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  4. Lee v Council of the City of Gold Coast - [2022] QCAT 12

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Lee v Council of the City of Gold Coast[2022] QCAT 12

Lee v Council of the City of Gold Coast[2022] QCAT 12

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Lee v Council of the City of Gold Coast [2022] QCAT 12

PARTIES:

ELANA LEE

(applicant)

V

COUNCIL OF THE city OF GOLD COAST

(respondent)

APPLICATION NO/S:

GAR377-20

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

11 January 2022

DECISION OF:

Member Lember

ORDERS:

The decision of the Council of the City of Gold Coast dated 9 September 2020 to declare “Thunda” and “Jazz” regulated dangerous dogs is affirmed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – whether serious attack occurred – whether grounds for dangerous dog declaration

ANIMALS – VARIOUS STATUTORY PROVISIONS – REGULATION OF COMPANION ANIMALS – OTHER MATTERS – where dogs broke lead – whether attack on other dogs serious - whether grounds for declaration of dangerous dog

Animal Management (Cats and Dogs) Act 2008 (Qld), s 3, s 4, s 20, s 59, s 60, s 89, s 188

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

Brake v. Gold Coast City Council [2015] QCAT 52

Hermanussen v. Brisbane City Council [2012] QCAT 710

Lee v. Brisbane City Council [2012] QCA 284

McKenzie v Brisbane City Council [2016] QCAT 267

APPEARANCES &

REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

What is the application about?

  1. [1]
    Ms Lee was the registered owner of two desexed male great danes; “Thunda”, whose markings are variously described as grey, brown or blue and white, and “Jazz”, whose markings were black and white.  Sadly, Jazz is said to have passed away on 1 April 2021.[1]
  2. [2]
    Following an incident on 20 April 2020 – when the dogs are alleged to have attacked two other dogs causing injury to the dog and to their owners who intervened – both Thunda and Jazz were declared dangerous dogs by the respondent Council on 18 May 2020 (“the decision”).[2] 
  3. [3]
    The decision was decision that was confirmed upon internal review on 9 September 2020 and on 2 October 2020 Ms Lee applied to the tribunal for a review of Council’s decision to declare Thunda and Jazz as dangerous dogs.
  4. [4]
    The decision was stayed on 5 January 2021 pending the outcome of these proceedings. 
  5. [5]
    The material relied upon in making this decision on the papers comprises:
    1. (a)
      Application for review filed 2 October 2020;
    2. (b)
      SOR filed by Council on 27 January 2021 in accordance with section 21(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”) (“the SOR”), which includes witness statements;
    3. (c)
      Statement of Ms Lee dated 26 October 2020;
    4. (d)
      Statement of Hudson Lee dated 26 October 2020; and
    5. (e)
      Submissions of Ms Lee filed 9 July 2021.

What is the role of the tribunal?

  1. [6]
    The tribunal has jurisdiction to deal with matters if empowered to do so by the QCAT Act or by an enabling Act.[3]
  2. [7]
    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”.[4] 
  3. [8]
    Chapter 8, Part 1 of the AM Act permits a dog owner to seek an internal review of a decision to declare a dog dangerous 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.
  4. [9]
    The role of the tribunal in such an application is to review the circumstances afresh and to produce the correct and preferable decision.[5]
  5. [10]
    The role of the Council is to assist the tribunal in making that decision,[6] rather than to take an adversarial role or to defend the decision under review.  In undertaking that role, Council filed its SOR but otherwise, and somewhat unusually, has barely participated in these proceedings in that it did not:
    1. (a)
      file response material or submissions on the stay application as directed;
    2. (b)
      attend the compulsory conference as directed;
    3. (c)
      provide a reasonable excuse for their non-attendance at the compulsory conference as directed; or
    4. (d)
      file submissions in relation to a final decision on the application as directed.

