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  4. Petersen v Rockhampton Regional Council; Lister v Rockhampton Regional Council - [2022] QCAT 43

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Petersen v Rockhampton Regional Council; Lister v Rockhampton Regional Council[2022] QCAT 43

Petersen v Rockhampton Regional Council; Lister v Rockhampton Regional Council[2022] QCAT 43

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Petersen v Rockhampton Regional Council; Lister v Rockhampton Regional Council [2022] QCAT 43

PARTIES:

CIMErond PETERSON

(applicant in GAR346-19)

SAMANTHA LISTER

(applicant in GAR395-19)

v

ROCKHAMPTON REGIONAL COUNCIL

(respondent)

APPLICATION NO/S:

GAR346-19

GAR395-19

MATTER TYPE:

General administrative review matters

DELIVERED ON:

9 February 2022

HEARING DATE:

3 December 2021

HEARD AT:

Rockhampton

DECISION OF:

Member Taylor

ORDERS:

  1. In the matter of GAR 346-19, the decision of the Rockhampton Regional Council dated 9 September 2019 to declare ‘Chocolate’ a dangerous dog is confirmed.
  2. In the matter of GAR 346-19, the decision of the Rockhampton Regional Council dated 9 September 2019 to declare ‘Panic’ a dangerous dog is confirmed.
  3. In the matter of GAR 395-19, the decision of the Rockhampton Regional Council dated 9 September 2019 to declare ‘Karma’ a dangerous dog is confirmed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – animals – dangerous dog – where Dangerous Dog declaration made – where no challenge to the fact of the attack – where no challenge to it being a serious attack - where identity of dog in question

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 18, s 19, s 20, s 21, s 24

Animal Management (Cats and Dogs) Act 2008 (Qld), s 61, s 89, s 90, s 94, s 95, s 183, s 187, s 188

Briginshaw v Briginshaw (1938) 60 CLR 336

Brisbane City Council v Roy [2020] QCATA 147

Puopolo v Brisbane City Council [2020] QCAT 442

Rockhampton Regional Council v Mathew Tonkins Magistrates Court Rockhampton 1694/15, unreported, 14 December 2015

APPEARANCES & REPRESENTATION:

Applicants:

Ms Lynette Laskus

Respondent:

Mr J.A. Buckenham – Co-ordinator Local Laws Rockhampton Regional Council

REASONS FOR DECISION

Two Proceedings / One Set of Reasons

  1. [1]
    In an Order made by this Tribunal with the consent of all parties in both proceedings, applications GAR 346-19 and GAR 395-19, whilst remaining separate proceedings, were to be heard together.[1]
  2. [2]
    Such was an appropriate order to have been made. The two applications concern a single attack by three dogs on one dog. Two of the alleged attacking dogs are owned by one of the applicants, the third alleged attacking dog is owned by the other applicant. Additionally, the applicants in each matter are mother and daughter and they each gave evidence concerning each matter.
  3. [3]
    For these reasons, whilst there remains two separate proceedings, and accordingly orders are made separately for each, it is convenient to give my reasons for the decisions in each proceeding as a single set of reasons.

Representation

  1. [4]
    The applicants in each matter were represented in the hearing by Ms Lynette Laskus. Her relationship with the applicants is unknown to me but her involvement was permitted by an Order made by this Tribunal on 20 January 2020 in GAR 395-19 whereby leave was given to Ms Lister for Ms Laskus to represent her in the proceeding.
  2. [5]
    It is unclear from the Tribunal record as to whether a similar order was made in GAR 346-19 although I infer it was, such inference being drawn from the content of the Directions of 20 January 2020 to which I have just referred, expressed in part as being together with GAR 395-19.
  3. [6]
    If however no such order was made, I would have given leave for Ms Laskus to represent Ms Peterson if an application had been made before me, and so for completeness I allowed Ms Laskus to represent Ms Peterson in the hearing. Such was done to permit an orderly conduct of the hearing given the two proceedings were being heard together and in essence involved the same material.

The Material before the Tribunal

  1. [7]
    The material filed by the parties in each proceeding was extensive. In terms of that provided by the applicants, it was also prolix and confusing, at times repetitive and seemingly crossing over between the two matters. The respondent’s material in each matter was also repetitive although such was not to be unexpected given the nature of the two matters concerning a single attack and the investigation documentation being the same in each matter save only for the relevant notices that had been issued in respect of each of the applicants’ respective dogs.
  2. [8]
    At the commencement of the hearing, I took time to explain to the applicants that the only material I would consider in reaching my decision in each matter was that to which I was referred by the parties during the hearing, and just because they had filed something in their respective proceeding they should not expect that I will consider it unless I was referred to it. I emphasised the importance of this given the voluminous nature of the material before me, and the confusing nature of the applicant’s material generally.
  3. [9]
    What then followed during the hearing is that relevant material was tendered and marked as an Exhibit in the hearing, such to be considered in each matter, or only in the matter to which it was relevant, as necessary.[2] However, on many occasions Ms Laskus sought to refer to material that had not been tendered and so put into evidence but which had apparently been filed in the Tribunal Registry although Ms Laskus was not able, in many instances, to readily identify the filed document. This unnecessarily extended the hearing time.
  4. [10]
    Additionally, my time in considering all the documentary material was also extended beyond that which would ordinarily be expected in matters such as these because of the prolix and confusing nature of the applicants’ material.

