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Ethell v Redland City Council[2021] QCAT 384

Ethell v Redland City Council[2021] QCAT 384

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Ethell v Redland City Council [2021] QCAT 384

 

PARTIES:

BENJAMIN ETHELL

 

 

(applicant)

 

 

V

 
 

Redland city council

 
 

(respondent)

 

APPLICATION NO/S:

GAR296-20

 

MATTER TYPE:

Other civil dispute matters

 

DELIVERED ON:

2 November 2021

 

HEARD ON:

14 October 2021

 

HEARING DATE:

Brisbane

 

DECISION OF:

Member Lember

 

ORDERS:

The decision of the Redland City Council dated 8 June 2020 to issue a Destruction Order in respect of “Bam Bam” is affirmed.

 

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where declared dangerous dog – whether grounds for destruction order

ANIMALS – VARIOUS STATUTORY PROVISIONS – REGULATION OF COMPANION ANIMALS – OTHER MATTERS – where declared dangerous dog – where dog bit member of public – whether grounds for destruction order

Animal Management (Cats and Dogs) Act 2008 (Qld), s 3, s 4, s 20, s 59, s 60, s 126, s 127, s 188

Animal Management (Cats and Dogs) Regulation 2009 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3(b), s 4(b), s 4(c), s 9(1), s 17(1), s 20, s 21, s 23(3), s 32(2), s 62(1), s 95(1)

Gala v Fraser Coast Regional Council [2010] QCAT 576

Naidu v Brisbane City Council [2014] QCAT 420

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

Thomas v Ipswich City Council [2015] QCATA 97

APPEARANCES & REPRESENTATION:

  

Applicant:

Respondent:

Self-represented

Ms Schooth, Solicitor employed by the Respondent

 

REASONS FOR DECISION

What is the application about?

  1. [1]
    The circumstances of this case are particularly sad.  Mr Ethell is the registered owner of Bam Bam, a five-year old male bandog, and has been since Bam Bam was a pup.   The two have a particularly strong bond, having together experienced homelessness and other hardships.  Bam Bam is “friend and family”[1] and as a son[2] to Mr Ethell, upon whom the current circumstances involving Bam Bam are taking quite a toll.
  2. [2]
    Following an incident on 18 February 2020 – when Bam Bam is said to have attacked a meter-reader – Bam Bam was impounded by the respondent Council and declared a dangerous dog pursuant to section 127 of the Animal Management (Cats and Dogs) Act 2008 (Qld) (“the AM Act”).  
  3. [3]
    Mr Ethell did not dispute the dangerous dog declaration.   He, instead, undertook the necessary steps to register Bam Bam and to ensure that he would be adequately enclosed at his home according to permit conditions, with the effect that Bam Bam returned to Mr Ethell’s care on 18 March 2020. 
  4. [4]
    On 14 May 2020, there was another incident involving Bam Bam and a delivery driver, following which the Council made a decision on 8 June 2020 to issue a destruction notice in relation to Bam Bam.
  5. [5]
    Mr Ethell has applied to the tribunal for a review of Council’s decision to issue a destruction order for Bam Bam. 
  6. [6]
    Ms Janine Huybens-Smith is an Animal Management Office for Council and now holds the role of Team Leader. She has been employed by Council since 2018 and as Team Leader has had oversight of Bam Bam’s case, as well as personal involvement in the seizure Bam Bam on 15 May 2020. She is personally familiar with Bam Bam, in addition to supervising those Council officers who now care for him on a day-to-day basis. 
  7. [7]
    Mr Ethell and Ms Huybens-Smith were the only two parties to give evidence at the hearing.

What is the role of the tribunal?