The circumstances under which a dog may be declared dangerous

  1. [11]
    Under section 89 of the AM Act, a local government may, among other things, declare a particular dog to be dangerous, or to be menacing.
  2. [12]
    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 another animal; or
    2. (b)
      may, in the opinion of an authorised person having regard to the way the dog has behaved towards a person or another animal, seriously attack, or act in a way that causes fear to, the person or animal.[7]
  3. [13]
    A menacing dog declaration may be made for a dog only if a ground mentioned above exists for the dog, except that the attack was not serious.[8]
  4. [14]
    “Seriously attack” is defined to mean “attack in a way causing bodily harm, grievous bodily harm or death”.[9]
  5. [15]
    The power to regulate a dog is discretionary[10] and even where an attack has occurred, the circumstances of each matter must be considered.[11]
  6. [16]
    It is a question of fact for the tribunal whether the subject dog/s have ‘attacked’ or ‘seriously attacked’.[12]  The Court of Appeal has ruled that as a matter of law, nothing precludes a finding of attack even where the behaviour of the dog is a response to aggression from its victim.[13]  Therefore, a finding of an attack may be made even if a dog was acting protectively.[14]

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

  1. [17]
    It is not disputed that in the afternoon of 20 April 2020, Mr and Mrs Nicholls were walking their dogs, ‘Maci’   and ‘Peppa’ – both   border collies – when Thunda and Jazz broke their lead and made contact with Mr and Mrs Nicholls and their dogs.   
  2. [18]
    The latter part of the incident was witnessed by Mr Brazel and Ms Tonkin, who each live in the street where the incident occurred and who each gave statements to Council.

Ms Lee’s evidence regarding the incident

  1. [19]
    On 27 April 2020 Ms Lee made a reasonably contemporaneous statement[15] to Council in which she said that:
    1. (a)
      She and her ten-year-old son, Hudson, were walking Thunda and Jazz on leads when they saw a man and a woman (Mr and Mrs Nicholls) walking their two dogs (Maci and Peppa);
    2. (b)
      Thunda and Jazz noticed the approaching dogs and Ms Lee went to “check” them by pulling at their leads;
    3. (c)
      Ms Lee held a stick, as did her son, to counter cob-webs on their walk;
    4. (d)
      Thunda ignored her check, so she tapped his back with the stick and told him to calm down;
    5. (e)
      Jazz – usually the more placid of the two - then pulled towards the other dogs and Thunda followed;
    6. (f)
      As Thunda and Jazz ran at the other dogs, Ms Lee found that she could not pull them back and she then tripped on the road, losing her grip on the leads;
    7. (g)
      When she stood up, dazed, she saw her dogs standing over the other two dogs, growling at them;
    8. (h)
      Mrs Nicholls screamed for help as Ms Lee approached the dogs;
    9. (i)
      Mr and Mrs Nicholls were trying to pull the dogs apart;
    10. (j)
      Ms Lee was able to grab Thunda’s lead and to pull him back, and Jazz then followed;
    11. (k)
      Ms Lee did not observe any injuries on Maci or Peppa at that time;
    12. (l)
      Jazz was shaking his head as he pulled back to shake  collar off and her son then grabbed him by the scruff of his neck;
    13. (m)
      Ms Lee said to Mr Nicholls words to the effect of:

I’m sorry I have no idea what came over them. It is like they just had something in for your dogs,  I don’t know what they were doing.  I can’t believe it, they have not done this before.

  1. (n)
    Ms Lee gave Mr Nicholls her details and offered to pay the costs of vet care for any injuries; and
  2. (o)
    Ms Lee then noticed that Thunda’s ear and the top of his eye were both bleeding and she said to him “you deserve it, what the hell is wrong with you?” and when Mr Nicholls queried that, she said, “they deserve much worse than this”.
  1. [20]
    Ms Lee also said that her son had told her at the time that he was crouching and could see all dogs clearly during the incident through the legs of the adults.  She says he said that:
    1. (a)
      Jazz was not “open mouth biting”, but Thunda was, but he did not think Thunda was biting hard;
    2. (b)
      Jazz was being more aggressive, but he was nuzzling on of the dogs on the ground with his mouth but with his teeth closed and growling;
    3. (c)
      he observed Thunda open mouth biting but not biting hard, more like when Thunda plays with a soft toy, where he opens and shuts his mouth over the toy; and
    4. (d)
      Jazz was nuzzling but with his teeth closed and growling, like when he is “de-fleaing” Thunda.
  2. [21]
    Ms Lee also said that as there were puncture marks on the dogs and her son only saw Thunda open his mouth, the puncture marks “were obviously from Thunda”.  Therefore, in her earliest version of events Ms Lee said that whilst Jazz was the aggressor, any bites came from and puncture injuries to the other dogs were caused by Thunda.
  3. [22]
    Ms Lee exchanged text messages with Mr Nicholls on the evening of 20 April 2020 in which the following was said:

