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Mitchell v Gympie Regional Council[2021] QCAT 40

Mitchell v Gympie Regional Council[2021] QCAT 40

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Mitchell v Gympie Regional Council [2021] QCAT 40

PARTIES:

Kate Mitchell

(applicant)

v

Gympie Regional Council

(respondent)

APPLICATION NO/S:

GAR297-17

MATTER TYPE:

General administrative review matters

DELIVERED ON:

29 January 2021

HEARING DATE:

28 August 2020

HEARD AT:

Maroochydore

DECISION OF:

Member Poteri

ORDER:

The decision of the Gympie Regional Council made on 22 August 2017 to destroy Maggie and Max is confirmed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where dogs have attacked and caused injury to one dog and the death of another dog – where the dogs have been seized – where there are allegations that the owner of the dogs does not show acceptance of responsibility for the actions of the dogs – where there are allegations of further risk of noncompliance – where a destruction order has been made - where the Tribunal has invited the decision maker to reconsider the making of the destruction order.

Animal Management (Cats and Dogs) Act 2008 (Qld) s 3, s 4, s 59, s 89, s 127, s 188

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 19, s 20, s 23

Cutbush v Scenic Rim Regional Council [2019] QCAT 80

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

Thomas v Ipswich City Council [2015] QCATA 97

Bradshaw v Moreton Bay Regional Council [2018] QCATA 140

APPEARANCES &

REPRESENTATION:

Applicant:

B McMillan of Counsel instructed by Lumme Rynderman Lawyers

Respondent:

J Sproule of Counsel instructed by Armstrong Legal

REASONS FOR DECISION

  1. [1]
    I heard the evidence relating to the application on 28 August 2020 and I heard oral submissions from Counsel on 11 September 2020. The circumstances and issues relating to this application date back to 2016 and were the subject of an order in June 2018 and an appeal decision in February 2020. The decision of the Appeal Tribunal was to set aside the original decision and return the matter to a differently constituted Tribunal for consideration.
  2. [2]
    The dogs relating to these proceedings are owned by the Applicant (Ms Mitchell) and are named Max and Maggie. They were impounded by the Respondent (Council) following an incident on 5 July 2017. They remain impounded by the Council. At the time of the alleged incidents in 2016/2017 Maggie was fully grown and weighed approximately 25 kgs and Max was a pup and smaller than Maggie. Maggie is a female brown and white American Staffordshire Pit Bull Terrier, and Max is a male black American Staffordshire Pit Bull Terrier and he now weighs approximately 25 kgs. Max has not been desexed. Since the impoundment Maggie has been desexed by the Council for health reasons.
  3. [3]
    On 23 February 2017 Ms Mitchell’s dogs were declared by the Council as regulated dangerous dogs pursuant to s 89 of the Animal Management (Cats and Dogs) Act 2008 (Qld) (AM Act). Ms Mitchell initially contested the making of these declarations, but she now concedes that the declarations were properly made by the Council. However, Ms Mitchell still maintains her challenge to the facts and circumstances that were the basis of the Council’s decision to declare the dogs as regulated dangerous dogs.
  4. [4]
    Ms Mitchell is contesting the making of the destruction order by the Council on 22 August 2017 (the Decision) pursuant to s 188 of the AM Act.
  5. [5]
    I am reviewing the Decision pursuant to s 19 and s 20 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). That is, I have all the functions of the decision maker in the making of the Decision and I must hear and decide a review of the Decision by way of a fresh hearing on the merits. During the hearing Counsel for both parties did not raise any jurisdiction or procedural issues, so I proceeded to hear the matter.
  6. [6]
    During the hearing in 2018 the Council made an application for Ms Mitchell to pay their costs relating to the seizure and housing of the dogs. This issue was not pursued by the Council in these proceedings.
  7. [7]
    At the time of these events Ms Mitchell was at all relevant times the owner of a 15 hectare property (the Property) at Tamaree, near Gympie. The Property is shown as lot 348 on a Council map of surrounding properties and is part of Exhibit 5. Ms Mitchell lived there with her partner, Price Hill (Price), and her children. She has horses on the property, and she gave evidence that her original intention in purchasing Max was to breed dogs with Maggie. There are two houses on the property. Ms Mitchell lives in one of the houses and Price’s father, Robert Hill (Robert), lived in the other house. The map (Exhibit 5) shows two structures on the Property which represent the two houses.
  8. [8]
    The issues relating to these proceedings fall into two broad categories. They are the alleged attacks by the dogs and the alleged noncompliance and conduct of Ms Mitchell. I will firstly deal with the alleged attacks.