  1. [8]
    The objects of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”)[3] include to have the tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick.
  2. [9]
    The tribunal has jurisdiction to deal with matters if empowered to do so by the QCAT Act or by an enabling Act.[4]
  3. [10]
    The tribunal’s review jurisdiction is the jurisdiction conferred upon it by the enabling Act to “review a decision made or taken to have been made by another entity under that Act”.[5] 
  4. [11]
    Chapter 8, Part 1 of the AM Act permits a dog owner to seek an internal review of a decision to destroy and section 188 of the AM Act provides that an application may be made to the tribunal for external review once the internal review decision is communicated.
  5. [12]
    The role of the tribunal in such an application is to review the circumstances afresh and to produce the correct and preferable decision.[6]
  6. [13]
    The role of the Council is to assist the tribunal in making that decision.[7]

Is Bam Bam a dog in respect of which a destruction order can be made?

  1. [14]
    As Bam Bam is a declared dangerous dog, he is a regulated dog.[8]
  2. [15]
    Bam Bam was seized by Council on 15 May 2020 and remains in Council custody.
  3. [16]
    A destruction order can be made in relation to a seized regulated dog.[9]

What factors are considered when making a decision whether to destroy?

  1. [17]
    A decision to destroy has been said to be a decision of “last resort”, to be made “where the mechanisms in the Act for management fail or are ineffective”.[10]
  2. [18]
    The decision whether to destroy a dog is an exercise of discretion.[11]
  3. [19]
    In Gala v Fraser Coast Regional Council[12] the tribunal said that the basis of a destruction order is:

If there is evidence that the regulated dog has attacked, threatened to attack, or acted in a way that causes fear, to another animal, seizure and in turn a destruction order may be activated.  By inference the consequences are that if the destruction order is carried out there is no danger that any other ‘attack’ can take place by that dog.

  1. [20]
    Senior Member Brown in Nguyen v Gold Coast City Council Animal Management[13] said that in circumstances where a dangerous dog declaration has been made, a decision maker will need to consider whether the dog can be controlled, which is, in turn, “a matter of fact and degree in every case”.[14]
  2. [21]
    Senior Member Brown went on to say that:

[31]…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.[15]

[32] Determining whether a dog can be controlled will require a consideration by a decision maker of a range of matters which might include:

a) The relevant history of the behaviour of the dog giving rise to consideration of the making of a destruction order;

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;

c) The current behaviour of the dog including whether the behaviour of the dog has been, and/or could be, modified through appropriate training;

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;

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;

f) Compliance by the owner of the dog with any permit conditions imposed as a result of the dog being declared a regulated dog;

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;

h) The rights of individuals, including the owner of the dog.

[33] The decision maker must also take into consideration the purposes of the Act generally,[16] the purposes of Chapter 4 specifically,[17] and how the Act states those purposes are to be achieved.[18]

Consideration of those factors

The incident that gave rise to the making of a destruction order

  1. [22]
    The destruction order was made following an incident on 14 May 2020 in which Bam Bam attacked a delivery driver, Mr Singh, who had arrived at the complex occupied by Mr Ethell at or around the same time that Mr Ethell and Bam Bam had arrived home from an outing.  The incident resulted in bite injuries to Mr Singh’s torso, in respect of which Mr Singh received emergency hospital treatment. 
  2. [23]
    Witness statements were tendered to the tribunal in the respondent’s bundle of evidence, including those favouring Mr Ethell’s case.  Other than Mr Ethell, no witnesses to the incident with Mr Singh were made available at the hearing to be cross-examined.
  3. [24]
    Mr Ethell says of the incident that:

Bam Bam and I had just returned from fishing and walking at the dog park The Esplanade Cleveland off/leash designated dog beach.

We drove into the complex around to my parking bay from where I have to walk from there to my front door as I live in units.

So I drive in as I turn at the elbow I see a car blocking my car spot.  The complainant appeared I waved and double parked along side his car..he was at the back of his car at the point when I arrived and when I walked back to get personal things open the front door.  I then went back from Bam Bam as I left him sit in the car.  I opened the door as he is an obedient dog he does not get out until I say to do so.