[Mr Nicholls]:  We have just returned from the vet. Maci is in a bad way from the mauling by your dogs and is booked in for multiple surgeries first thing tomorrow morning. Both dogs are sedated and have begun antibiotics tonight and the vet has advised Peppa and Maci are both very battered and bruised from your dogs attacking them. I have been to the doctor as your dog bit me and I have a puncture wound for which I've had tetanus and am on antibiotics. My wife is booked for the doctor tomorrow as she has wound on her leg from where your dog dragged her along the road. We will be in contact after we know more about the vet expenses.[16]

[Ms Lee]: I'm sorry about your dogs. Our dogs have never done anything like that before and my son and I are both in shock. As stated I will meet the vet expenses and will do so upon provision of the detailed vet report. I'm sorry if you and your wife have wounds from pulling the dogs apart but I am a bit taken aback that you have said your wife was quote dragged along the road and quote as that's not right.[17]

  1. [23]
    Hudson Lee  prepared a statement on 26 October 2020 with the assistance of Ms Derek, solicitor, who stated that she had read out and clarified the statement with the child and prepared the statement with his instructions, and in his words, save for grammatical amendments.
  2. [24]
    Hudson says, relevantly:

When my dogs first saw the other dogs my mum pulled their lead and said “aaah” to them in a loud voice. Thunda started jumping and then I saw my mum hit him on his back with her stick and yell at him again. He then stopped, but then Jazz all of a sudden pulled from her and then Thunda followed him.

They were stretching the lead right out and my mum was having trouble holding it. My dogs went up to the other dogs and stood in front of them growling. The other dogs growled straight back at our dogs. Then with all that, all the dogs just started growling and snarling at each other and the other dog that was more brown started snapping at Thunda and then all of a sudden Jazz then went at that dog and pushed that dog to the ground with his face, but he did not open his mouth.  He was pushing at the dog that had more brown into the ground at its side. He did not look like he was opening his mouth at all, he was nuzzling the other dog like he does to Thunda when he nibbles at his side, which me and my mum always say that he is “de-fleaing”.  Jazz did this to the other more brown dog, but was pushing quite hard and shaking his head whilst he did it. Jazz kept doing this until the more white dog started snarling at him and then he went to do the same thing to the more white dog, but was not as hard. He definitely did not at any time open his mouth where it looks like at all he had bit either of the dogs.

Thunda I did see open and shut his mouth but he did not look like he was doing it hard, just opening and closing his mouth like he does to his soft toys. But he did yelp at one point and I saw that the brown dog was biting at him to his face and ear and I saw that his ear was bleeding straight away. The other dog was trying to bite at our dogs over the top. Thunda then reacted a bit aggressive and he may have bitten the brown dog a couple of times at that point. The dog that had more white was growling over the more brown dog.

  1. [25]
    Ms Lee paid all vet bills incurred by the Nicholls and undertook to Council not to walk the dogs together again so that they could not overpower her.
  2. [26]
    Her closing remarks in the statement of 27 April 2020 are that:

I am very shocked and feel terrible for the other dogs and their owners. I have no idea what came over my dogs. All I can say is they are animals and animals unfortunately sometimes can be unpredictable.  

  1. [27]
    In her subsequent statement made 26 October 2020, attached to the application; for review Ms Lee says:

Up until the incident I have always been able to control my dogs with checks.  This training was not only for the dogs, but also focused on teaching me as an owner why dogs act or react the way they do.  The incident that occurred that day I accept resulted from Jazz reacting and Thunda following, and I was not prepared for it and failed to check and correct Jazz in time.

  1. [28]
    On 9 July 2021 Ms Lee said the following, seemingly departing significantly from her earlier statements:

I still deny that there is satisfactory evidence to determine that my dogs “attacked” the other dogs. They did approach, but I deny that they attacked… The mere approaching of a dog is not enough justification to state that they attacked or caused fear.  Dogs approach other dogs all the time and the mere size of my dogs in itself is not proper justification that by merely approaching they caused fear, that would be discrimination upon my dogs due to their size.[18]

There was no attack by my dogs, Thunda was attacked by one of the other dogs and Jazz reacted to that to protect Thunda by pushing that dog down to the ground with his face, muzzling him with the front of his teeth, but did not open his mouth.  Thunda and the other dog then reacted to each other Thunda had been bitten a number of times on his face and to his ear the other two dogs were considerably smaller in size to my dogs so it is inevitable that my dogs would always have received less injuries.