Background

  1. [11]
    The applicants reside in a suburb of Rockhampton. The address they each give in their statements filed in their respective proceedings are not the same address, although in their statements they each asserted that Ms Lister at the time was residing with Ms Peterson.  
  2. [12]
    On the morning of 22 May 2019 at approximately 10:30 am, a dog attack occurred in that suburb. The attacked dog was Bull Arub cross named Brutus. He belonged to a Ms Flowers who also lives in that suburb.
  3. [13]
    The attack occurred on the roadway outside Ms Flowers house, it being opposite Ms Lister’s stated place of residence and around the corner and down the street from Ms Peterson’s residence.[3] (the Attack). Brutus sustained significant injury.[4] Shortly thereafter Ms Flowers made a complaint to the respondent about the Attack.
  4. [14]
    At that time, Ms Peterson owned two dogs. One is a Staffordshire Bull Terrier Cross female, chocolate/white in colour, named Chocolate. The other is an American Staffordshire Terrier male, red in colour, named Panic. At the same time, Ms Lister owned one dog, namely an American Staffordshire Terrier female, red in colour, named Karma. Notwithstanding that the formal residence of Ms Lister was at the time at a different to address to that of Ms Peterson, the applicants say that Karma was being kept at Ms Peterson’s place of residence. It is alleged that together Chocolate, Panic, and Karma, committed the Attack.[5]
  5. [15]
    On 21 June 2019, following investigation by the respondent of the Attack, it issued a Proposed Regulated Dog Notice under s 90 of the Animal Management (Cats and Dogs) Act 2008 Qld (the Animal Act) to each of the applicants for their respective dogs.[6] (Proposed Regulated Dog Notices)
  6. [16]
    Each of the applicants responded to these notices. The essence of their responses was the same in each case, asserting that their dogs were not involved in the Attack.[7] (the Applicants’ Representations)
  7. [17]
    Following what is said to be its consideration of the Applicants’ Representations, on 13 July 2019 by way of a letter dated 12 July 2019 the respondent issued to Ms Lister a Regulated Dog Declaration Information Notice declaring Karma a dangerous dog.[8] Similarly, on 15 July 2019 by way of letters of the same date, the respondent issued to Ms Peterson two Regulated Dog Declaration Information Notices, each declaring Chocolate and Panic dangerous dogs.[9] (the Dangerous Dog Declarations)
  8. [18]
    By documents lodged with the respondent on 14 August 2019, the applicants then each sought review of the Dangerous Dog Declarations as relevant to their respective dogs.[10]
  9. [19]
    By letters dated 9 September 2019, the respondent issued the applicants with the response to those applications for review, serving Ms Peterson on 10 September 2019 and Ms Lister on 11 September 2019, with their respective notices as a decision on the internal review. Respectively, therein the Dangerous Dog Declarations were confirmed.[11] (the Review Notices)
  10. [20]
    The applicants then each, as relevant to their respective dogs, sought further review of the respondent’s decisions in this Tribunal.

The Statutory Framework of the Animal Act

  1. [21]
    I respectfully adopt the following description of the statutory framework of the Animal Act from the reasoning of the Appeal Tribunal in Brisbane City Council v Roy [2020] QCATA 147 because of its succinctness and clarity.[12]
  2. [22]
    A regulated dog means a declared dangerous dog, a declared menacing dog or a restricted dog.[13] A local government may declare a dog to be dangerous, menacing, or restricted.[14] A declared dangerous dog includes a dog declared to be dangerous under s 94 of the Animal Act.[15] A dangerous dog declaration may be made if a 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.[16]
  3. [23]
    A menacing dog declaration may be made for a dog only if a ground referred to in
    s 89(2) of the Act exists, except that the attack was not serious.[17]
  4. [24]
    ‘Seriously attack’ means to attack in a way causing bodily harm, grievous bodily harm or death.[18] ‘Grievous bodily harm’ and ‘bodily harm’ have the meaning given by the Criminal Code Act 1899 (Qld) Schedule 1 (‘Criminal Code’), s 1.[19] Under the Criminal Code: ‘bodily harm’ means any bodily injury which interferes with health or comfort; ‘grievous bodily harm’ means the loss of a distinct part or an organ of the body; or serious disfigurement; or any bodily injury of such a nature that, if left untreated, would endanger or be likely to endanger life, or cause or be likely to cause permanent injury to health; whether or not treatment is or could have been available.
  5. [25]
    If a local government proposes to make a regulated dog declaration it must first give to the owner of the dog a proposed declaration notice.[20] The local government must consider any written representations and evidence submitted by the dog owner.[21] If the local government is satisfied that a ground for making the declaration still exists, it must make the regulated dog declaration.[22]
  6. [26]
    The decisions that are communicated to the applicants by way of the Review Notices are the decisions under review in these proceedings.[23] (the Decisions). It is not the decisions to issue the Dangerous Dog Declarations that are under review, such having been the subject of the general review applications made by the applicants to the respondent under s 183 of the Animal Act.[24]
  7. [27]
    The purpose of this review, arising under s.188 of the Animal Act [25] in conjunction with s 17 to s 20 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), is to produce the correct and preferable decision. It is conducted by way of a fresh hearing on the merits.[26] In effect, as the Member constituting this Tribunal for the purposes of the review, I stand in the shoes of the original decision maker.
  8. [28]
    I am not concerned with the process by which the Decisions were reached and whether any error was made in any of the steps taken by the decision-maker. Accordingly, the role of the respondent is not to advocate for the correctness of the Decisions, but rather to assist me in my task of being required to make the correct and preferable decision.[27] In doing so the respondent primarily refers to the material that was before its decision-maker, that is Ms Nishua Eliawala, during the process that led to this hearing, and to have its witnesses confirm their previously filed written statements and make them available for cross-examination, but it may also present other evidence during the hearing by way of other witnesses.[28]
  9. [29]
    Following consideration of the relevant material, as relevant to each matter, I may confirm or amend the Decisions, set aside the Decisions and substitute my own decisions, or set aside the Decisions and return the matters for reconsideration by the decision-maker.[29]