Alleged Attacks

  1. [9]
    The first series of alleged attacks centre around Robert who was living on the Property between 2008 and 2018. Evidence shows that Robert was living there with his wife, Narelle Hill (Narelle) and the two houses were some 35 metres apart. There is a fence around the main house where Ms Mitchell resides. The fence had an electric gate which Robert says was not working properly and he reported this to Price and Ms Mitchell. It is also apparent that the gate was left open on numerous occasions by Ms Mitchell’s children.
  2. [10]
    Robert is the owner of a female Border Collie cross Kelpie named Joe. Robert says the first incident occurred in August 2016 when he saw Maggie attack Joe in the horse stables causing some wounds which were treated, and the wounds eventually healed. Max was not involved in this incident. He says that he reported the incident to Ms Mitchell and an argument ensued. At the time of this incident no complaint of this incident was reported to the Council. There is no evidence that this attack on Joe was provoked by Joe and there was no evidence that Maggie was injured in the attack.
  3. [11]
    Robert says that the next incident occurred at approximately 3 am on the morning of 15 November 2016 where he says that Maggie and Max escaped from their enclosure and attacked Joe in Robert’s garage. Joe always slept in the garage. Robert says that he witnessed the attack when he broke up the attack. This attack resulted in Maggie causing some injuries to Joe’s ear and throat. Robert says that Max was involved by trying to bite on the back leg of Joe. Robert says that there was blood on the floor of the garage and again the wounds were treated, and they healed. No veterinarian treatment was required for the injuries, and no photos of the injuries were taken by Robert. Robert says when he reported the attack to Ms Mitchell and Price, they did not seem to care about the alleged attack.
  4. [12]
    Regarding the November 2016 incident, there was no evidence that Joe provoked this attack and there was no evidence of any injuries occasioned to Maggie and Max. Further this attack occurred in Robert’s garage. That is Joe’s home or domain. This leads to the conclusion that Maggie and Max were the instigators of this incident.
  5. [13]
    Robert did report the attack to Dan Rogers (Rogers) of the Council on 15 November 2016. Later that day he advised Rogers that he had decided that he did not wish to proceed with the complaint because he says he did not want more trouble with Price and Ms Mitchell.
  6. [14]
    Robert says that another incident occurred about 11:30pm on 20 January 2017 when he heard a loud squeal, and he went outside and observed Maggie and Max attacking Joe in his yard. He said that Maggie had Joe by the throat and Max had Joe by the legs. He says that he had to hit Maggie with a walking stick, and he feared that the dogs were going to turn on him. Eventually he says that he was able to separate the dogs. He said that Joe disappeared, and he was not found until the next morning. In this incident Joe suffered five wounds to the neck and groin which required treatment from a veterinarian at a cost of $550. Joe’s injuries took four to five weeks to heal. A copy of the veterinarian's report is Annexure A to the affidavit of Robert Hill dated 9 July 2020. Robert paid the veterinarian’s fees and there is no evidence that there was any offer by Ms Mitchell to reimburse Robert for the cost of the treatment by the veterinarian.
  7. [15]
    This incident occurred in Joe’s yard or home; the severity of the injuries to Joe and no evidence of any injuries to Maggie or Max leads to the conclusion that this attack was not provoked by Joe and Maggie and Max were the instigators of this attack.
  8. [16]
    As a result of this incident Robert made a formal complaint to the Council. The incidents with Joe and the complaint to Council caused relations between Robert/Narelle and Ms Mitchell/Price to completely break down and resulted in Robert/Narelle leaving the Property and proceedings being commenced in the Gympie Magistrates Court for a domestic violence order (DVO). Eventually a DVO was made by consent against Price without Price making any admissions and no order was made against Ms Mitchell. Further Robert and Ms Mitchell are involved in other legal proceedings regarding the Property.
  9. [17]
    In paragraphs 13 and 14 of his affidavit, dated 9 July 2020, Robert comments on Maggie and Max. He describes the behaviour of Maggie as terrible, very disobedient and dominant. He says that Max was only a pup at the time and behaved well but was “learning of Maggie very quickly”.
  10. [18]