Bam and I proceed to go inside Bam following me as I turn to walk between cars I hear a voice say “yo” I turn to look at the back of the car and the man standing there out of no where so I say he came from upstairs and startled Bam Bam.

…The complainant should never have been parked inside the complex as its for residents cars only.  

… I took Bam Bam to our home and put him in his cage and continued outside to see if man was ok…he lifted his shirt to see two light marks and a further bit of redness.

  1. [25]
    In oral evidence given at the hearing, Mr Ethell insisted that Mr Singh rushed at Bam Bam by running down stairs towards Bam Bam and it was only the rushing-at or startling that caused Bam Bam to react defensively.  This is not entirely consistent with Mr Ethell’s earlier statement that Mr Singh had called out and that he was already downstairs and standing by the car when the bite occurred.  In any event, had Bam Bam been restrained at the time he was startled by Mr Singh, or by anything else, child, adult or animal that might take him by surprise, the bite could not have occurred. 
  2. [26]
    Council tendered the following evidence of the incident:
    1. (a)
      Mr McMillan signed a statement[19] dated 15 May 2020 who said that he:

observed a tan coloured dog viciously attack a man of Indian nationality.  The dog knocked him to the ground in the carpark as he was leaving his car and started biting him into his back (lower).  The owner of the dog then started wrestling the dog off him.  Man was injured deeply on his back.

  1. (b)
    Mr McMillan was asked by Council to clarify his statement in a telephone call on 3 June 2020 wherein a Council officer recorded the following notes:[20]

Mr McMillan sighted victim getting out of his car, didn’t close the door, then victim sighted dog coming and starting running from it, where the subject dog made contact with him knocking him to the floor. 

  1. (c)
    Mr Singh sent an email[21] to the respondent dated 28 May 2020 wherein in reply to the respondent’s questions, Mr Singh said that he was bitten on the stomach and leg by a “big dog of brownish colour” in respect of which he was treated at Redland Hospital.   
  2. (d)
    A photograph of the injury to Mr Singh’s torso was tendered[22] showing a large dog bite on his torso that had drawn blood.  
  1. [27]
    Mr Ethell did not dispute the veracity of the photograph, pointing out his own vehicle can be seen in the background.  
  2. [28]
    No medical evidence was tendered in relation to the severity of Mr Singh’s wounds, but it was not disputed that he was taken in an ambulance to an emergency department following the incident for treatment and a tetanus injection.
  3. [29]
    Whilst Mr Singh did not attend the hearing to give evidence, and his statement therefore cannot be tested, there is no question on the evidence that Bam Bam attacked Mr Singh.  
  4. [30]
    Mr Ethell does not dispute that Bam Bam made contact with Mr Singh’s torso and that a bite injury resulted, drawing blood and resulting in an emergency hospital attendance via ambulance.    
  5. [31]
    Whilst Mr Ethell classifies the bite as “nip” and not an “attack”, there can be no question that this incident occurred – however arising – that it caused fear to Mr Singh and, indeed to Mr McMillan who witnessed the incident. 

Any other relevant history, including the circumstances giving rise to the declaration that Bam Bam is a regulated dog

Cat – 15 December 2019

  1. [32]
    Council say that on 15 December 2019 Bam Bam broke free from Mr Ethell, who had him on-leash, to chase a cat.  The cat was dead and its owner made a complaint to Council but later withdrew the complaint, preventing Council from taking any action in relation to Bam Bam at the time.
  2. [33]
    Mr Ethell says[23] of the incident with the cat that:

The last time he was seized it was my fault not Bam’s.

The cat was outside on the nature strip and broke my tether from my grip as I was near out front of residence and on my phone.