The Issue in these Proceedings

  1. [30]
    It is not in issue that the Attack occurred. Nor is it in issue that the Attack was a serious attack for the purposes of s 89 of the Animal Act. The issue in this proceeding is solely whether the applicants’ respective dogs, Karma, Chocolate, and Panic were the attacking dogs. As I have noted it, the applicants’ respective cases are that they were not. That being so, the focus of my attention need only be, and must be, whether I can be satisfied on the material before me that the dogs, or any one of them, were not an attacking dog.

The Applicants’ Case in the Hearing

  1. [31]
    In paragraph [16] herein I noted the existence of the Applicants’ Representations which they were each entitled to give under s 90(1) of the Animal Act. They contained these statements.
    1. (a)
      By Ms Peterson

Council’s reasons for the proposal are based on lies, a biased investigation, and inconsistent, incomplete, and inaccurate information.

When the family go out, Karma, Chocolate and Panic as a matter of routine are chained up the [Street] address.

We did this on the 22nd May before we went out and the dogs were still on the chain when we got home.[30]

  1. (b)
    By Ms Lister

Council (sic) reasons for the proposal are based on lies instigated by a complainant who has a personal vendetta against me and my family … Council’s investigation is not complete, is biased and lacks procedural fairness.

Karma was not involved in the alleged attack… Karma had been chained up at [address], before we went out in that morning. She was chained along with Panic and Chocolate, and they were still chained when we arrived home. [31]

  1. [32]
    The first paragraphs in each of these extracts was an argument that pervaded the presentation of the applicants’ respective cases in the hearing. This occurred despite me informing them, via Ms Laskus, at the start of the hearing and on several occasions during it, that I am not concerned with the process engaged in by the respondent that led to the Decisions. I sought to have them understand that this was a fresh hearing on the merits such that to the extent it may be their opinion that the process was flawed and they were adversely affected by it, to the extent of the matter in issue they had the opportunity to put their cases before me as the decision maker and so satisfy me that the Decisions were not the correct and preferable decisions.
  2. [33]
    Unfortunately, it appeared to me that Ms Laskus failed to understand this. She consistently sought to lead evidence, or draw evidence via cross-examination, and later make submissions, relevant to what was said to be steps having been taken by the respondent erroneously. This was apparently done in an effort to undermine the correctness of the Decisions. Generally, she failed to simply present the applicants’ cases in a way that showed me with some certainty I could accept as being correct the fact that Karma, Chocolate, and Panic, nor any one of them, was not involved in the Attack. I will not dwell on this point anymore in detail in these reasons nor the evidence and arguments made concerning the process, it having taken up much of the hearing time, but rather I will deal solely with the limited evidence that was presented going to the sole issue in these proceedings on which my decision turns.
  3. [34]
    It is convenient to start by returning to the Applicants’ Representations. In addition to that which I have just referred, they also contained the following statements which immediately followed them:
    1. (a)
      By Ms Peterson

Officer Alan (sic) Brown is a witness to this as he followed us home from the complainant’s property … and he pulled up behind us …, while we were still unpacking the car. We had not had time to take the dogs off the chain and they were still on the chain, (sic) when we arrived home.

  1. (b)
    By Ms Lister

This can be confirmed by other members of the family.

This can be confirmed by Alan (sic) Brown.

  1. [35]
    The remainder of those representations raises allegations regarding the complainant Ms Flowers and events subsequent to the Attack. In general terms these are not relevant to the issue in these proceedings. However, that being said, I pause here to particularly note the allegations regarding Ms Flowers that suggest there is a substantial degree of animosity between her and the two applicants. I will return to these later in these reasons.
  2. [36]
    The Alan Brown to whom each of the applicants refer is Mr Allan Brown, the respondent’s investigating officer who undertook the investigation and produced the Summary Report for Dog Attack which appears in the respondent’s material.[32] Notwithstanding that the respondent had filed a statement given by him in these proceedings, he was also the subject of a Notice to Appear requiring his attendance at the hearing which was applied for and obtained by the applicants.[33]
  3. [37]
    Each of the applicants also gave evidence during the hearing. I will refer to it first before I return to Mr Brown’s evidence.
  4. [38]
    Ms Petersen’s written statement, given as a sworn affidavit, was extensive.[34] Once again much of it went to matters concerning the process leading to the Decision, or raised matters that are not in issue in, or are entirely irrelevant to, her proceeding. The following short extract is that which, on my reading, appears to be directed to the issue of whether her dogs, and Karma, were involved in the Attack.

On the 22nd of May 2019 I can testify and as council records will show remain adamant from the very first interview that all three dogs were chained in the back yard before any of us left the property. (Our statements supported by Councils (sic) body cam of the 22nd of May 2019.)[35]

  1. [39]
    Ms Peterson also gave evidence of her attendance at the Bidgerdii Health Centre, with Ms Lister, between 9:30 am and 1:30 pm on 22 May 2019. Therein she mentions a person named Colin as the driver of the car in which they travelled there as well as other persons being present, namely Daniel, Tyson, Toby, Ester, and Charlie.[36]
  2. [40]
    She also states therein that “Bidgerdii has supplied a letter”,[37] which I infer is in support of her assertion of attendance there, but without reference to any specific letter or exhibiting any such letter to her affidavit. There is however an e-mail in evidence said to be from a Mellissa Hilton, the Practice Manager at Bidgerdii dated 13 August 2019 addressed to an unknown addressee and then forwarded to Ms Laskus.[38] I infer this is the ‘letter’ to which Ms Peterson refers. Its content is short and it is apposite to extract it here in total.