    Robert was cross examined by Ms Mitchell’s counsel where he conceded that he did not initially mention the August 2016 incident to Rogers. The counsel suggested to Robert that this incident did not happen, or it was a minor incident. Robert in response denied this was the case. Also, he stated that he did not consider the incident minor, but it was minor compared to the incident that occurred in January 2017.
  11. [19]
    Ms Mitchell’s counsel suggested that Rogers assisted Robert in the drafting of his statements and Robert’s evidence against Ms Mitchell was motivated by the fact that the parties were involved in the DVO legal proceedings in Gympie and the legal proceedings regarding the property. Robert in response refuted these suggestions and he stated that he was a man in his sixties and the complaints were as a result of a confrontation with Price and Ms Mitchell and his fear for his personal safety.
  12. [20]
    Evidence at the hearing was given that Price and Ms Mitchell have an interest in a Caltex service station near Gympie. Ms Mitchell’s counsel suggested to Robert that he was responsible for making a complaint to Caltex that “2 convicted felons” work at this service station. See Exhibit KJM – 3 attached to the affidavit of Ms Mitchell dated 25 August 2020 – Exhibit 1. The exhibit refers to an email where a “Melissa” of Customer Feedback at Caltex received a phone call from a person named “Robert” who made the allegations. This email was to J Bates of Caltex who provided a copy of the email to Ms Mitchell. In response Robert denied that he was the person who made the complaint. Further no other evidence was adduced at the hearing regarding this complaint.
  13. [21]
    I asked Robert about his tenure at the Property. In response Robert stated that he had lived at the Property for about eight years in harmony with Ms Mitchell and Price and the catalyst for the deterioration in relations between the parties was his complaint to the Council about the dog incidents. I asked Robert if he paid rent during his occupation on the Property. He responded that he did not and the reason that he did not was because he assisted in the purchase of the Property by providing the deposit for the purchase.
  14. [22]
    In giving evidence, Robert did concede that Max was a pup and was not the instigator or the main participant in the two incidents in November 2016 and January 2017. Further he conceded that he never saw Maggie and Max attack or show any aggression to Ms Mitchell’s children or any other members of the family.
  15. [23]
    I found Robert to be open and convincing in the giving of his evidence and he responded well to the cross examination by Ms Mitchell’s counsel where his credibility was brought into question by the counsel. Except for the evidence of Ms Mitchell, no evidence was called at the hearing by Ms Mitchell to refute Robert’s evidence. Further the way the events unfolded, the severe injuries to Joe from the January 2017 incident that were treated by the veterinarian and no evidence of any injuries to Maggie and Max tends to corroborate the evidence of Robert. It is also significant that Ms Mitchell did not witness the three incidents. I accept Robert’s evidence and I prefer his evidence to the evidence of Ms Mitchell. I will discuss Ms Mitchell’s evidence later.
  16. [24]
    Whilst it is now accepted by Ms Mitchell that Maggie and Max are declared regulated dangerous dogs pursuant to s 89 of the AM Act, I make the following findings in respect of the three incidents relating to Joe and these findings are relevant to challenging the making of the destruction order for Maggie and Max. I am satisfied that:
  1. (a)
    Maggie seriously attacked Joe in the three incidents as defined in s 89(7) of the AM Act thus causing bodily harm or grievous bodily harm to the neck and chest region of Joe as defined in Chapter 1 s 1 of the Criminal Code Act 1899 (Qld); and
  2. (b)
    Max seriously attacked Joe in the third incident as defined in s 89(7) of the AM Act thus causing bodily harm or grievous bodily harm to the groin region of Joe as defined in Chapter 1 s 1 of the Criminal Code Act 1899 (Qld); and
  3. (c)
    There is no evidence that Max caused any bodily harm or grievous bodily harm as defined in Chapter 1 s 1 of the Criminal Code Act 1899 (Qld) in the second attack on Joe; and
  4. (d)
    Maggie was wholly responsible for the first attack and was the instigator and Max was a participant in the second and third attacks on Joe. The evidence demonstrates that Max was following Maggie’s lead in the second and third attacks on Joe and that it was Maggie who continued to attack Joe after Robert intervened in the third attack; and
  5. (e)
    The attacks were unprovoked.

