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Loughnan v Brisbane City Council[2021] QCAT 331

Loughnan v Brisbane City Council[2021] QCAT 331

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Loughnan v Brisbane City Council [2021] QCAT 331

PARTIES:

Nathan loughnan

(applicant)

v

BRisbane city council

(respondent)

APPLICATION NO/S:

GAR512-19

MATTER TYPE:

General administrative review matters

DELIVERED ON:

1 October 2021

HEARING DATE:

4 November 2020

HEARD AT:

Brisbane

DECISION OF:

Member Holzberger

ORDERS:

  1. The application for review of a decision filed on 19 December 2019 is dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – whether attack by the applicant’s dog on another dog was a serious attack – consideration of the scope of discretionary power conferred on the Tribunal by the Act

Animal Management (Cats & Dogs) Act 2008 (Qld)

Queensland Civil and Administrative Tribunal Act 2009

Brisbane City Council v Roy [2020] QCATA 147

Imbrogno & Anor v Brisbane City Council [2017] QCATA 148

APPEARANCES &

REPRESENTATION:

Applicant:

Self-represented

Respondent:

Ms C Hirth, solicitor, Brisbane City Council

REASONS FOR DECISION

  1. [1]
    On 23 October 2019 the Brisbane City Council issued a Notice of Regulated Dog Declaration – Dangerous Dog (the Declaration) pursuant to the Animal Management (Cats and Dogs) Act 2008 (Qld) (the AM Act) to Nathan Loughnan with respect to his dog Rascal, a Manchester Terrier.
  2. [2]
    At Mr Loughnan’s request that decision was internally reviewed and on 19 November 2019 a decision confirming the original decision was issued. 
  3. [3]
    Mr Loughnan has now applied to the Tribunal for an external review of the internal review decision.  The review is conducted by way of a fresh hearing on the merits.[1]
  4. [4]
    The hearing was held at Brisbane on 4 November 2020 and the decision reserved to enable Mr Loughnan to prepare written submissions in response to the Brisbane City Council’s written outline of submissions which was provided at the hearing and for the Brisbane City Council to respond if necessary to those submissions.
  5. [5]
    The Brisbane City Council has power to issue a regulated dog declaration pursuant to s 89 of the AM Act.
  6. [6]
    Section 89(2) of that Act relevantly provides:
  1. (2)
    A dangerous dog declaration may be made for a dog only if the dog –
  1. (a)
    has seriously attacked or acted in a way that caused fear to a person or other animal. 
  1. [7]
    In this case the Declaration was issued because Brisbane City Council considered that Rascal had seriously attacked another dog on 25 August 2019. 
  2. [8]
    The identity of the 2 dogs involved in the incident is not in dispute.  One is Rascal and the other a Maltese Terrier named Casper owned by Brooke Skuse. 
  3. [9]
    It is Ms Skuse’s evidence that in the late morning of 25 August 2019 she, in the company of her father, was walking Casper under leash in Dean Street, Toowong.
  4. [10]
    As she approached 56 Dean Street where Mr Loughnan resides which, at the time, was not gated she saw a medium sized dog which turned out to be Rascal off leash and apparently unsupervised.  Rascal ran towards her and bit into Casper’s back.  Casper ended up in the gutter, between the gutter and a parked car and Rascal continued to bite the back of Casper while both Ms Skuse and her father and later another man attempted to extricate Casper from Rascal’s grasp.  Neither Ms Skuse’s father or the other man gave evidence in the proceedings.
  5. [11]
    Mr Loughnan then intervened and the dogs were separated.  It is Mr Loughnan’s evidence that he “immediately grabbed Rascal, separated his jaws and picking him up”.[2]
  6. [12]
    In his submissions Mr Loughnan attacks Ms Skuse’s credibility saying her version of the incident was altered through various statements made by her to the Brisbane City Council and in these proceedings and in particular in relation to the attack itself the timing of his intervention and the details of the separation of the dog. 
  7. [13]
    He also says that her demeanour and that of her father was hysterical and would lead to inaccuracies and exaggeration in her evidence.
  8. [14]
    Specifically Mr Loughnan says that in her statement to the Brisbane City Council Ms Skuse says that Rascal ran up the driveway and attacked while in her affidavit of 1 May 2020 she says that Rascal sniffed Casper before attacking.  In cross examination she stated that Rascal “stood over” and “sniffed” Casper.
  9. [15]
    I do not see that the omission of that detail from her initial statement would lead to concerns about the rest of her evidence nor do I see that the issue of whether Rascal paused before the incident in any way changes the outcome.
  10. [16]
    Mr Loughnan further says that Ms Skuse’s estimate of time he took to intervene varies from a minute to a minute and a half in her initial statement to the Brisbane City Council and to between 5 and 30 seconds in cross examination.  That is not correct.  That latter estimate was in response to a question from Mr Loughnan about the timing of the intervention of the bystander who had intervened earlier.