I can confirm that Cimerond Peterson and her four children attended the Bidgerdii Health Centre on Wednesday 22 May 2019. Consultations were from 11:45am to 1:15pm with Mother noted as being present.

  1. [41]
    It does not identify the four children by name. The difference between Ms Peterson’s statement that she was seemingly accompanied by six other persons and this letter stating that there were only four children in attendance is not explained.
  2. [42]
    In the timeline of the events as she recounts them, Ms Petersen then returns to the involvement of Mr Brown and makes this statement.

The council’s body cam has recorded the time and the vehicle passing who we now know is Alan Brown (3:27pm) (Body Cam 22ns May 2019) and turning into (Street name given), as he looked at the vehicle with Samantha in the car. He then followed us to (address given) arriving at 3:30pm (Body Cam A. Brown 22nd May 2019).[39]

  1. [43]
    Ms Lister also gave her evidence by way of a written statement presented in affidavit form.[40] Again much of its content went well beyond the issue in her proceeding and sought to present argument concerning issues that it appears may exist between her and Ms Flowers, such being issues on which I need not, and do not, make any comment. As to the issue in question, in the same way as Ms Peterson does, Ms Lister refers to her asserted visit to Bidgerdii Health Centre stating she arrived there before 10:30 am returning to the address where the dogs were kept at 3:30 pm. She also seeks to rely on the councils’ body cam footage to show that the dogs were chained up in the backyard at all times.[41]
  2. [44]
    There is also an issue of Ms Lister’s place of residence. As I noted in earlier in these reasons, the applicants each said that at the time of the Attack she resided with Ms Peterson. This is stated in Ms Peterson’s affidavit,[42] although it is not so clear from Ms Lister’s affidavit. Therein Ms Lister gives her address as a Unit # in a different street, but says that he usually stays with her mother and also says that on 22 May 2019 she did not go to her Unit.[43]
  3. [45]
    There is another issue arising from the applicants’ respective statements that I note here as being relevant. It concerns the time and reason for their alleged absence from Ms Peterson’s residence where it is said the three dogs were chained up in the backyard at all times.
  4. [46]
    In Ms Peterson’s affidavit statement in her proceeding, she states that she left her house at 9:30 am, went to the Bidgerdii Health Centre, departed there at 1:30pm, then went to Shopping Fair on the north side of Rockhampton, returning to her home at the time Mr Brown was at Ms Lister’s Unit with Mr Brown arriving at her house just after she arrived home.[44] Ms Lister gives similar evidence as to time but not to the same detail.[45]
  5. [47]
    Similar statements appear in the Applicants’ Representations. In particular I note the following as they appear in both:

On pulling into Ms Peterson’s driveway, the family exited the vehicle and began to unpack their grocery shopping. Mr Alan Brown pulled up as they were unpacking their car.

The time between Ms Peterson pulling into her driveway and Mr Brown arriving was approximately 2 – 4 minutes later.[46]