Meter reader - 18 February 2020

  1. [34]
    Council say that on 18 February 2020 Bam Bam attacked Mr Weston, an electricity meter-reader at the premises where Bam Bam and Mr Ethell were residing temporarily.
  2. [35]
    Council officers had a telephone conversation with Mr Weston on 20 February 2020 wherein their records note that he said:

He was walking past the property and using a hand-held device to do a property check when he noted the garage door wide open and a large dog then come at him.   He advised he was waiting for the dog to be jerked back by a tether but that didn’t happen.  He was knocked to the ground and used the hand-held device to jam into the dog’s mouth to protect himself.  His trousers were completely ripped in this process before the resident came out and grabbed the dog.

  1. [36]
    Photographs of the damage to the hand-held device and the ripped trousers were tendered in evidence.[24]   The entire length of Mr Weston’s trousers has been torn down one leg.
  2. [37]
    Mr Weston provided a statement[25] to Council on 22 February 2020 in which he says he noticed Bam Bam sitting below a half-open garage roller door and when Bam Bam noticed Mr Weston he “instantly barred its teeth, growling and charging at me full pace”.   He goes on to describe an attack during which Bam Bam advanced upon him several times, lunging, growling and gnashing, and could not be discouraged by forceful “NO” commands, shoves or a fist to the head.  Mr Weston was only saved, he says, by the intervention of Ms Vaughan.  
  3. [38]
    As a consequence of the attack, Mr Weston says that he strained his back and his knee and had to take one day off work.
  4. [39]
    Ms Vaughan, in whose care Mr Ethell left Bam Bam, wrote a statement[26] wherein she says:

I heard some very loud barking and a man yelling.

I jumped up and ran out the front to find Bam the dog going at a man quite strongly and the man was on the ground yelling at the dog to stay back.  I yelled at Bam two to three times and he backed down and walked back to the shed.

  1. [40]
    Ms Vaughan was not called to give evidence at the hearing and therefore her evidence could not be tested.  Similarly, Mr Weston did not give evidence.
  2. [41]
    Mr Ethell was not present when the incident occurred, saying that he left the premises with Bam Bam’s leash tethered to the leg of a couch in the garage to the home.   He can only assume, he says, that Bam Bam pulled the leash from beneath the couch leg.   
  3. [42]
    Again, although witnesses were not available to be questioned, I am satisfied that there was an incident involving Bam Bam and Mr Weston in which Bam Bam attacked Mr Weston, causing damage to his clothing, in which Mr Weston was knocked to the ground.    
  4. [43]
    Mr Ethell did not dispute that this incident occurred, either at the time it occurred or later when the incident was relied upon by Council to declare Bam Bam a dangerous dog.
  5. [44]
    Incident during impound – March 2020
  6. [45]
    Ms Huybens-Smith wrote the following in her CRAM542095 Dog Investigation Summary statement dated 10 March 2020:[27]

I have consulted with Animal Shelter staff who have advised me that the dog is aggressive.   Further, I have received a report from the Animal Shelter Coordinator who advised me that she witnessed the subject dog Bam Bam attempt to bite another Officer while under the control of his owner Ben Ethell whilst an onsite visit was taking place.

  1. [46]
    When questioned in the hearing, Ms Huybens-Smith said that Bam Bam lunged at a Council officer when the officer was attempting to move him from a holding pen for Mr Ethell’s visit.
  2. [47]
    Mr Ethell, who was said by Council to have been present during the incident, denied that the incident occurred.

Bam Bam’s current behaviour, and whether it has been or could be modified through training