There is no independent evidence that my dogs attacked their dogs.  This is simply not true.  It was a scuffle between four dogs and the other dogs were aggressive.  When it ended neither of the other dogs showed any signs of injury.  As the injuries came out after it meant that it took time for them to bleed which meant that the injuries must have just occurred at the end of the scuffle.  

If my dogs had gone straight in and attacked there would have been blood on the dogs well and truly by the time it ended.

It is most likely that the owner caused the significant injuries to his dog.

The other owners have over embellished what actually occurred.  Neither of the independent witnesses corroborate their nonsense. Even the other owners at the end of the event did not know what had occurred which is clear from our discussion afterward where Simon indicated they could not see any injuries on their dogs at first instance.  He, just as I were confused as to what just happened.

I confirmed straight away that I would fund the cost if there were injuries.  I did so because it was the right thing to do, not because my dogs attacked their dogs, but because my dogs should not have pulled to approach their dogs and because of the size difference in the dogs, I accept that injury wise my dogs would have less injuries.   I am still of the view that the severity of the injuries to the other dogs were caused unfortunately by the owner Simon by ripping back at his dogs

Mr and Mrs Nicholls

  1. [29]
    Mr Nicholls gave a statement[19] to Council officers on 21 April 2020 which included the following information:
    1. (a)
      Ms Lee was walking her dogs on a single split lead and was approximately twenty metres and downhill from where Mr and Mrs Nicholls were walking their dogs on the opposite side of the road;
    2. (b)
      One of the dogs lunged and pulled the lead, in response to which Ms Lee hit it with a stick, but the stick broke;
    3. (c)
      Shortly after, both dogs lunged and pulled at the lead and Ms Lee then struggled to maintain control of them;
    4. (d)
      Both dogs broke free and ran towards the Nicholls “in an aggressive manner, barking, snarling and growling” and “ferociously started to attack our dogs”;
    5. (e)
      Mr Nicholls screamed at Ms Lee to “get your dogs off” and Mrs Nicholls screamed for help;
    6. (f)
      Mrs Nicholls ended up on her back and dragged a little, and Mr Nicholls also ended up on his back as they tried to separate the dogs;
    7. (g)
      Mr Nicholls tried to get his hands under the collar of one of the attacking dogs but was not able to, the attacking dog then turned and bit his left hand;
    8. (h)
      Mr Nicholls tried punching and kicking the dogs to get them off but could not;
    9. (i)
      Both dogs were “attacking and mauling” but the black/white dog was the more aggressive of the two and had Maci in his mouth “throwing her around like a rag doll”;
    10. (j)
      Maci was yelping and retaliating and biting the black and white dog but could not free herself; and
    11. (k)
      Eventually Ms Tonkin and Ms Lee were able to pull the dog free while Mr Nicholls was punching and kicking it and they were given refuge in Ms Tonkin’s home.
  2. [30]
    Mrs Nicholls gave a statement[20] to Council on 21 April 2020 that essentially mirrored that of Mr Nicholls and mentioned that “Simon tried to get his hands under one of the attacking dog’s collar” and that “both dogs were viciously attacking” and “the second offending dog was also attacking and mauling”.
  3. [31]
    Both Mr and Mrs Nicholls described the attack as “unprovoked, vicious and brutal” and stated that Ms Lee was “powerless to stop it”. 