  1. [48]
    In contrast to these statements, I note the very first statement each of them gave to the respondent as part of Mr Brown’s investigation of the Attack. These are within the Dog Attack Statement of Fact forms that each of them completed, signed and dated 24 May 2019, copies of which appear in the respondent’s bundle of documents.[47] Therein, each of the applicants state they were ‘out shopping’ at the time of the attack, having departed at 9:30 am and returned at 11:30 am.
  2. [49]
    As I noted at paragraph [35] in these reasons that I would do so, I now make a brief observation regarding the statements by each applicant concerning Ms Flower’s conduct and the apparent animosity between them and her. The assertions made in the Applicants’ Representations in that regard have, in essence, been repeated in their statements.[48]  Once again I must say that whilst I do not, and need not, make any definitive finding about these assertions, as I understand the applicants’ respective cases it seems to me they are each suggesting Ms Flowers is not being truthful in her allegations as to the details of the Attack involving the applicants’ dogs.
  3. [50]
    There was a relatively short cross examination and re-examination of both Ms Peterson and Ms Lister. Much of it was directed to having them describe the dogs but also, in the re-examination, as to whether they had seen other dogs of similar description wandering in the area which they both answered in the affirmative. That examination was not helpful to me.
  4. [51]
    I will return to the applicants’ respective evidence as I have noted it here later in these reasons in my discussion on the evidence and submissions.
  5. [52]
    I thus return to the evidence of Ms Allan Brown. Recalling he was the subject of a Notice to Appear obtained by the applicants his evidence effectively being the only other substantial evidence led by Ms Laskus for the applicants albeit evidence which was provided by the respondent.
  6. [53]
    As I noted in paragraph [36] herein, Mr Brown was the author of the Summary Report for Dog Attack contained in the respondent’s material. He also had given a sworn affidavit that was filed that was tendered by the respondent at the start of the hearing together with its bundles of documents to which I have already referred briefly.[49]
  7. [54]
    Most of the questioning of Mr Brown by Ms Laskus once again went to issues of procedure in the investigation process, particularly in terms of his taking of statements from various witnesses. This was not of any assistance to me.
  8. [55]
    Mr Brown impressed me as a witness. He was quick to recall relevant details but also readily stating where he could not recall certain details. He explained in his affidavit in relatively general terms the nature of his investigation, the results of which are as recorded in the Summary Report for Dog Attack. In response to a question from me at the conclusion of his questioning by Ms Laskus, he confirmed that his Summary Report was complete and contained all relevant information.
  9. [56]
    In his affidavit he refers to his use of a ‘Body Worn Camera’ during his attendance in investigating the Attack, when it was activated, and in what circumstances. As I understood his evidence and that of Ms Peterson and Ms Lister, the body cam footage to which they refer is the recording that was made by Mr Brown in his use of the Body Work Camera. During the presentation of Ms Lister’s evidence, that body cam footage was tendered by Ms Laskus on a USB stick.[50]At that time it was not entirely clear as to the extent to which it was being relied on by the applicants as evidence, but by the conclusion of Mr Brown’s evidence, it being later in the day before Ms Laskus closed the applicants’ cases, it was confirmed as tendered by consent in its entirety.
  10. [57]
    I note that the date of the files on the USB stick is 12 November 2019, that being many months after the date of the Attack. I also note that there is a white sticker placed on this USB stick on which the words ‘BWC Council Footage 2(c)’ are handwritten. In the ‘Statement of Facts’ filed for the applicants on 18 February 2021 there are a number of attached documents. Attachment 2(b) of that document is a copy of a QCAT Declaration shown to be signed by Ms Laskus and dated 15 February 2021 regarding the provision of  USB Storage Device. The next page is referenced 2(c) and lists a number of the digital files on the USB stick with the sticker on it. At the top of the page is the following statement “USB 2 D contains a copy of video footage supplied to Ms. Peterson and Ms. Lister through Freedom of Information application from the Rockhampton Regional Council.   The USB stick supplied is a copy of the council’s records”. Accordingly, for the sake of completeness, I observe here that this USB stick is actually an electronic document produced, I assume, by Ms Laskus for the applicants.
  11. [58]
    I also note that forming part of that which was tendered as the Body Cam Footage, there is a second USB stick. It also has a white sticker placed on it on which the words ‘Wandering Dogs’ is handwritten. There are 28 digital files on that stick with various descriptions assigned to each, although the common thread of those descriptions and on my quick review of those files, they are either photos or video recordings of either Brutus or unidentified dogs wandering in the area in which the Attack occurred.
  12. [59]
    As I understand the presentation of this second USB Stick and its content, it is to support a submission that the Attack could have been carried out by other dogs which wander in the area. However, at its highest, it shows that dogs wander in the area but it does not deal with the matter in issue, such being whether it was Karma, Chocolate or Panic, or any one of them, that was involved in the Attack. It does not identify any other dogs matching the description of any one of those three dogs wherein it could be said that the wrong dog has been identified. Notwithstanding when it was tendered it was said to be the Body Cam Footage, it is quite clearly not digital files recorded by Mr Brown. This second USB stick of digital files was of no assistance to me at all.
  13. [60]
    For completeness I should also make this observation regarding these USB sticks and the content of them as apparent evidence. The applicants also tendered, without objection, an Affidavit sworn by Ms Laskus on 8 December 2020 which references two USB sticks as Annexure B and Annexure C, although no such annexures are included with that affidavit and I infer that the USB sticks referred to are those which were tendered as the Body Cam Footage, and Annexure A which is said to be a partial transcription of the body cam footages and including a ‘commentary’.[51] She states therein

The purpose of the transcribing was to highlight the information exposed and dismissed by the council officer during the interviews.[52]

  1. [61]
    As to photos and videos of the ‘wandering dogs’ she states therein:

… I can verify that these dogs do not belong to Ms Peterson and Ms Lister and are wandering at large in Ruff St, in the front year of 23 Ruff St and Ottoway St, taken, (sic) since May of 2019 including the complainant’s dog Brutus. …[53]

  1. [62]
    At its highest it is Ms Laskus’s opinion of what transpired in terms of the investigation process, something that is not part of that which I must consider in reaching the correct and preferable decision. This affidavit if not of any assistance to me and I did not have further regard to it.
  2. [63]
    Returning then to the video footage taken by Mr Brown, I note again that part of Ms Peterson’s statement which I extract at paragraph [41] herein. In apparent support of that statement the applicants also tendered a single page print out of part of one of those digital files.[54]  It is said to show her car and Samantha in it, passing Mr Brown at 3:25:38 pm on 22 May 2019. As I compare that print out with the video footage on the USB Stick, I can see that it comes from the video file entitled ‘Attend Attacking Dog Owners Property’, wherein Mr Brown records his attendance at Ms Lister’s address at 3:23:54 pm that day. In that video the car can be seen passing that address as Mr Brown is walking back to his car from the front door of the Unit whilst he is speaking stating

“No response to knocking on the front door. No dogs sighted or heard on the property”.

  1. [64]
    The applicants also called Mr Buckenham, the respondent’s representative in the hearing, to give evidence. This was also by way of a Notice to Appear. His examination by Ms Laskus was relatively short. As I followed the line of questioning, it was directed to the arguments being made by the applicants as to an alleged flawed investigation being undertaken. Whilst Mr Buckenham confirmed in his answers to those questions some mistakes were made during the process, he also noted that these mistakes were corrected. There was nothing however arising from this line of questioning that Ms Laskus highlighted either during the questioning or later in her closing submissions that alerted me to mistakes remaining evident in the material that I should take consider in reaching the correct and preferable decision.
  2. [65]
    The applicants also presented Mr Gary Blain as a witness. He was described as a ‘Certified Qualified Military Working Dog Specialist’. An affidavit given by him affirmed 22 November 2019 was tendered,[55] and he also gave evidence by way of telephone. There was some short additional evidence in chief given with leave, and short cross-examination. Therein it was confirmed by Mr Blain that he had not at any time sighted the dogs in question.
  3. [66]
    As I understood his evidence, it was led to explain the nature of wandering dogs and that when any decision is made regarding the management of dogs that the history of a wandering dog should be considered and accounted for. Seemingly the purpose of this was to enhance the statement made by Ms Lister in her statement about Brutus at various times having wandered.  His evidence did not assist me in any way.