Alleged Attacks and Death of Boof

  1. [25]
    There is no dispute that on 5 July 2017 an incident occurred near Ms Mitchell’s property which resulted in the death of a five month old kelpie cross pup named Boof owned by Ms Lee Amanda Brand (Ms Brand). Ms Brand lives on a property at Tamaree, near Gympie. Ms Brand’s property backs onto to Ms Mitchell’s property. See lot 398 on Annexure 5. Before the incident on 5 July 2017 Ms Brand had not met Ms Mitchell and she was not familiar with Maggie or Max.
  2. [26]
    Ms Brand gave evidence that early on the morning, around dawn, of 5 July 2017 she awoke and went outside to feed her dogs when she noticed that her dog Boof was missing. She stated that her property is fenced with normal stock wire fencing and her dogs have access to the property from her house. After searching for Boof she noticed two dogs running along the fence line of her neighbour’s property. That is, lot 396. Ms Brand stated that they appeared to be Staffy cross breeds and she did not recognise the dogs. Ms Brand stated that there was a brown and white dog and a black dog and that the brown and white dog was barking and showing aggression whilst the black dog appeared to be hiding in the bushes.
  3. [27]
    Ms Brand stated that as it was dawn and foggy with low visibility, she drove down her driveway in her car and she saw the two dogs in her headlights running down the fence line and stop. It was at this point that she saw Boof lying on the ground motionless inside the neighbour’s property. She stated that she approached Boof and she could tell that Boof was dead. Ms Brand stated that the brown and white dog always remained close to Boof whereas the black dog retreated into the bushes. Ms Brand then contacted the Council and Mr Darren Sean O'Brien (O'Brien) of the Council arrived around 7am. By this stage Ms Brand was with other people.
  4. [28]
    O'Brien has provided a statement dated 5 July 2017 and annexed to this statement are photos of the body of Boof and the surrounding bush. O'Brien also gave evidence at the hearing and his body cam video footage was played at the hearing. O'Brien seized the dogs which were ultimately identified as Maggie and Max. O'Brien says that the brown and white dog (Maggie) stayed around three metres from Boof’s body whilst the black dog (Max) stayed some distance away in the bushes. O'Brien was able to seize the dogs without difficulty.
  5. [29]
    Later Ms Mitchell arrived, and O'Brien says that she was very emotional and when she spoke to O'Brien she apparently said, “to just take them and it has apparently happened before”. When Ms Mitchell gave evidence, she stated that she was very upset, and what she meant in making this statement was that the Council or Council officer Mr Dan Rogers wanted to take them.
  6. [30]
    There is no dispute that there no witnesses to the attack and subsequent death of Boof. Rogers deposes that he made some enquiries with some neighbours and two of the neighbours did hear a loud dog fight during the night.
  7. [31]
    Ms Mitchell has raised the fact that in the morning of 5 July 2017, when Maggie and Max were seized there was no evidence of blood on her dogs but there was blood on the body of Boof. See the colour photos attached to the statement of O'Brien dated 5 July 2017. I am of the view that it is difficult to draw any conclusions, one way or the other in regard to this issue, as it appears that some hours elapsed between the time the neighbours heard the noise of a dog fight and when the dogs were seized at approximately 7:30am on the morning of 5 July 2017. However, it is significant that there is no evidence that there were any injuries to Maggie or Max when they were seized.
  8. [32]
    Ms Mitchell has suggested that wild dogs may have been responsible for the attack on Boof. In her statement of truths filed in the Tribunal dated 16 January 2018 Ms Mitchell annexes some material about wild dogs in the Gympie area and a copy of an article from the Gympie Times dated 27 July 2017 regarding some wild dogs killing some sheep in the Tamaree area. No other evidence was presented to the Tribunal by Ms Mitchell regarding this issue.
  9. [33]
    Ms Mitchell’s counsel cross examined Ms Brand on the issue of wild dogs in the vicinity of Ms Mitchell’s property. Ms Brand said that she did not believe that wild dogs were a problem in the area and she had not seen any wild dogs. She did state that she could not discount that wild dogs may be in the area.
  10. [34]
    Ms Mitchell’s counsel cross examined Rogers regarding the issue of wild dogs in the area. Rogers gave evidence that he made enquiries with Mr Ben Curly (Curly), Manager Land Protection of the Council. There is an exchange of emails between Rogers and Curly on 31 January 2017 and 1 February 2017. See pages 4 and 5 of the Amended Affidavit of Rogers dated 10 July 2020. Ms Mitchell’s counsel suggested to Rogers that the emails do not clearly demonstrate that there were no wild dogs in the vicinity of Ms Mitchell’s property around 5 July 2017. Rogers responded to this suggestion by saying that he had discussions with Mr Curly and some of Ms Mitchell’s and Ms Brand’s neighbours who advised him that there was no indication that wild dogs were in the vicinity of Ms Mitchell’s property. I also note that Ms Brand corroborated this evidence.
  11. [35]
    Therefore, because Maggie and Max were and remained in close proximity to the body of Boof, I make the following findings in respect of the death of Boof. I am satisfied that:
  1. (a)
    No wild dogs were in the vicinity of Ms Brand’s property in or about 5 July 2017; and
  1. (b)
    Maggie and Max were responsible for the death of Boof.

Relevant Legislation and Law

  1. [36]
    Ms Mitchell now accepts that Maggie and Max are declared regulated dangerous dogs pursuant to s 89 of the AM Act. The Council has made the Decision that Maggie and Max should be destroyed pursuant to s 127 of the AM Act. Section 127 of the AM Act is:

127 Power to destroy seized regulated dog

  1. (1)
    This section applies if the dog is a regulated dog.
  1. (2)
    The authorised person may, without notice, immediately destroy the dog if—
  1. (a)
    the person reasonably believes the dog is dangerous and the person can not control it; or
  1. (b)
    an owner of the dog has asked the person to destroy it.
  1. (3)
    The person may destroy the dog 3 days after the seizure if—
  1. (a)
    the dog—
  1. (i)
    was not seized under section 125(1)(b)(i); and
  1. (ii)
    has no registered owner, or apparently has no registered owner; and
  1. (iii)
    is not the subject of a regulated dog declaration by the relevant local government; and
  1. (b)
    the person or the relevant local government does not know of anyone who owns, or is a responsible person for, the dog.
  1. (4)
    If subsection (3) does not apply, the person may make an order (a destruction order) stating the person proposes to destroy the dog 14 days after the order is served.
  1. (5)
    The destruction order must—
  1. (a)
    be served on—
  1. (i)
    the registered owner of the dog; or
  1. (ii)
    if the dog has no registered owner—any person who owns, or is a responsible person for, the dog; and
  1. (b)
    include or be accompanied by an information notice about the decision to give the destruction order.
  1. (6)
    If a destruction order is made for the dog, the person may destroy the dog 14 days after the order is served if no application for internal review has been made relating to the order.
  1. (7)
    If an application for internal review has been made against the order, the person may destroy the dog if—
  1. (a)
    the internal review is finally decided or is otherwise ended; and
  1. (b)
    no application for external review of the order has been made; and
  1. (c)
    the order is still in force.
  1. (8)
    If an application for external review of the order is made, the person may destroy the dog if—
  1. (a)
    the external review is finally decided or is otherwise ended; and
  1. (b)
    the order is still in force.
  1. [37]
    The correct test to apply regarding s 127 of the AM Act is concisely outlined in the matter of Cutbush v Scenic Rim Regional Council [2019] QCAT 80. In Cutbush Member Gordon also refers to and discusses other relevant precedents such as Thomas v Ipswich City Council [2015] QCATA 97, Bradshaw v Moreton Bay Regional Council [2018] QCATA 140 and Nguyen v Gold Coast City Animal Management [2017] QCATA 121. The paragraphs of Cutbush that apply to these proceedings are outlined:

