gulley is said to have claimed that he beat Council in Court and the regulation was removed and Council was supposed to take the signs away.
    8. (h)
      On 28 February 2019 Council received a phone call from Glenn Hansenn about a dog attack involving a dog from 39 Herbert Street and he was interviewed on 1 March 2019. Mr Hansen stated that he was walking on Herbert St. at 8:05pm on 28 February 2019. He thought the gate at 39 Herbert Street was open. He described the house including that there was a yellow menacing dog sign on the left of the gate opening. He noted that in the past week or ten days a friend had been walking along this area and was bitten by a dog with a significant bite wound to her lower leg. He said that two dogs from that address had attacked him and his wife well over two years ago. The dogs attacked his wife and his dog with his child in a pram and with injuries sustained to the dog  but this was not reported at the time. As he walked past Mr Hansenn heard two dogs bark inside the house with the gate open. Due to his knowledge of the dog within the house he started to back away facing the open gate. He saw two dogs come to the gate, one of them a white/black/grey (in the light it looked this way) scruffy coat, that of a terrier almost came running out, with teeth bared and came straight at him and tried to get at the pram he was wheeling. Mr Hansenn tried to back away and at that point he picked up the sawn off hockey stick he carries to ward off such dogs whilst walking at night and went back to the dog to try to scare it away. He states that the dog had its teeth bared and was looking for an opportunity to try to come closer and bite him or his son. He kept advancing at the dog and that went on for 30 seconds. He yelled at the dog repeatedly trying to attract attention of the occupants of the house it had come from. He then heard someone call out, the dog went inside. He said that he waited for five minutes about 50 metres up the road, he went back and took a photo of the gate ajar and no one came to shut the gate.
    9. (i)
      Based on Mr Hansenn’s statement Council Officer, Ethan Harbinson, identified the address as 36 Herbert Street and the dog as Moo Moo. Officers of the Council attended at 36 Herbert Street on 1 March 2019 with a warrant in relation to the attack on Mr Hansenn, the previous attack on 18 February 2019 and the earlier attacks in November 2018 and the non-compliance with the keeping conditions for a regulated dog as a result of the attacks. Mr Gulley was asked if he would accompany the Council Officers while they searched and he said he had things to do. The property was searched without finding Moo Moo. Mr Gulley advised the Council Officers that “we could go get him if we wanted him as he was in the boat, in the creek eaten by a croc four days ago.” He further said “we were in the boat.. four days ago and he got knocked off the side... we couldn’t get him out and something got him.”
    10. (j)
      Mrs Christine Ivers made a further complaint to Council that at 6:05pm on 14 August 2019 she had been walking her dog on a lead up Herbert Street on the left side of the road. She noted that she had been attacked by a loose dog in the area earlier in the year and so made a habit to check that the gate at 36 Herbert Street is closed before she walks past the house. She stated that it appeared closed on that occasion however as she walked past on the opposite side of the road, she heard dogs barking and then two dogs have pushed the gate of number 36 open enough to run out of the driveway. One of the dogs was a medium, black and white border collie. The border collie type dog approached with teeth bared and growling and immediately attacked, Georgie, the labradoodle pup she was walking. Mrs Ivers pushed her dog behind her, but the other dog ran behind her and jumped on Georgie and bit it, the dog was not seriously injured as it had a thick coat. She kicked at the dog and got it free and went around the corner and the attacking dog did not follow her. She noted that she was lucky that on this occasion the attacking dog had concentrated on her dog and did not turn on her as well. She was concerned that no one approached her to offer any assistance despite the commotion and the noise of the dogs and herself shouting. She noted that “the attacking dog ran straight at us as soon as it saw us, so she had no opportunity to get away before it attacked”. She said that “she drove past the house later and it appeared that the owners had subsequently arrived home as there were lights on in the house and the gate was completely shut”.
    11. (k)
      On 16 August 2019 Council Officers attended 36 Herbert Street regarding the alleged attack causing fear to a person carried out by a dog coming from 36 Herbert Street matching the description of Moo Moo. Mr Gulley was not at the property and the Council Officers spoke to someone known as Toby. While they were doing so one of them noted a dog sitting about 2 metres inside the gate which he identified as Moo Moo as he could see that it was a smaller than normal Border Collie and had the black dot on his head. Toby confirmed that the dog was Moo Moo when he was asked to identify him. Toby advised that the dog and another named Soxy had only been at the property for two days as Mr Gulley kept them “somewhere else”. Toby advised that he was unsure as to whether one of the dogs belonged to Mr Gulley’s girlfriend as she seems “to take him a lot” motioning with his hand again to Moo Moo. Toby allowed photos to be taken of the dogs on the property with one of them being of a black and white border collie type. Toby was asked if he knew if the dogs were microchipped, he advised he was not sure but doubted the dogs would let us scan them as they were ‘a bit vicious’. Toby was asked to scan the dogs and he agreed. When the number on the microchip scanner was checked against the database it corresponded to Moo Moo. Mr Gulley obtained a statutory declaration from Tobias Egmond who stated that at no time had he ever assisted council to scan the dog Moo Moo.  The Council was contacted, and clearance was granted to seize the dog. They returned to the property and advised Toby they intended to seize the dog. He Advised that he could not allow this until Mr Gulley returned home as he had been given instructions to not allow anybody through the gate. A council Officer, Michael Haughton in oral evidence confirmed that he had asked Toby to use the scanner as the dog was vicious and once the reading was taken the dog was identified as Moo Moo.
    12. (l)