The Respondent’s Material and Evidence

  1. [67]
    As I have already noted it earlier, the respondent properly provided this Tribunal with a bundle of documents in each proceeding, such being in effect a statement of reasons for each of the Decisions.[56]
  2. [68]
    From within those bundles, certain statements of witnesses were referred to and although not extracted from them, they were separately tendered as statements of witnesses for the respondent in the hearing. These were the ‘Dog Attack Statement of Fact’ given to Mr Brown as part of his investigation, by
    1. (a)
      Ms Melissa Hardy dated 7 June 2019.[57]
    2. (b)
      Mr Michael Kaigey dated 11 June 2019.[58]
    3. (c)
      Ms Melissa Flower dated 18 June 2019.[59]
  3. [69]
    Curiously, whilst Ms Laskus informed me that the applicants required Mr Kaigey and Ms Flower for cross-examination, they did not require Ms Hardy’s attendance and her statement was tendered as evidence by consent.
  4. [70]
    Ms Hardy’s evidence was relatively succinct. She states her street address therein to be the same as Ms Lister’s save only that, as I infer from the content of the statement, she resides in the adjoining unit, and it is from that location she says she witnessed the Attack. It is convenient to extract part of her statement herein:

On Wednesday 22nd May 2019 at approximately 1030am I witnessed three dogs attacking the dog from the house across the road on the corner of [road] and [street].[60]

…

Three dogs have come up from [street] and got stuck into the dog from across the road. The attack started just at the front gate. I have seen two of the attacking dogs previously but not the third dog. Description of the attacking dogs, two were tan not sure of the breed one was female because it its tits, the other was bigger not sure of the sex and the third dog was red/tan dark colour not sure about the breed.

I have seen the two tan dogs at the unit next door on a number of occasions. … The lady from across the street has come out with a broom trying to get the dogs off her dog. The lady from across the road was yelling out to the girl next door to come and get your dogs … I’m not sure how long it took but they walked across the street to the driveway and got the dogs apart. The couple from next door brought the dogs back to the unit.

I’m not sure how long after the dogs were taken to the unit, they walked the dogs on lead up to [street].[61]

There was verbal abuse from the victim dog owner to the couple in the unit.

I have seen two of the attacking dogs wandering on a number of occasions, they walk from [street][62] to the unit, they seem to know where they are going.

  1. [71]
    The relevant parts of Mr Kaigey’s statement was of similar effect. I need not extract it here. He was cross-examined by Ms Laskus and then shortly re-examined by Mr Buckenham. There were some notable answers given by Mr Kaigey that overall raised some questions about the facts as they are said to have occurred, namely:
    1. (a)
      He described one of the dogs as being a ‘Jack-Russell’; and
    2. (b)
      He described the female person who picked up the dogs as ‘blond’.
  2. [72]
    As I have noted it earlier in these reasons, Ms Flower is the owner of the dog attacked, and the complainant. Her statement was also helpful. Whilst it explains what she saw of the Attack and her attempts to break it up in some detail, in my opinion it is not necessary to extract that part of her statement but there is another part to it that in my opinion is directly relevant and it is convenient to extract it here. The following is as it appears in the statement immediately after the description of the Attack and her attempts to break it up.

… Sam and her partner Tyson came over to the dogs. I was yelling at her “get your dogs”. Sam was on the phone saying “mum”. … I was still hitting the dogs. Tyson grabbed the big head dog shaking him trying to get it off. The dog was not letting go … . Karma and the other dog let go and Tyson got the male dog off Brutas’s snout. I was still yelling at Sam and Tyson whilst Sam was on the phone.

…

Sam and Tyson then walked the dogs across to her unit where they put Chocolate and Karma inside and left the male dog outside. …

After about ten minutes Sam and Tyson walked the dogs on lead from her unit to her mother’s place in [street]. When they walked the dogs past my property Shaun and I had words with them again. I told them I was calling the council as those dogs are dangerous.

…

  1. [73]
    Ms Flowers was also cross examined by Ms Laskus. That cross-examination was not helpful to the applicants as at no time was it put to Ms Flowers by Ms Laskus that she was mistaken in her identity of the dogs or of the persons who came out to break up the attack and who took the dogs back to the Unit. To the contrary, that cross-examination served to draw out evidence from Ms Flowers that it was Ms Lister who was the ‘Sam’ to whom she referred in her statement, and that the ‘Tyson’ to whom she referred was her partner, and that they lived across the road from her in the Unit.
  2. [74]
    There was also two other Dog Attack Statements of Fact contained in the respondent’s material, said to be of witnesses to the Attack. One was by a Ms Eileen Nelson. The other by a Mr Shaun Tuckwood.[63] Neither of these persons were presented as a witness by the respondent in the hearing.[64] Given that they were not presented, and accordingly the applicants did not have the opportunity to cross-examine them, I did not have regard to the content of their statements.