Making destruction orders – the correct test to apply

[164]It was pointed out in Thomas v Ipswich City Council [2015] QCATA 97 that there is no guidance in the AM Act about how the discretion whether or not to destroy a dog should be applied. In those circumstances, the importance of ensuring that the legislative intent of the Act is applied when exercising that discretion was emphasised. The Appeal Tribunal identified that legislative intent as follows:-

[16] In the absence of any specific criteria, the legislative intent must be ascertained from the legislative scheme. Section 3 provides that the purposes of the AM Act include providing for effective management of regulated dogs.[68]Section 4 specifies how the purposes are primarily to be achieved. These means include imposing obligations on regulated dog owners; appointing officers to monitor compliance with the AM Act; and imposing obligations on some persons to ensure dogs do not attack or cause fear. Section 59 sets out that the purposes of ‘Chapter 4 Regulated Dogs’ include protecting the community from damage or injury, or risk of damage or injury, from regulated dogs;[69]ensuring that regulated dogs are not a risk to community health and safety;[70]and ensuring regulated dogs are kept in a way consistent with community expectations and the rights of individuals.[71]

[17] Section 97 requires an owner or person responsible for a declared dangerous dog to ensure that permit conditions as provided for in Schedule 1 are adhered to. The conditions include enclosure requirements; implantation with a PPID and wearing an identifying tag of a specified type; for a dangerous dog, muzzling and being effectively controlled if not at its registered address; and sign age. Section 125 sets out circumstances in which dogs can be seized by Council.[72]Under s 127, if a regulated dog cannot be controlled it may be immediately destroyed. It also provides for a destruction order to be made, as it was in Bruce’s case under s 127(4). We do not consider that the defences to the offence provisions assist.

[18] It is clear that the AM Act is primarily directed towards the effective management and responsible ownership of dogs and that the destruction of a dog is a ‘last resort.’ It is generally where the mechanisms in the Act for management fail, or are ineffective, that destruction arises. The essential question is whether the dog constitutes, or is likely to constitute, a threat to the safety of other animals or to people, by attacking them or causing fear, to the extent that the threat may only be satisfactorily dealt with by the destruction of the dog.

[165]Paragraphs [16] and [18] of the above passages in Thomaswere cited with approval inBradshaw v Moreton Bay Regional Council [2018] QCATA 139 (140).

[166]In Nguyen v Gold Coast City Council Animal Management [2017] QCATA 121 Senior Member Brown sitting in the Appeal Tribunal, said that he would pose the question slightly differently from that in Thomas:

[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.

[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, the purposes of Chapter 4 specifically, and how the Act states those purposes are to be achieved. As the Appeal Tribunal said in Thomas any decision must be made in the context of the legislative scheme, and specifically Chapter 4 of the AM Act, in which the protection of the community is clearly given a higher priority than individual rights of dog owners.

[footnotes omitted]

[167]The ‘last resort’ test and the ‘the threat posed by the dog can only satisfactorily be dealt with by its destruction’ test in Thomashave been cited in subsequent tribunal decisions. In some of them the tests have been referred to but not obviously applied in their bare form; in others, they have been applied directly. The ‘ability to control’ test in Nguyen has not been cited as far as I am aware.

[168]Overall the tribunal’s discretion must be exercised to achieve the correct and preferable decision on the merits, in a fair and just way, and in accordance with the statute concerned, which includes the objects of the statute. Whilst attempting to lay down some criteria to be applied in these cases may help to achieve consistency, the tests must be approached with caution. There is a danger that the tribunal may apply a test which it itself has devised, instead of applying the discretion given to it by the statute and in accordance with the statute.