      Council Officers with two QPS officers attended at 36 Herbert Street on 20 August 2019 to execute a warrant to seize the dog Moo Moo for not being kept according to regulated dog permit conditions. Mr Gulley met them at the gate and a Council Officer enquired about Moo Moo, to which Mr Gulley responded that he considered this harassment. Mr Gulley stated that if they were “looking for the dog that was here the other day” it belonged to a lady around the corner. When a Council Officer enquired about whether Moo Moo was back at the property Mr Gulley replied, “he’s dead mate.” Mr Gulley granted entry to the property and it was searched. When searching the dwelling at the front of the property an unnamed resident is said to have stated “Now I know the dog you are talking about it was the savage thing here the other day hey. It’s fucking like rarely ever here but yeah it tried to bite me that fucking thing”. The resident was asked “Moo Moo?” and replied, “so yeah it ain’t here now.” A Council Officer had a conversation with Mr Gulley and he again stated “that he knew the dog we were looking for as he had taken it back to its owner two days ago and that Toby was mistaken about the dog sighted by the officers being Moo Moo”.
    13. (m)
      On 22 August 2020 Mr Michael Riccardo attended the Animal Management Centre to surrender a dog he had caught in his guinea-pig hutch earlier that morning after it had killed his daughter’s 6 chickens in the yard. Council records show that it was unable to be determined if the injuries are consistent with a dog bite so the cause of death of the chickens is unknown. The Council Officer who dealt with the incident had had previous interactions and recognised the dog as Moo Moo and he confirmed this using microchip detection. He called Mr Gulley and advised that Moo Moo had been impounded for a dog attack on another animal. Mr Gulley advised that Moo Moo had been lost for almost 12 months after being lost from the boat in a creek. Mr Gulley stated “I honestly thought we lost him on the boat. He jumped off the river.. and on the riverbank. We couldn’t find him, we spent three hours looking for him. I couldn’t find him. he just went chasing a fucking Kangaroo or some fucking thing. On a visit to Moo Moo on 24 August 2020 Mr Gulley advised that to, his recollection, Moo Moo went missing on or around 28 November last year (2019), on a Friday or Saturday night. Mr Gulley in his submissions to the Tribunal confirmed that Moo Moo had gone missing in November-December 2019 in accordance with a statutory declaration from Edward Simpson who had accompanied Mr Gulley on the boat trip.
    14. (n)
      Ms Georgia Riccardo in her statement about the incident on 22 August 2020 said that she was woken at 5:30am by the noise of metal banging and chickens squawking, and that she went out and saw one dog scrounging around, near the back steps and it bolted towards the driveway and then over the fence. She described the dog as a bit smaller than a Labrador, black with a dark collar. She went to check the chicks and the dog was in there with them and it was the dog that was taken to the Council. When she went into the room, the dog let out a growl, but after that was not showing any aggression. She did not feel fearful of the dog. She stated that the dog did not eat any of the chickens but all six of the three to six week old chickens were deceased. Her father had opened the door to the chicken coop and used a rope to get the dog out by gently tugging on it and the dog did not growl. Mr Michael Riccardo signed a statutory declaration asking for a stay on the dog that killed his chooks and that he has spoken to the owner and will support him on his request to get the dog back.
    15. (o)
      After Moo Moo was impounded by the Council Mr Gulley was advised that the dog required dental work and told that if he wanted to book an appointment the Council would transport the dog to the appointment. Mr Gulley said he believed dogs grew new teeth like sharks and had never had Moo Moo’s teeth checked.  Mr Gulley indicated that he would prefer to wait to see if he was getting the dog back first. The Council records show that the dog had no other health concerns.
    16. (p)
      Mr Gulley advised the council on 1 October 2020 that he had two dogs who allegedly look like Moo Moo wandering in the Rose Garden corner of Livermore and North Street. He asked if the Council wanted him to grab them. He believes that these are the dogs that carried out the attacks, not Moo Moo. He was advised that Moo Moo’s report had been submitted. He described the dogs as black and white Kelpie crosses.
  2. [13]
    In his submissions Mr Gulley emphasised the photos of local dogs resembling Moo Moo which were roaming loose around the neighbourhood. I noted that these photos were all taken in 2021, well after the alleged attacks. Mr Gulley had submitted earlier photos to Council after the destruction order and he was concerned that Council had not investigated the wandering dogs in relation to the complaints. Also, that the Riccardo’s did not support the destruction order and that they found him easy to handle. He noted that the Riccardo’s had not witnessed the attack and found Moo Moo inside the pen while another dog had escaped. He had reimbursed Mr Riccardo for the chickens. He stated that when Council contacted him to say they had Moo Moo he was a bit surprised and he remembered saying if “he didn’t have any teeth it would be Moo”. That when he went to the pound it was Moo and he was grateful that he had been found.
  3. [14]
    Mr Gulley stated that he was confused about the addresses given by alleged victims. It is noted that when they described the property in question to Council the correct address was identified as 36 Herbert Street. He was also confused that the same alleged incident and the exact same injury occurred in 2017 and 2019 and that the same people and their partners seem to get injured by dogs in his street despite not living in the immediate block of houses.
  4. [15]
    Mr Gulley provided character evidence supporting Moo Moo in the form of statutory declarations from various people. One statement was from an advocate Lynette Laskus who detailed a conversation with a local postman who stated that he had never had any problems with the dogs at 36 Herbert Street but had had issues with a dog in Mansfield Street and after that dog had a go at him, he made a complaint. The Mansfield Street  location was said to be three houses from Mr Gulley’s. In these statements the witnesses say that they have never seen any aggressive behaviour from Moo Moo and that he would not hurt anyone, that he is playful and that when the gate was open Moo Moo was chained up or kept inside. One of the residents at 36 Herbert Street, stated that she had never seen Moo Moo off the property without supervision. Jesse Gulley, Mr Gulley’s son, stated that he had known Moo Moo since he was a pup and he had never known him to worry anyone or be aggressive towards anyone. He noted that a number of dogs which look like Moo have frequently wandered around on our footpath and the adjoining streets, and still do.