Closing Submissions

  1. [75]
    Ms Laskus gave a written summary as her closing for the applicants,[65] supported by some brief oral submissions. Once again much of this was directed at the respondent’s procedure and processes engaged in to ultimately reach the Decisions, asserting on numerous occasions that the applicants had been denied procedural fairness. She also sought to once again argue that there was a conflict of interest of which Mr Buckenham was seized and formed part of the decision making process.
  2. [76]
    She also made submissions concerning the statement given by a Ms Beverly English which was referred to in the Summary Report for Dog Attack prepared by Mr Brown, and an unknown person referring to wandering dogs that is said to appears in the body cam footage,[66] arguing that the respondent’s decision maker did not give enough weight to either of these facts and that I should do so in forming my conclusions on the matters.
  3. [77]
    Whilst the submissions, both oral and written, were relatively extensive, they were unhelpful in drawing my attention to the key evidence that had been presented. That  being said, as I understood the essence of the applicants’ closing, it was that:
    1. (a)
      There is clear evidence that the dogs were chained up in the back yard of Ms Peterson’s house when Mr Brown arrived to investigate the complaint.
    2. (b)
      There is no evidence that these dogs attacked Brutus.
  4. [78]
    Ms Laskus also referred me to a number of cases which she asserted were authorities for the arguments she was making. Only two of these dealt with identification of dogs. The remainder were apparently proffered in support of the submissions concerning the errors in the process engaged in by the respondent and the asserted denial of procedural fairness.
  5. [79]
    Mr Buckenham also gave a brief oral closing. As I understood that closing, it may be summarised as asserting that there is no evidence to show that Ms Lister was not residing at her Unit, that she was not at home at the time of the attack, that the investigation material supported the Decisions made, and that the Decisions were correct. As to the caselaw to which Ms Laskus refers, he said it was distinguishable.

Discussion on the evidence and submissions

  1. [80]
    I have read and considered the respondent’s material at length to the extent it was referred to in the hearing supported by witness statement and the oral testimony of those persons required for examination. Whilst I accept the argument that at times it contained some errors,[67] overall the content of it was of an acceptable standard to provide to me the relevant background and record of Mr Brown’s investigation of the Attack and that available to the decision-maker.
  2. [81]
    As to the applicants’ evidence, overall it was poor. It did not address the key issue in each matter, such being whether the three dogs were chained up at the relevant time which if proven would have dispelled the possibility that they could have committed the Attack. Nor did it show with certainty that Ms Lister was not at home, be it either at her Unit or her mother’s house, at the relevant time, which if proven would have dispelled the possibility that she, together with Tyson, entered the fray to break up the Attack and then took the dogs firstly to the unit and then later walked to the street in which Ms Peterson lives.
  3. [82]
    Moreover, and of concern, the statements made by each of Ms Peterson and Ms Lister at various times was inconsistent. As I stated I would in paragraph [51] herein I thus return to the content of their statements and evidence to which I refer in paragraphs [31], [34], [35] and [38] to [51] herein. In particular I note the following.
  4. [83]
    In their Dog Attack Statement of Fact forms, both Ms Peterson and Ms Lister give Ms Lister’s place of residence as her Unit. It was not until the time of the Applicants’ Representation that it was raised for the first time that Ms Lister was staying temporarily with Ms Peterson at the time of the Attack.
  5. [84]
    Of some concern is the inconsistency in the information contained in those Dog Attack Statements of Fact as to their departure and return times to the house. Initially their absence was because they went shopping, departing at 9:30am and returning at 11:30 am. It was not until the time of them providing the Applicants’ Representations that it was said that they departed at 9:30 to attend appointments at the Bidgerdii Health Centre and then later go shopping, returning at approximately 3:30pm.
  6. [85]
    These significant differences raise the question as to why the place of residence and the attendance at Bidgerdii and later time of returning home was not mentioned in the Dog Attack Statements of Fact signed by both Ms Peterson and Ms Lister merely two days after the date of the Attack, particularly noting that where each of them have signed carries these words “This statement comprising of ___ page/s is true and correct to the best of my recollection. I make it knowing that if any part of it is deliberately false or untrue, I can be prosecuted accordingly.” In light of those words being present, to me it should be expected that the facts of Ms Lister residing at Ms Peterson’s house, and their attendance at Bidgerdii and the later arrival home would have been noted therein.
  7. [86]
    There is no evidence in the video footage of Mr Brown witnessing Ms Peterson’s car passing him and that he looked at the car seeing Ms Lister in it, and that he then followed them to Ms Peterson’s address. As I referred to it in paragraph [63] herein the video in question shows what I accept is Ms Peterson’s car passing the location where Mr Brown was at the time, but it does not in any way show that he noticed the car nor that it shows Ms Lister being in the car. It was at best a fleeting vision of the car passing without in any way being able to identify with any certainty the persons in the car.
  8. [87]
    Nor is there any evidence, as suggested by Ms Petersen as I note it in paragraphs [34](a) and [47] herein, that Mr Brown pulled up behind them whilst they were still unpacking the car. To the contrary, what can be seen from the video footage is that when Mr Brown first arrives at Ms Peterson’s address both Ms Peterson and Ms Lister were inside the house given that they both came to the front gate.[68]
  9. [88]
    On my viewing of that body cam footage of Mr Brown’s arrival the following oral exchange is also observed when Ms Peterson walks out through the front gate and Mr Brown introduces and identifies himself, with Ms Lister observing from behind the gate but looking over the top of it.

Mr Brown We are just here in regards to an incident which happened with a couple of dogs.