  1. [48]
    Ms Huyben-Smith spoke in the hearing of the love that Bam Bam has for certain Council officers, however, that he is aggressive with strangers
  2. [49]
    Evidence led by Ms Huybens-Smith in relation to Bam Bam’s current behaviour was as follows:
    1. (a)
      Council take care to ensure that two officers are with Bam Bam at all times when he is taken to the off leash exercise area, and that those two officers are officers with whom Bam Bam is familiar and has a fondness for.
    2. (b)
      Bam Bam does not like strangers and gets “worked up” when his favourite Council officers are not rostered on.  Even when cleaning his pen, Council must take extra precautions to keep staff safe, including using barriers to separate Bam Bam from staff cleaning his pen.
    3. (c)
      On a recent visit a wallaby was loose in the off-leash area where impounded dogs are taken for exercise.  Had Mr Ethell not restrained Bam Bam he would have attacked the wallaby.  Mr Ethell said of this incident that the wallaby should not have been there – which is true – but the concern is the risk that Bam Bam posed to the wallaby because of his willingness to attack it.  
  3. [50]
    Mr Ethell offered to undertake whatever courses might be necessary to have Bam Bam retrained and said that he had begun making inquiries on social media about this. 
  4. [51]
    Ms Huyben-Smith was strongly of the view that training would not modify Bam Bam’s aggressive behaviour. 
  5. [52]
    I find that Bam Bam’s behaviour has not been modified despite several incidents with him and there is no evidence that has been submitted by way of veterinary or other like reports that could support a finding that Bam Bam’s behaviour could be modified with training.

Bam Bam’s interactions with people in his home or entering his property

  1. [53]
    Mr Ethell’s evidence is that:
    1. (a)
      Mr Warlow who undertakes fortnightly garden work for Mangrove Housing at the complex says[28] “when he is out of his enclosure I do maintenance outside of the yard and have never seen Bam Bam to be aggressive” and that “he always looks happy and healthy”; 
    2. (b)
      Ms Raihi, Mr Ethell’s former partner, signed an undated statement[29] wherein she said, among other things:
      1. over three years and ten months “Bam has become a very social, obedient and well behaved boy”;
      2. that Bam Bam is “always friendly and well behaved”; and
      3. that:

Bam has bitten in the past, he has never attacked.

A bite is very different from an attack.  He isn’t an aggressive dog.

  1. (c)
    Tracey Conway, a co-resident of the complex where Mr Ethell lives signed a statement dated 23 May 2020 that Bam Bam is a “big gentle giant unless startled”.[30]
  2. (d)
    Tracy-Lee Truswell, also a co-resident signed a statement[31] dated 22 May 2020 that “Bam Bam is a very placid, playful and gentle dog” and “very well behaved, well trained and extremely well looked after”.
  3. (e)
    Darren Gardner, Ms Truswell’s partner, signed a statement[32] dated 22 May 2020 and also says that “Bam Bam is a very well trained and well-behaved dog”.
  1. [54]
    None of these witnesses were made available at the hearing to be cross-examined on their evidence.  Their statements were however made available to and considered by the Council in making the decision under review. 
  2. [55]
    Their statements directly contradict the undisputed evidence that persons such as Mr Singh and Mr Weston, being persons entering property occupied by Bam Bam have not been safe when doing so.

The risk Bam Bam poses to community health or safety, including to people and animals outside his home

  1. [56]
    Council say that Ms Green, who at the time lived in the complex occupied by Mr Ethell made several reports to Mangrove Housing[33] regarding Bam Bam including the following:
    1. (a)
      that on 30 March 2020 Mr Ethell threatened another unit complex resident with this dog – this assertion was repeated by Ms Green to Council on 15 May 2020 according to their telephone log records wherein she is attributed as saying that she had witnessed Mr Ethell “threaten a neighbour that he would have the dog attack him”;[34]
    2. (b)
      on 8 May 2020 Bam Bam was observed by Ms Green to be unleashed and uncontrolled in the unit complex; and
    3. (c)
      on 12 May 2020 Bam Bam was observed by Ms Green and one of her support workers to be unleashed, uncontrolled and unsupervised within the unit complex.
  2. [57]
    Ms Green was not called to give evidence at the hearing and the statements attributed to her cannot be tested and should be given little weight on that basis.
  3. [58]
    Mr Ethell dismissed Ms Green as a “dobber” and something of a busy-body. 
  4. [59]
    On 24 April 2020 Council say[35] they received a complaint that Bam Bam was displaying aggressive behaviour through pool type fencing that borders his enclosure (but does not form part of his enclosure) at people walking past the property.  No source is attributed to this complaint.
  5. [60]
    I am satisfied that the incidents with the cat, Mr Weston, Mr Singh and the wallaby, as well as the aggressive Bam Bam has shown to certain Council officers support a finding that Bam Bam poses a risk to community health and safety.