The independent witnesses

  1. [32]
    Mr Brazel did not witness the start of the incident, only coming out of his home when he “heard screams”.   According to his statement[21] given to Council 22 April 2020:
    1. (a)
      As he exited his property, he saw a “ball of dogs”;
    2. (b)
      “The large dogs were attack and had one of the smaller dogs in its mouth”;
    3. (c)
      As he approached the attack one of the dogs had already been separated and the other one was still attacking;
    4. (d)
      They managed to separate the remaining dog; and
    5. (e)
      He observed that Mr Nicholls had been bitten. 
  2. [33]
    Ms Tonkin did not witness the start of the incident either, again only coming out when she heard a yelp and yelling.  According to her statement[22] given to Council on 22 April 2020:
    1. (a)
      Once outside she sighted the black/white great dane “latched onto” a border collie and “the people involved were trying to separate all dogs”;
    2. (b)
      The brown great dane “wasn’t attacking” and was standing with Ms Lee and her son when Ms Tonkin when outside;
    3. (c)
      She assisted Ms Lee by pull on the “offending dogs” collar as the border collie lifted its rear leg and kicked the great dane in the snout, with the overall effect that the great dane pulled from its collar but walked a few steps away from the incident;
    4. (d)
      Ms Tonkin then ushered Mr and Mrs Nicholls and their dogs into her home while the black dog was still off lead; and
    5. (e)
      She saw that one of the border collies was injured.

Was there a serious attack or did the dogs otherwise cause fear to another person or animal?

  1. [34]
    Council produced in its SOR the following evidence of harm caused in the attack:
    1. (a)
      According to his statement and medical certificate dated 21 April 2020[23], Mr Nicholls suffered a dog bite with soft tissue injury to his left wrist, small laceration left wrist and left palm, in addition to being emotionally shaken by the incident.  He also fell down when trying to separate the dogs and suffered soft tissue contusion to his buttocks.
    2. (b)
      According to her statement and medical certificate dated 21 April 2020[24], Mrs Nicholls suffered a contusion of the nose, soft tissue injury to her neck and wrists, bruising to her elbows and right calf and a graze to the left calf, in addition to being emotionally shaken.
    3. (c)
      According to veterinary records[25] Maci suffered deep puncture wounds to her chest and right forelimb, punctures to her shoulder and flank, fat and tissue damage and haemorrhage and severe bruising and was observed to be suffering shock and pain, exacerbating an existing anxiety condition.   Maci was treated with pain relief and antibiotics, and her wound was closed with staples for a day before she underwent surgery the following day.
    4. (d)
      According to veterinary records[26] Peppa was bruised and suffered trauma.  When she was presented for examination the day following the incident, Mrs Nicholls reported to the vet that Peppa had been vomiting all day and hadn’t eaten any food.  Upon examination the vet observed that she showed pain in her abdomen and back and determined that the likely cause of the nausea was shock and pain.  Peppa was treated with pain relief and anti-nausea medication.
  2. [35]
    Photographs at pages 82-90 of the SOR depict the injuries caused to Mrs Nicholls, Mr Nicholls and to Maci and Peppa and support the medical evidence tendered.
  3. [36]
    Ms Lee experienced pain in her back and neck after the incident, in addition to the injuries she suffered when she fell as the dogs pulled away from their lead.   She also says that Thunda was inflicted with injuries to his face and ear from dog bites during the incident.
  4. [37]
    With respect to Ms Lee, it is a nonsense to suggest, as she does in her 9 July 2021 statement that no attack occurred and that injuries were not suffered or, if they were, Mr Nicholls was responsible for causing them by pulling at his dogs.  
  5. [38]
    There is no reason to dispute the medical evidence of treating doctors and veterinarians which is clearly of extensive puncture marks consistent with dog bites.   Hudson Lee said that Thunda was biting, and that Jazz was “nuzzling” and shaking his head.
  6. [39]
    I accept the medical evidence and that Mr and Mrs Nicholl, Mica and Peppa suffered injuries, pain and trauma as a consequence of the incident.
  7. [40]
    I am satisfied that the injuries suffered by Mr and Mrs Nicholls and by Mica and Peppa were of the severity that a serious attack – one causing bodily harm - occurred within the definition of section 89(7) of the AM Act.

Were Thunda and Jazz involved in the attack?