  11. [17]
    I note that throughout his evidence Mr Loughnan has the date of the incident as 24 May.  Clearly, that is incorrect but it does not mean that the rest of his evidence lacks credibility.
  12. [18]
    I also reject his contention made in submissions that it took 3.28 seconds to run from where he was standing to the scene of the incident.  The incident could have begun long before he became aware of it. 
  13. [19]
    I would also expect in what was a frightening situation the participants would have differing perceptions of the role each of them played in separating the dogs and particularly where 2 of them did not give evidence.  I do not see those differences effect the credibility of either Ms Skuse or Mr Loughnan.
  14. [20]
    I believe Ms Skuse is an honest witness.  I accept that she was under great stress and that may have affected her perception of time and detail however that does not affect the weight which must be given to her evidence that Rascal left the property to attack Casper, bit him on the back and continued to grip him while he was in the gutter.
  15. [21]
    That evidence is supported by Mr Loughnan’s own evidence that when he arrived at the scene Rascal was biting Casper and he prized Rascal’s jaws apart to free the other dog.
  16. [22]
    I also do not accept that the attack was somehow “defensive”.[3]  I do not accept on any level that it is somehow justification for a dog to defend its territory by leaving it to attack a person or animal outside of it because the dog perceives some kind of threat.  Certainly it is not a relevant consideration under the AM Act.
  17. [23]
    I am satisfied that Rascal attacked Casper on 25 August 2019.  I am also satisfied that the attack was a serious attack. 
  18. [24]
    “Serious attack” is defined in s 97 of the AM Act as an attack causing bodily harm, grievous bodily harm or death.
  19. [25]
    Bodily harm is defined in the Criminal Code as any bodily injury which interferes with the health or comfort.[4]
  20. [26]
    The report of Dr Winter of the Ipswich Veterinary Group Booval Veterinary Hospital, the Veterinarian who treated Casper after the attack, indicates a single 7mm puncture wound in the back and a number of shallow scrapes on the body.
  21. [27]
    The injuries are consistent with the description of the attach by both Mr Loughnan and Ms Skuse and I am satisfied that injuries result from the attack.
  22. [28]
    Mr Loughnan submits that the attack is not a serious because it did not cause  the loss of any body parts, serious disfigurement or permanent injury nor was surgery necessary.  The definition of bodily harm does not require any of those things to have occurred.  Mr Loughnan further submits that the scrapes suffered by Casper could have been caused when Casper was wedged between the car and the gutter.  Even if this is the case those injuries, while minor, resulted from the attack.
  23. [29]
    In Brisbane City Council v Roy [2020] QCATA 147, paragraph 62 where the wounds caused by the attack consisted of 3 small puncture wounds the Appeals Tribunal held that a finding of the attack was not serious was not open.
  24. [30]
    I am satisfied in those circumstances that Casper suffered bodily harm as a result of the attack in that it interfered with his health and comfort.
  25. [31]
    Once a Council issues a proposed Declaration Notice it, and the Tribunal in its place, is required to consider any evidence and submissions from the dog owner[5] but if satisfied that a ground for making the decision still exists it must make a Regulated Dog Declaration.
  26. [32]
    While the Council has some discretion as to whether to issue the proposed Declaration once it does so that discretion is limited.  Where the ground on which the Declaration is issued is a serious attack the discretion disappears.  The discretion of Brisbane City Council to issue the proposed Declaration is not the decision under review and is not in fact a reviewable decision.[6]
  27. [33]
    The Appeal Tribunal confirmed in the decision of Imbrogno[7] that use of the word must in s 94 means that once satisfied that the serious attack occurred a dangerous dog declaration must be made.
  28. [34]
    Accordingly the decision of the Brisbane City Council of 19 November 2019 is confirmed.

Footnotes

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

[2]Statement of Nathan Loughnan 17 June 2020 paragraph 26.

[3]Statement of Nathan Loughnan 17 June 2020, paragraph

[4]Criminal Code Act 1899 Schedule 1.

[5]AM Act s 94(1).

[6]Imbrogno & Anor v Brisbane City Council [2017] QCATA 148 at paragraph 47.

[7]Ibid at paragraph 56.

Close

Editorial Notes

  • Published Case Name:

    Loughnan v Brisbane City Council

  • Shortened Case Name:

    Loughnan v Brisbane City Council

  • MNC:

    [2021] QCAT 331

  • Court:

    QCAT

  • Judge(s):

    Member Holzberger

  • Date:

    01 Oct 2021

Appeal Status

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

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