Compliance by Mr Ethell with permit conditions

  1. [61]
    Once a dog is a regulated dangerous dog, the risk it poses to persons and animals relies, one might say entirely, on its owner’s compliance with schedule 1 of the AM Act, which set out in the permit conditions applying to dangerous dogs and include obligations:
    1. (a)
      to muzzle the dog if the dog is not in its home;[36]
    2. (b)
      to have effective control of the dog if the dog if the dog is not in its home;[37]
    3. (c)
      to ensure that the dog travelling in a vehicle is enclosed or restrained in a way that prevents the dog from being outside the enclosed part of the vehicle;[38] and
    4. (d)
      to keep the dog in its enclosure when it is at home.[39]
  2. [62]
    If the dog owner does not comply with schedule 1 then not only do they risk community safety, but they risk the life of their dog because that failure to comply can lead to the circumstances of harm, fear and risk that give rise to the power to seize and destroy.
  3. [63]
    In this case there is clear evidence that Mr Ethell did not comply with his permit conditions with respect to the incident with Mr Singh because at the time of the incident Bam Bam was arriving home from an outing but was not:
    1. (a)
      in his home (the carpark to his complex is a shared area);
    2. (b)
      muzzled;
    3. (c)
      enclosed or restrained in the vehicle in which he had travelled; or
    4. (d)
      under the effective control of Mr Ethell (he was not on a leash held by Mr Ethell).
  4. [64]
    Mr Ethell said that, because he and Bam Bam had been at the beach, Bam Bam’s muzzle and leash were wet and that is the only reason he was not wearing them.   Additionally, Mr Ethell said that he believed the carpark was empty for the short distance that Bam Bam had to travel between his vehicle and his home.  This contradicts his earlier written statement when he says he noticed Mr Singh in the carpark when he and Bam Bam arrived.  It also shows a disregard for the permit conditions and the risk Bam Bam poses to unexpected appearance by adults and children and animals.
  5. [65]
    Mr Ethell also said that the incident with Mr Singh is the only occasion that he has allowed Bam Bam to walk unleashed or unmuzzled since he was declared a dangerous dog.  I doubt this to be true.  Mr Ethell’s reference to taking Bam Bam to the “off leash” park is concerning – Bam Bam cannot be exercised off leash under his permit conditions so taking him to an off leash park would be pointless, unless he was in fact being exercised off leash. 
  6. [66]
    Further, when Council attended the premises to seize Bam Bam the day following the incident with Mr Singh, Mr Ethell says:[40]

I came back out with Bam Bam with his lead on his collar, no muzzle as he is not aggressive or provoking.

  1. [67]
    I have some concerns with evidence given by Mr Ethell in the hearing that Bam Bam is not kept in his enclosure when Mr Ethell is home.  When asked what would happen if a cat entered Mr Ethell’s yard when Bam Bam was not being kept in his enclosure, he said “the cat shouldn’t be there”.  When asked what would happen if a child entered the yard to retrieve a ball, Mr Ethell simply said “a child can’t enter the yard”.  Mr Warlow’s evidence suggests that Bam Bam is not kept in his enclosure when Mr Warlow is attending to do yard work. 
  2. [68]
    I find that Mr Ethell has a history of non-compliance with permit conditions and I doubt that he would comply in the future, even if given an opportunity to do so.