  1. [41]
    Ms Lee submitted with her application that there is no evidence to support an identical classification of both dogs, because they acted differently.  She notes that the Nicholls and the witnesses informed Council officers that they were concerned about the “black one” (Jazz).  She notes however that her evidence, and that of her son, who she says, “had the clearest view of all persons”, establishes that Jazz did not open his mouth during the incident.   
  2. [42]
    Ms Lee says that neither Mr Brazel not Ms Tonkin saw the start of the incident (this is true) and she accuses the Nicholls of embellishing the truth.
  3. [43]
    Although the language used by Mr and Mrs Nicholls in their statements does appear to be somewhat exaggerated or embellished, perhaps simply by emotion, the earliest evidence of Ms Lee and Hudson Lee also support a conclusion, and I find that, a serious attack involving dog bites occurred and that Thunda and Jazz were each responsible for the attack.   The following considerations support this conclusion:
    1. (a)
      Ms Lee and Hudson Lee both said their dogs became aggressive and reacted at first sight of Maci and Peppa, some twenty metres away.    Ms Lee attempted to check the dogs, hitting Jazz with a stick, at that point.
    2. (b)
      Thunda and Jazz ran at the other dogs, pulling away with such strength that Ms Lee lost grip of the lead and her footing.   This does not indicate a curious approach typical of socialising dogs as Ms Lee later suggested.
    3. (c)
      Thunda and Jazz stood over the other dogs, growling.    Again, this is not consistent with a non-aggressive social approach. 
    4. (d)
      Hudson Lee, who says he had the best view of the incident by crouching, saw Thunda bite and saw Jazz making a biting and shaking action that he described as nuzzling before Jazz lost his collar.  This is more consistent with a bite and aggressive shaking than nuzzling or “de-fleaing” and does not support Ms Lee’s suggestion that the shaking observed was simply to throw off a collar.
    5. (e)
      After the incident Ms Lee admits that she accepted fault and offered to pay the vet bills and admits she said that her dogs “just had something in for” Maci and Peppa, and said they deserved punishment.   This is consistent with an attack having occurred at the instigation of Thunda and Jazz as opposed to accidental injuries from a social approach.   
    6. (f)
      When text messages were exchanged the evening of the incident and Mr Nicholls made certain statements about mauling and about Ms Lee’s dogs having attacked, the only statement that Ms Lee disputed in reply was the suggestion that Ms Nicholl’s was dragged along the road.  She did not dispute the allegations of mauling or an attack, despite having an opportunity to do so.   If there was no attack, or if the attack was instigated by Mr Nicholls’s dogs this would have been the opportunity for Ms Lee to say so, after the immediate shock of the incident had passed and when there was distance between the parties.
  4. [44]
    Even if I were not satisfied as to a serious attack, which I am, then certainly, given the level of aggression shown by Thunda and Jazz and the unprovoked nature of the approach, and the medical evidence of the trauma to Maci and Peppa and to Mr and Mrs Nicholls, the evidence well supports a finding that, having regard to those behaviours, Thunda and Jazz acted in a way that caused fear to persons or animals.

Should the dogs be declared dangerous?

  1. [45]
    As mentioned, a dangerous dog declaration may be made for a dog if the dog has seriously attacked, or acted in a way that caused fear to, a person or another animal, but this is an exercise of discretion on a case-by-case basis and a declaration need not necessarily follow the finding of an attack.
  2. [46]
    Once a dog is a regulated dangerous dog, its owner must comply 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;[27]
    2. (b)
      to have effective control of the dog if the dog if the dog is not in its home;[28]
    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;[29] and
    4. (d)
      to keep the dog in its enclosure when it is at home.[30]
  3. [47]
    Council has the power to seize and destroy regulated dangerous dogs in certain circumstances and, therefore the consequences of a dangerous dog declaration are grave.
  4. [48]
    I have taken the following issues into consideration when deliberating on the exercise of my discretion under section 89 of the AM Act:

Factors supporting a declaration

  1. (a)
    The injuries to persons and animals as a consequence of the attack were severe (discussed earlier in these reasons).
  2. (b)
    The attack caused considerable fear and trauma to persons and animals involved in the attack, including fear and concern to the two witnesses who attended the scene (discussed earlier in these reasons).
  3. (c)
    The attack was unprovoked, and upon two animals being walked on lead some distance away.
  4. (d)
    Thunda and Jazz were on lead and ought to have been under the effective control of Ms Lee but due to their sheer weight and size, their failure to react to commands and their commitment to the attack, she was not able to control them so as to prevent the attack.
  5. (e)
    Ms Lee said immediately following the incident that she accepted responsibility for what occurred and offered to pay and did pay the considerable vet bills incurred by the Nicholls, and she admitted in her application that the dogs acted protectively because she provoked them by exhibiting anxiety when she observed Mica and Peppa in the distance, concluding in her application that:

My dogs are not at fault because they were provoked by me and they, and me, are attending further dog training to correct this behaviour.[31] 

However, I am not satisfied that this acceptance of responsibility outweighs Ms Lee’s hindsight denial of the attack and her later statements minimising the nature of the attack to “an approach” typical of socialising dogs.  These later statements show a lack of insight into the risk to the community the behaviour of the dogs posed and an attitude that is inconsistent with community expectations and the rights of individuals to walk their dogs safely in public.