Ms Mitchell

  1. [38]
    One of the main issues in dispute in these proceedings is the Council’s contention that Ms Mitchell is not a responsible owner and the Council cannot be confident that she will comply with relevant laws to ensure that her dogs are not a threat to the community or other dogs. The provisions of ss 3 and 4 of the AM Act set out the purposes of the AM Act and how those purposes are to be achieved. Chapter 4 of Part 1 of the AM Act relates to Regulated dogs. Sections 59(1) and (2) are:

59 Purpose of ch 4 and its achievement

  1. (1)
    The purposes of this chapter 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
  1. (b)
    ensure the dogs are—
  1. (i)
    not a risk to community health or safety; and
  1. (ii)
    controlled and kept in a way consistent with community expectations and the rights of individuals.
  1. (2)
    The purposes are to be achieved primarily by the following—
  1. (a)
    providing for local governments to declare dogs to be dangerous dogs, menacing dogs or restricted dogs;
  1. (b)
    providing for the compulsory desexing of declared dangerous dogs and restricted dogs;
  1. (c)
    providing for identification of dogs as regulated dogs;
  1. (d)
    providing for permits for restricted dogs;
  1. (e)
    imposing conditions on keeping, and requirements for the control of, regulated dogs;
  1. (f)
    allowing authorised persons to seize or destroy dogs in particular circumstances;
  1. (g)
    providing for local governments to administer, and be responsible for, the matters mentioned in paragraphs (a) to (f).
  1. [39]
    The overall aim of the above provisions of the AM Act is to promote responsible ownership of dogs and to ensure that members of the community and other dogs are not at risk from dangerous dogs. There is also a requirement on local authorities to ensure that there is compliance by the public with all relevant laws.
  2. [40]
    Ms Mitchell gave oral evidence and stated that she is very attached to her dogs, her dogs are part of her family and they are gentle and loving to her children. In evidence she referred to her statement (Exhibit 4) and her affidavit dated 25 August 2020 (Exhibit 1). In her evidence when she was examined by her counsel, Ms Mitchell stated that:
  1. (a)
    She now accepts that the Council has the necessary legal authority to declare dogs dangerous and take steps to ensure compliance with relevant laws by dog owners. Ms Mitchell stated that she had previously undertaken her own legal research and now she has a new lawyer who has provided her with proper legal advice; and
  1. (b)
    She is a law-abiding citizen with no criminal convictions, and she is not the subject of any adverse court orders; and
  2. (c)
    If the dogs are released back to her, she would erect an enclosure for the dogs that was fully compliant with relevant laws; and
  3. (d)
    Maggie was desexed whilst impounded and she would have Max desexed. She would also arrange obedience training for the dogs with a person she knows who trains police dogs; and
  4. (e)
    She would arrange for the dogs to be registered and she has the financial means to pay the cost of complying with all relevant laws; and
  5. (f)
    The reason that she has not undertaken any of the above legal requirements was because there is uncertainty regarding the return of the dogs to her. She did not want to expend any funds if the dogs were to be destroyed.
  1. [41]
    Ms Mitchell stated that she had not responded to the various notices from the Council in the early stages, that is January to March 2017, because she assumed her then lawyer, Mr Chris Anderson of Jeffery Cuddihy & Joyce, Lawyers, was taking care of the Council matter on her behalf. She stated that she was very pre-occupied with the DVO legal proceedings in the Gympie Magistrates Court commenced by Robert. Exhibit 4 is a copy of page 1 of an account for work done by Mr Anderson on behalf of Ms Mitchell. Ms Mitchell says this account shows very few details of work undertaken by Mr Anderson regarding the Council matter until March 2017.
  2. [42]
    Ms Mitchell maintains that she was not aware of the notices for the proposed dangerous dog declarations and the dangerous dog declarations sent by registered post to Ms Mitchell’s post office box from the Council in February 2017. She says that the first she was aware of the notices was around the time when Rogers spoke to Price by telephone in early March 2017. Ms Mitchell was cross examined by Mr Sproule, for the Council. In this cross-examination Ms Mitchell did accept that it was her signature on the registered mail receipts of the two notices, but she maintains that she did not receive them. The notices were returned to the Council showing that they were not delivered. How this occurred is uncertain.
  3. [43]
    Ms Mitchell also disputes Robert’s version of how events unfolded regarding the three attacks on Joe. Ms Mitchell maintains that Robert’s allegations are motivated by the legal dispute over the Property.
  4. [44]
    Ms Mitchell accepts that she was taken into custody for a short time at the Gympie Magistrates Court during the DVO legal proceedings commenced by Robert. Ms Mitchell maintains that she was very emotional at the time and she was not aware of court protocol that she could not speak during the proceedings. Ms Mitchell states that she was released after a short time and apologised to the Magistrate. Eventually no orders were made against her and a DVO was made against Price without Price making any admissions.
  5. [45]
    Ms Mitchell was also cross examined about an incident on 15 September 2017 at the RSPCA where Maggie and Max were impounded. Ms Mitchell conceded that she attempted to collect her dogs and she said that the Council could not lawfully seize the dogs and the police were called. Ms Mitchell also conceded that she accused the police of colluding with the Council. Ms Mitchell says that she was very upset and emotional at the time.