Whether Mr Ethell has demonstrated insight into, and understanding of, Bam Bam’s behaviour and has acted appropriately to mitigate any risk he poses

  1. [69]
    Had Mr Ethell been compliant with permit conditions, namely, had Bam Bam been muzzled and on-leash when he was accompanying Mr Ethell into his home from the complex carpark, Mr Singh could not have been injured and the incident that gave rise to the decision under review would have been avoided.  
  2. [70]
    Mr Ethell said in the hearing that he accepts responsibility for what occurred with Mr Singh and asks the tribunal not to punish Bam Bam for his own failing.
  3. [71]
    However, I am not satisfied that this acceptance of responsibility by Mr Ethell demonstrates his insight into and an understanding of the risk that Bam Bam poses to others, because he does not appear to accept that Bam Bam is a risk.  He is therefore unlikely to take steps to mitigate the risk Bam Bam poses. The evidence that leads me to draw this conclusion includes:  
    1. (a)
      Mr Ethell repeatedly said that Mr Singh “rushed”, “came at” and “startled” Bam Bam, which seems to imply that Mr Singh should bear some responsibility for the circumstances of the attack upon him;
    2. (b)
      Mr Ethell does not recognise that what happened with Mr Singh as either serious or an “attack”, rather, sought to make a distinction between a “bite” and an “attack” and at one point in the hearing referred to Mr Singh’s injury as “only a nip”; 
    3. (c)
      Mr Ethell refers throughout his evidence to how well behaved Bam Bam is, and that he is “not dangerous”,[41] despite Bam Bam’s history and despite the permit conditions he agreed to abide by when Bam Bam was returned to his care in March 2020;  
    4. (d)
      Mr Ethell appeared to be dismissive of the risk that Bam Bam poses to other animals, including:
      1. saying that the cat that was chased by Bam Bam in late 2019 and that, the evidence suggests, Bam Bam killed, “shouldn’t have been on the medium (sic) strip”;
      2. when leading Bam Bam out of his home to be seized on 15 May 2020, not having him muzzled “as he is not aggressive or provoking”;
      3. when discussing the wallaby who entered the off-leash area at the Council’s kennels and was chased by Bam Bam, Mr Ethell saying “the paddock should have been cleared out”; and
      4. Mr Ethell’s reference at the close of the hearing to Bam Bam being “so called aggressive”.  When I asked what he meant by “so called” he said that he doesn’t agree that Bam Bam is aggressive “unless he feels threatened”.

Mr Ethell’s rights

  1. [72]
    Bam Bam is a beloved pet to Mr Ethell, who produced medical evidence[42] that his physical and mental health will significantly deteriorate if Bam Bam is destroyed.
  2. [73]
    In reviewing the Council’s decision, I have been keenly aware of Mr Ethell’s experience of hardship and reliance upon his relationship and companionship with Bam Bam for his ongoing well-being.
  3. [74]
    I cannot allow those concerns, however, to override a consideration of concerns for community health and safety.

What does the AM Act intend?

  1. [75]
    The purposes of the AM Act include providing for the effective management and responsible ownership of regulated dogs.[43]  These purposes are achieved through, among other things, imposing obligations on the owners of regulated dogs to ensure the dogs do not attack or cause fear to people or other animals.[44]
  2. [76]
    The purposes of Chapter 4 are to:
    1. (a)
      protect the community from damage or injury, or risk of damage or injury, from particular types of dogs called ‘regulated dogs’; and
    2. (b)
      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.[45]
  3. [77]
    The purposes of Chapter 4 are achieved by, among other things:
    1. (a)
      providing for local governments to declare dogs to be dangerous dogs;
    2. (b)
      imposing conditions on keeping, and requirements for the control of, regulated dogs; and
    3. (c)
      allowing dogs to seized and destroyed.[46]
  4. [78]
    As I mentioned, Mr Ethell says that he, rather than Bam Bam, should be the one punished.  However, the purpose of a destruction notice is not to punish the animal or its owner for wrongdoing, rather, it is a decision made as a ‘last resort” outcome when there are no alternative outcomes that might reasonably and reliably ensure community safety.