Discussion

  1. [16]
    I accept Mr Gulley’s evidence that Moo Moo may be of good behaviour with those who have been invitees onto Mr Gulley’s property. I do not accept the evidence that the dog Moo Moo was never off the property without supervision as the evidence in regard to the attack which resulted in the dangerous dog declaration and also the attack on 22 August 2020 in regard to the chickens have been accepted by Mr Gulley. There are numerous occasions where the dog has been observed by Council Officers not to be within its enclosure at times when Mr Gulley has not been present. Mr Gulley has submitted that there are many similar dogs in the neighbourhood which could have attacked Mrs Ivers. I accept Mrs Ivers evidence that the dog that attacked her had an association with 36 Herbert Street and that on at least one occasion exited the gate at 36 Herbert Street and after the attack the dog went back up the 36 Herbert driveway. Mr Hansenn clearly observed the dog leave the property at 36 Herbert Street. While there may have been some confusion in regard to the street number by Mrs Ivers and Mr Hansenn the description of the property was that of number 36. Moo Moo has bitten people and other animals and in the latest attack six chickens died.
  2. [17]
    Mr Gulley has claimed that the dog Moo Moo was lost in a creek and obtained a statutory declaration from another person. I note that this fixed the date of Moo Moo’s loss as being in November-December 2019 and yet Mr Gulley had made the same claim in March 2019. When Moo Moo was examined by the Council vet the only issue which was raised was the dogs’ teeth and Mr Gulley was clearly already aware of this. Mr Gulley had also claimed that the dog which attacked Mrs Ivers in August 2019 was a dog which had been there but belonged to someone else. He would not provide further details. Having regard to the discrepancies in Mr Gulley’s evidence I prefer the evidence of Mrs Ivers and the Council witnesses that Moo Moo was the dog which attacked her in February and August 2019 and that Moo Moo was identified by Council officers in August 2019.
  3. [18]
    I am satisfied that when Moo Moo has the opportunity of leaving the property at 36 Herbert Street, he will attack people and animals who are passing by causing and for that reason he is dangerous.