Rogers

  1. [46]
    Rogers was the investigator and main witness for the Council. He filed an affidavit dated 10 July 2020 with various exhibits attached. In paragraphs 61 to 74 of the affidavit Rogers outlined the service of compliance notices pursuant to s 132 of the AM Act regarding the noncompliant enclosure for Maggie and Max and requiring the registration of Maggie and Max. Because there was no evidence of compliance or response to these notices received by Council, Rogers issued Ms Mitchell with a Penalty Infringement Notice (PIN) and a fine. There has been no attempt by Ms Mitchell to address these notices or pay the fine. The service of the compliance notices and the issue of the PIN occurred in early July 2017.
  2. [47]
    Rogers also outlined his steps and attempts to serve notices on Ms Mitchell, attempts to make contact with Ms Mitchell, his contact with Ms Mitchell’s lawyer, Mr Anderson, and his attempts to resolve issues with Ms Mitchell after the dogs were seized. Rogers was cross examined by Ms Mitchell regarding these issues. It was suggested to Mr Rogers that he did not provide sufficient time to allow Ms Mitchell to respond to the notices, he had been hasty in taking action against Ms Mitchell and somehow took advantage of Ms Mitchell when he was conducting interviews with her. Rogers rejected these suggestions.
  3. [48]
    In cross examination by Ms Mitchell’s counsel, it was suggested to Rogers that it was very unusual to obtain evidence from Robert to ascertain if Ms Mitchell had satisfied the compliance notice regarding the enclosure for the dogs. It was further suggested to Rogers that it was unfair of the Council to reject a request from Ms Mitchell to challenge the destruction notice for Maggie and Max because her request was out of time rather than on substantive grounds. Rogers rejected these suggestions and stated that he did everything possible to interact with Ms Mitchell so she could have the dogs returned to her. It is significant that Rogers was making these attempts even though the dogs were involved in the death of Boof.
  4. [49]
    It was also suggested to Rogers whilst being cross examined that his investigations and the actions he took against Ms Mitchell were motivated by the report Ms Mitchell made against Rogers to the Council. Rogers rejected this suggestion, and no evidence was offered to support this suggestion.
  5. [50]
    I found Rogers to be a very convincing witness and it is my view that Rogers and the Council have acted appropriately in the prosecution of the complaints against Ms Mitchell, the subject of these proceedings. I accept the evidence of Rogers and I preferred his evidence to the evidence of Ms Mitchell.
  6. [51]
    At the conclusion of his evidence, I asked Rogers if the Council would consider returning Maggie and Max to Ms Mitchell if she fully complied with all legal requirements regarding registering, desexing and housing the dogs. He responded that it was not up to him but the chief executive officer. On this basis on 6 November 2020 pursuant to s 23 of the QCAT Act I invited the Council to reconsider the Decision. At the time of making the order I suggested to the parties' representatives that the precedent outlined in Cutbush may be relevant in their considerations and responses to this invitation.
  7. [52]
    The parties entered into correspondence and negotiations. However, no agreement was reached, and the Council confirmed the Decision on 10 December 2020. Both parties have filed material and submissions regarding these negotiations. Two of the issues raised by the Council were the payment of fees amounting to $17,352.82 for care of the dogs whilst they were impounded, and that the dogs should be assessed by a dog behaviour expert before they are released. The Council also submitted that there was no evidence of any compliance of the proposed enclosure by Ms Mitchell and the dogs had not been registered. The issue of the payment of any impoundment fees is not a matter that I can take into account in the review of the Decision. However, the issues of compliance, the state of health of the dogs and how they may behave if they are released to Ms Mitchell are relevant in this review.