Findings and Decision

  1. [79]
    Bam Bam was seized by the respondent with the co-operation of Mr Ethell on 15 May 2020 and has, unfortunately since that date, been confined to the care of the respondent pending the outcome of these proceedings, although Mr Ethell visits him one to two times per week, depending on the respondent’s availability.
  2. [80]
    No doubt, the intervening time has been traumatic for Bam Bam as it has been for Mr Ethell.  It brings me no joy to be called upon to make a decision that will have the effect of bringing Bam Bam’s life to an end.
  3. [81]
    I believe Bam Bam to be a beautiful dog, capable of great love.  However, the weight of the evidence satisfies me that he is a risk to the community and there is no reliable alternative to managing the threat he poses other than by way of destruction.
  4. [82]
    As an outcome of last resort, I am convinced that the only way to ensure Bam Bam does not attack or cause fear to people or other animals in the future is to permit him to be destroyed.
  5. [83]
    For those reasons, the decision of the Redland City Council dated 8 June 2020 to issue a Destruction Order in respect of Bam Bam is affirmed. 

Footnotes

[1]  Part C of the Application to review a decision filed 25 August 2020.

[2]  Exhibit 1, JHS16 Statement of Mr Ethell declared 22 May 2020 at page 6.

[3]  Section 3(b) of the QCAT Act.

[4]  Section 9(1), ibid.

[5]  Section s 17(1), ibid.

[6]  Section 20, ibid.

[7]  Section 21, ibid.

[8]  Section 20(a) of the AM Act.

[9]  Section 127(4), ibid.

[10] Thomas v Ipswich City Council [2015] QCATA 97 at paragraph [18].

[11] Naidu v Brisbane City Council [2014] QCAT 420 at [10].

[12]  [2010] QCAT 576 at paragraph 28.

[13]  [2017] QCATA 121.

[14]  Ibid, at paragraph [3].

[15]  Ibid, at paragraph [31].

[16]  Section 3 of the AM Act.

[17]  Section 59(1), ibid.

[18]  Sections 4 and 59(2), ibid.

[19]  Exhibit 1, Annexure JHS14.

[20]  Exhibit 1, Annexure JHS11.

[21]  Exhibit 1, Annexure JHS15.

[22]  Ibid.

[23]  Exhibit 1, Annexure JHS16, Statement of Mr Ethell declared 22 May 2020.

[24]  Exhibit A, Annexure JHS06.

[25]  Ibid.

[26]  Exhibit 1, Annexure JHS06 Statement of Ms Vaughan declared 8 March 2020.

[27]  Exhibit 1, Annexure JHS07.

[28]  Signed Statement of Mr Warlow attached to the Application for review filed 25 August 2020.

[29]  Exhibit 1, Annexure JHS16, Statement of Ms Raihi, undated. 

[30]  Exhibit 1, JHS16.

[31]  Ibid.

[32]  Ibid.

[33]  Exhibit 1, Annexure JHS17, Dog Attack Investigation Summary.

[34]  Exhibit 1, Annexure JHS11 Redland City Council CRAM reports.

[35]  Ibid.

[36]  Schedule 1. s3(1)(a) of the AM Act.

[37]  Section 3(1)(b), ibid.

[38]  Section 3(2), ibid.

[39]  Section 4(2), ibid.

[40]  Exhibit 1, Annexure JHS16, Statement of Mr Ethell declared 22 May 2020.

[41]  Exhibit 1, Annexure JHS16, Statement of Mr Ethell declared 22 May 2020.

[42]  Exhibit 3, Doctor’s certificate dated 13 September 2021.

[43]  Schedule 1, Section 3(c) and (d) of the AM Act.

[44]  Section 4(g) and (l), ibid.

[45]  Section 59(1), ibid.

[46]  Ibid, s 59(2).

Close

Editorial Notes

  • Published Case Name:

    Ethell v Redland City Council

  • Shortened Case Name:

    Ethell v Redland City Council

  • MNC:

    [2021] QCAT 384

  • Court:

    QCAT

  • Judge(s):

    Member Lember

  • Date:

    02 Nov 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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