Can Moo Moo be controlled

  1. [19]
    Having regard to the factors set out above it is noted that when Moo Moo is not effective control then it has a predisposition to attack people and animals around its premises at 36 Herbert Street Causing fear and injury. The dog can be non-threatening and has been found to be that way in various circumstances. Its behaviour though, when it is able to leave the property at 36 Hebert Street, shows that it has a tendency to attack passers-by. There was no evidence provided by Mr Gulley in regard to any proposed training for the dog.
  2. [20]
    There is regulated dog enclosure at 36 Herbert Street which was inspected on 21 September 2020 and deemed to be compliant with requirements for a regulated dog enclosure. Mr Gulley confirmed in his submissions that Council officers had inspected the enclosure at his property in September 2020 and they found it compliant. I am satisfied that on numerous occasions when Council have visited the property the dog Moo Moo has not been in its enclosure in particular when Mr Gulley has not been there. Further that on at least some occasions the front gate of the property has been left in a condition where the dog can leave the property and it has attacked people.
  3. [21]
    There is a clear risk of harm to community health and safety in respect of attacks on people and other animals if the dog Moo Moo is able to leave its property.
  4. [22]
    Mr Gulley has complied with the requirements under the regulated dog declaration in terms of building an enclosure and putting up signs etc. He has not though ensured that the dog Moo Moo is normally kept within its enclosure or under effective control. He has been fined on some occasions in regard to his failure to do this and this has not changed his behaviour as the dog was found to be outside of its enclosure in August 2019 well after Mr Gulley was fined. Mr Gulley stated that he expected a fine following the latest incident in August 2020.
  5. [23]
    Mr Gulley has also not cooperated with Council by effectively ensuring that proper investigations could not be carried out by removing Moo Moo from his premises. I do not accept that the dog was lost at any time having regard to the fact that the story took place apparently in February 2019 and November-December 2019 as well and it changed from being taken by a crocodile to chasing a kangaroo.
  6. [24]
    Mr Gulley has tried to blame other dogs for the attacks including claiming that the dog Mrs Ivers observed in August 2019 was another dog. At no stage has he acknowledged that Moo Moo may be capable of attacking people and other animals. I also note that on occasions when there have been attacks there has been intervention form occupants of the property at 36 Herbert Street or only after a relatively long period of time.
  7. [25]
    He has not made any promises to ensure that Moo Moo would be kept in its enclosures or under effective control which clearly has not been the case. He asserted in his final submissions though he took all reasonable steps to ensure that his dogs are contained. This is clearly not the case.
  8. [26]
    Moo Moo is a regulated dog and if it had been kept in accordance with the conditions for regulated dogs following the declaration which was made in August 2017 then there would not have been all of the attacks which have occurred since. Mr Gulley has not complied with the conditions, and he has not given any indication he would comply. Previous fines have not resulted in him changing his behaviour either.
  9. [27]
    I appreciate Mr Gulley’s rights as an owner of Moo Moo to expect to be able to enjoy his pet and the value he places on the life of that pet. The protection of the community must be given a higher priority and the community is at risk from attack by Moo Moo.
  10. [28]
    A destruction order is a last resort and having regard to Mr Gulley’s repeated failure to comply with the requirements of the AM Act in regard to regulated dogs there is no other option than to issue a destruction order in respect of Moo Moo.
  11. [29]
    Having regard to the fact some people consider that Moo Moo is a well-behaved dog and that the dog can interact appropriately with people who it is familiar with or who are invitees I consider that if there is someone other Mr Gulley who is prepared to take ownership of Moo Moo and keep him in accordance with the regulated dog conditions than that opportunity should be available.
  12. [30]
    I therefore amend the decision of Council by confirming the destruction order and staying the destruction order for a period of 21 days from the date of this order to allow Mr Gulley to make application for the transfer of Moo Moo to another person subject to the requirements of the AM Act.

Footnotes

[1] Animal Management Cats and Dogs Act 2008 (AM Act) s 125.

[2]  AM Act s 127(4) s 60 AM Act defines regulated dog as relevantly a declared dangerous dog.

[3]  AM Act s 180 and s 181.

[4] Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) s 20(2).

[5]  QCAT Act s 19.

[6]  QCAT Act s 20(1).

[7]  QCAT Act s 21.

[8]  QCAT Act s 24.

[9]  AM Act s 126.

[10]  AM Act s 104 a person appointed to investigate, monitor and enforce compliance with the AM Act.

[11]  AM Act s 111(1)(b).

[12]  AM Act s 123.

[13]  AM Act s 123.

[14]  AM Act s 100.

[15]  AM Act s 89(2).

[16]  AM Act s 89(3)

[17]  AM Act Schedule 1 ss 2 to 6 and 8.

[18]  AM Act s 70.

[19]  AM Act s 97.

[20]  AM Act s 4.

[21]  AM ACT s 59(2).

[22]  [2020] QCAT 320.

[23]  [2017] QCATA 121.

[24]  ibid at [29].

[25]  Ibid at [30].

[26]  ibid at [31].

[27]  Ibid at [32] and [33].

[28]  Statement of Reasons document [34] to [38].

[29]  Statement of Reasons page 118.

Close

Editorial Notes

  • Published Case Name:

    Gulley v Rockhampton Regional Council

  • Shortened Case Name:

    Gulley v Rockhampton Regional Council

  • MNC:

    [2021] QCAT 302

  • Court:

    QCAT

  • Judge(s):

    Member Allen

  • Date:

    08 Sep 2021

Appeal Status

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

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.