Findings and Decision

  1. [53]
    I did not find Ms Mitchell a convincing witness and her evidence was not corroborated by Price or her lawyer, Mr Anderson. I preferred the evidence of Robert and Rogers. Even if Ms Mitchell was not aware of the notices until early March 2017 and her lawyer did nothing in relation to the notices there are many other factors which lead me to the conclusion that there must be some doubt regarding Ms Mitchell’s commitment to complying with all relevant laws in the future and that confirming the order for the destruction of the dogs by the Council is the proper and preferable decision.
  2. [54]
    These factors are:
  1. (a)
    Maggie and Max are declared regulated dangerous dogs pursuant to s 89 of the AM Act. This is a formal declaration. Notwithstanding this formal declaration Ms Mitchell must or should have been aware that the dogs, especially Maggie, are very dangerous and aggressive dogs and a danger to other dogs. While I accept that there is no evidence that the dogs are aggressive or a danger to people, it is extremely concerning that Ms Mitchell still does not accept that her dogs are responsible for the very serious attacks on Joe and the death of Boof. Ms Mitchell maintains this position even though she did not witness any of the attacks and despite evidence that her dogs were responsible for the attacks; and
  1. (b)
    There is evidence that the dogs escaped from their enclosure in regard to the attacks on Joe in late 2016 and early 2017. Further, I accept that Robert made complaints to Price and Ms Mitchell about the dogs’ aggressive nature and their responses were very dismissive. Also, by early March to July 2017 Ms Mitchell was aware that the Council was taking formal action regarding the attacks on Joe. Notwithstanding these complaints and the scrutiny by the Council the dogs again escaped on or about 5 July 2017 and attacked and killed Boof; and
  2. (c)
    The attacks, the injuries to Joe and the death of Boof caused pain and suffering to the owners. There is no evidence in these proceedings that Ms Mitchell has shown any remorse or empathy to these owners. Further Ms Mitchell has never offered to compensate Robert for the veterinarian’s costs for the treatment of Joe’s injuries occasioned on 23 January 2017; and
  3. (d)
    Ms Mitchell was aware from early July 2017 that she had to take positive action to have the dogs released back into her care. Rogers outlines details of his communications with Ms Mitchell and Price from 5 July 2017 to late August 2017 in paragraphs 81 to 106 of his affidavit dated 10 July 2020. I am of the view that the Council was justified in its refusal to entertain an internal review of the Decision on 4 September 2017. Whilst Ms Mitchell says that the delay in dealing with these notices and matters was because she was under great stress at the time because of the DVO proceedings, Ms Mitchell still had opportunities after the refusal to review the Decision to interact with the Council. For example, a “Trespass Infringement Notice” signed by Ms Mitchell was served on the Council on 15 September 2017; and
  4. (e)
    Ms Mitchell now says that she accepts the authority of the Council to regulate and manage dogs and says that if the dogs are released into her care, she will register the dogs, desex Max, erect a legal enclosure for the dogs and fully comply with all laws and regulations in the future. In fact, in the recent negotiations with the Council, Ms Mitchell has undertaken to take steps to desex Max and erect a compliant enclosure for the dogs within seven days of the release of the dogs to her. Ms Mitchell says that she has not undertaken any steps because she does not wish to expend any money if the Decision is confirmed as a result of these proceedings. However, Ms Mitchell has not demonstrated this is the case. For example, Ms Mitchell has not satisfied the PIN, nor taken any positive steps to erect or plan for the erection of a legal enclosure or retain or make any arrangements with a veterinarian for the desexing of Max. Ms Mitchell did not take any of these steps even after I invited the Council to reconsider the Decision; and
  5. (f)
    The dogs are dangerous dogs, weighing some 25 kilograms, and they were seized and impounded in July 2017, some three and a half years ago. Ms Mitchell gave evidence that she has never visited the dogs as she finds it too distressing. No evidence has been submitted to the Tribunal about the current health of the dogs, except Maggie has been desexed. Also, it is probable that Maggie was the principal instigator and aggressor of all the attacks on Joe and Boof and Max was the follower. However, no assessments have been undertaken by an appropriately qualified expert as to whether or not the dogs should be released from impoundment or whether their behaviour can be modified through appropriate training. Ms Mitchell gave evidence that she has made contact with a dog trainer who previously trained police dogs to undertake obedience training for the dogs if the dogs are released to her. I do not believe this undertaking is sufficient to overcome the public interest obligations contained in the AM Act on the Council to ensure that the dogs do not pose a danger to the public or other dogs.
  1. [55]
    As outlined in Cutbush the essential question in considering a review of the making of a destruction order under s 127 of the AM Act is whether the dogs can be controlled taking into consideration the threat, or likely threat, of the dogs attacking or causing fear to other dogs or people. This question requires a consideration of a number of factors. These factors include the history of the behaviour of the dogs, the current behaviour of the dogs and whether their behaviour can be modified through appropriate training, the security arrangements for housing the dogs, the risk the dogs pose to the community and other dogs outside their enclosure, compliance of the owner regarding relevant laws and permit conditions, whether the owner demonstrates insight into the dogs’ behaviour and the owner has acted appropriately to mitigate any risk the dogs pose to other animals or people and the rights of the owners.
  2. [56]
    The Council must comply with the provisions of the AM Act and the public interest obligations contained in these provisions. After reviewing the evidence and laws relevant to these proceedings and taking into account the above findings and factors I am of the view that the proper and preferable decision is to confirm the Decision.
  3. [57]
    The order is as follows:
  1. The decision of the Gympie Regional Council made on 22 August 2017 to destroy Maggie and Max is confirmed.
Close

Editorial Notes

  • Published Case Name:

    Mitchell v Gympie Regional Council

  • Shortened Case Name:

    Mitchell v Gympie Regional Council

  • MNC:

    [2021] QCAT 40

  • Court:

    QCAT

  • Judge(s):

    Member Poteri

  • Date:

    29 Jan 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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Cutbush v Scenic Rim Regional Council [2019] QCAT 80
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Nguyen v Gold Coast City Council Animal Management [2017] QCATA 121
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Cases Citing

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Mitchell v Gympie Regional Council [2022] QCATA 407 citations
1

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