Factors weighing against a declaration

  1. (f)
    There is no relevant history of Thunda or Jazz engaging in any threatening or attacking behaviour. Suggestions in the evidence that aggressive behaviours had been observed by neighbours prior to the incident were untested hearsay and I have given them no weight.   Ms Lee produced evidence from her veterinarian[32] that said:

I … oversaw the veterinary care and treatment of Thunda and Jazz from the period January 2018 to January 20 December 2018.

I understand there has been an incident involving Thunda and Jazz and I seek to submit that during the year that both dogs attended our veterinary clinic we never experienced any behavioural issues with them, nor did we have any issues with them with other dogs that visited our clinic when they did. They had several visits to our clinic during this period of time.

However, this is an observation by the vet in their environment only.  The vet did not say that they had observed the behaviour of the dogs in public, in their yard or when acting protectively of Ms Lee.  The statement also pertained to 2018 only, which was two years prior to the attack.   I lend very little weight to this evidence.

  1. (g)
    Ms Lee said that the dogs had received further training, as had she, and that she had also undertaken her own research on the Internet.  Ms Lee produced a letter from Bark Busters dated 2 August 2017 that confirmed the dogs were booked for some home dog training (but did not specify what the training was).   She produced a further letter from Bark Busters dated 19 September 2020[33] that said:

Our valued client, Elana Lee, has contacted Bark Busters to advise of these current status of her dogs with council. Ms Lee is currently under the care of Bark Busters, and she has our Lifetime Support Guarantee with both of her dogs, Thunda and Jazz. We understand there has been an on-lead incident, and as such, we will continue to provide Ms Lee with ongoing training and support and safe scene setting, to provide management and control solutions for future walking.

At any stage during the dogs’ life, Ms Lee can call on us for additional training and support, and at our direction, Ms Lee has also commenced doing additional programming exercises with her dogs to manage the issues raised by council.

Ms Lee also produced an email from Gold Coast Dog Trainer dated 1 December 2016[34] wherein the director/head trainer says:

You are more than welcome to come and meet me at the beach or at one of the dog parks, even if it's just once a week or something to keep up socialisation. We can go when it is relatively quiet? Thunda really needs to keep socialising! Can your brother help?

That's great that you walk them well together, I would keep practising a bit of obedience with them separately each day though, just until they really start listening to you.

You walked past that dog that jumped out on you fine last Saturday! Try and come with me for a few walks so we can build up your confidence.

Again, the evidence of training is from 2016 and 2017, well prior to the incident.   Further, details of the type of training given, who undertook it and their qualifications, when it was undertaken, how it went, when it was completed and information regarding the potential benefits or improvements within the dogs’ behaviours as a consequence of completing or undertaking the training were not provided.   For those reasons, there is very little weight that can be given to this evidence. 

  1. [49]
    In reviewing the Council’s decision, I have been keenly aware of Ms Lee’s relationship and companionship with Thunda and Jazz and the concerns she raised in relation to the additional costs a declaration will give rise to.
  2. [50]
    I cannot allow those concerns, however, to override a consideration of concerns for community health and safety.
  3. [51]
    The purposes of the AM Act include providing for the effective management and responsible ownership of regulated dogs.[35]  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.[36]
  4. [52]
    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.[37]
  5. [53]
    The purposes of Chapter 4 are achieved by, among other things:
    1. (a)
      providing for local governments to declare dogs to be dangerous dogs; and
    2. (b)
      imposing conditions on keeping, and requirements for the control of, regulated dogs.[38]
  6. [54]
    Thunda and Jazz attacked two dogs who were being walked on lead in a public place and, in the course of the attack, injured both dogs (one quite severely) and caused injury to their owners.   They were not provoked into the attack and in fact, broke lead and crossed a distance of twenty metres to instigate the attack.   They did not respond to “check” commands by their owner, and it took a considerable physical effort, including the intervention of a bystander to bring the attack to an end.
  7. [55]
    The effect of declaring Thunda and Jazz dangerous is to impose conditions prescribed by the AM Act to ensure their effective control, so that an attack does not recur. This is not disproportionate but entirely consistent with the objects of the Act.   Any factors weight against a declaration in this case do not outweigh the factors weighing in favour of a declaration.
  8. [56]
    For those reasons, the decision of the Council of the City of Gold Coast dated 9 September 2020 to declare “Thunda” and “Jazz” regulated dangerous dogs is affirmed. 

Footnotes

[1]  As no documents were filed to evidence this, out of an abundance of caution, this decision has proceeded with respect to both dogs named in the application and the original decision.

[2]  Pursuant to section 89 of the Animal Management (Cats and Dogs) Act 2008 (Qld) (“the AM Act”).

[3]  Section 9(1) of the QCAT Act.

[4]  Section 17(1), ibid.

[5]  Section 20, ibid.

[6]  Section 21, ibid.

[7]  Section 89(2), ibid.

[8]  Section 89(3), ibid.

[9]  Section 89(7), ibid.

[10] Brake v. Gold Coast City Council [2015] QCAT 52 at [38].

[11] Hermanussen v. Brisbane City Council [2012] QCAT 710 at [15].

[12] Lee v. Brisbane City Council [2012] QCA 284 at [11].

[13]  Ibid.

[14] McKenzie v Brisbane City Council [2016] QCAT 267 at [15].

[15]  Pages 70-76 in the SOR bundle filed 27 January 2021.

[16]  Page 106 of the SOR filed 27 January 2021.

[17]  Page 107 of the SOR filed 27 January 2021.

[18]  Statement of Ms Lee dated 9 July 2021, at paragraph [7].

[19]  Pages 62-65 of the SOR filed 27 January 2021.

[20]  Pages 66-69 of the SOR filed 27 January 2021.

[21]  Pages 78-80 of the SOR filed 27 January 2021.

[22]  Pages 75 to 76 of the SOR filed 27 January 2021.

[23]  Page 91 of the SOR filed 27 January 2021.

[24]  Page 92 of the SOR filed 27 January 2021.

[25]  Pages 93, 95 and 99-103 of the SOR filed 27 January 2021.

[26]  Pages 96-98 of the SOR filed 27 January 2021.

[27]  Schedule 1. s 3(1)(a) of the AM Act.

[28]  Section 3(1)(b), ibid.

[29]  Section 3(2), ibid.

[30]  Section 4(2), ibid.

[31]  Annexure A to the application, also page 18 in the SOR filed 27 January 2021.

[32]  4Paws, Dr Jensen dated 9 December 2020 marked “EL4” to Ms Lee’s statement of 26 October 2020.

[33]  Marked “EL2” to Ms Lee’s statement of 26 October 2020.

[34]  Marked “EL3” to Ms Lee’s statement of 26 October 2020.

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

[36]  Section 4(g) and (l) of the AM Act.

[37]  Section 59(1), ibid.

[38]  Section 59(2), ibid.

Close

Editorial Notes

  • Published Case Name:

    Lee v Council of the City of Gold Coast

  • Shortened Case Name:

    Lee v Council of the City of Gold Coast

  • MNC:

    [2022] QCAT 12

  • Court:

    QCAT

  • Judge(s):

    Member Lember

  • Date:

    11 Jan 2022

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Brake v Gold Coast City Council [2015] QCAT 52
2 citations
Jump To
Cite 1 - [2015] QCAT 52
Cite 2 - [2015] QCAT 52
Hermanussen v Brisbane City Council [2012] QCAT 710
2 citations
Jump To
Cite 1 - [2012] QCAT 710
Cite 2 - [2012] QCAT 710
Lee v Brisbane City Council [2012] QCA 284
2 citations
Jump To
Cite 1 - [2012] QCA 284
Cite 2 - [2012] QCA 284
McKenzie v Brisbane City Council [2016] QCAT 267
2 citations
Jump To
Cite 1 - [2016] QCAT 267
Cite 2 - [2016] QCAT 267

Cases Citing

Case NameFull CitationFrequency
GSC v Director General Department of Justice and Attorney-General [2023] QCAT 4471 citation
1

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