Ms Petersen I haven’t been home all morning and my dogs have been tied up.

Mr Brown Your dogs.

Ms Peterson Yeah.

Mr Brown Which dogs are yours ?

Ms Peterson Um, I’ve got Chocolate and Panic here, and I’m looking after Samantha’s dog too.

…

Ms Peterson … Samantha can’t have Karma at her place until she gets a

house so I offered to look after her until then.

 

  1. [89]
    Whilst Ms Lister is seen in the footage to be observing this conversation, she can be heard to say “Yeah” or “Yep” in apparent confirmation of that last statement by Ms Peterson.
  2. [90]
    It should be immediately observed that there is not any mention of Ms Lister living at Ms Peterson’s residence. Moreover, in the context of the words spoken the inference can be drawn that Ms Lister continues to reside at her Unit.
  1. [91]
    Additionally, as I view this footage and listen to the words spoken, I observed that at no time did Mr Brown mention the Attack, nor assert that Ms Peterson’s and/or Ms Lister’s dogs or any one of them was involved in the Attack. He merely referred to an ‘incident involving a couple of dogs’. A contrary statement is made by both Ms Peterson and Ms Lister in their respective versions of the Applicants’ Representations wherein they both state the following.

Mr Brown notified Ms Peterson that her dogs had been involved in an alleged attack. At this Point Mr Brown was informed that the dogs were still chained up in the backyard as he had clearly seen them just arrive home in their vehicle.

  1. [92]
    That assertion is simply incorrect. No such statement was made by Mr Brown. Nor from this video footage can it be seen that Mr Brown had seen them just arrive home.
  2. [93]
    I also note the following:
    1. (a)
      Whilst Ms Lister states, as I have noted it in paragraph [34](b) herein that the fact of the dogs having been chained up at her mother’s residence before they are said to have departed the house can be confirmed by other members of the family, no other family members were presented as witnesses in the hearing to attest to that fact.
    2. (b)
      As to the asserted attendance at the Bidgerdii Health Centre, the evidence in that regard does not support the assertion that Ms Lister was there. In Ms Peterson’s statement, as I have noted it in paragraph [39] herein, she names a person who is said to have driven the car to the Centre and other persons who were present, but none of those persons were presented as a witness to corroborate the facts stated, particularly that Ms Lister was present. Whilst I accept that some of those persons might be young children and thus not appropriate to have been called as a witness, at the very least it seems to me that the driver of the car, a person named Colin, could have readily given evidence to support the assertion of Ms Lister being present.
    3. (c)
      As to the letter from Bidgerdii to which I referred in paragraph [40] herein that Ms Laskus submitted I should give weight, it merely states that Ms Peterson was there with four of her children but does not name them. It does not assist me in being able to reach a conclusion that Ms Lister was present.
  3. [94]
    What is also critical in my opinion is the evidence of Ms Flower who specifically identified Ms Lister as being present at the time the dogs were retrieved from the Attack and then taken to Ms Lister’s Unit across the road. This was not in any way meaningfully challenged in cross-examination by Ms Laskus and thus it was left before me as being at least plausible.
  4. [95]
    At this point in the discussion it is thus apposite to return to the observation I made in paragraph [49] herein concerning the apparent reason for the assertions made by the applicants concerning Ms Flower.
  5. [96]
    I repeat that which I said therein, I do not, and need not, make any definitive finding about these assertions. However, I do not see anything in the evidence that was presented to me in the hearing that leads me to conclude that Ms Flowers is not truthful in her allegations.
  6. [97]
    I have watched the body cam footage of Mr Brown’s first arrival at Ms Flower’s residence at 3:13 pm on 22 May 2019.[69] In that footage, as Mr Brown walks through the front gate then introduces and identifies himself to Ms Flower, her dog is seen on the front patio area clearly injured lying on a sheet. Ms Flower, without any prompting or questioning from Mr Brown, explained what had happened pointing across the road to Ms Lister’s Unit and stating that “they have taken the dogs from there around the corner …” then went on to explain what she observed of the Attack and her involvement in efforts to break it up.
  7. [98]
    Upon then being questioned by Mr Brown as to whether she could identify the dogs, Ms Flower responded by specifically naming Karma, although referring her to as Karman, and giving a brief description of her as a female with light eyes, the big one being a male with a massive head, and one of the dogs being a darker colour which she had not seen before. She did not initially name the other dogs. In the same part of the conversation she named ‘Sam’ as the owner of Karma whilst again pointing to Ms Lister’s Unit, and then describing them has having been taken around the corner.
  8. [99]
    That initial interview ended after just under nine minutes with Mr Brown allowing Ms Flower to take her dog to the veterinarian.
  9. [100]
    There is then body cam footage of a second interview with Ms Flower, that occurring on 24 May 2019 at 2:55pm.[70] It is a relatively lengthy footage of just under 40 min. Within it, as is notable and relevant, Ms Flower specially describes and names ‘Sam’ and ‘Tyson’, stating that Sam was in her Unit and describing herself as calling out to them to get their dogs saying that Tyson was laughing when he was walking across the road. She then described the involvement of Tyson in breaking up the dog fight, and later her observation of Sam and Tyson taking the dogs back to Ms Lister’s Unit. She also recounts having heard Sam calling out to one of the dogs using the name Chocolate. Ms Flower then once again describes her observation of Sam and Tyson walking the dogs around the corner.
  10. [101]
    Her statement as evidence in chief and her evidence under cross-examination is consistent with what she had to say in those interviews. As I noted it in paragraph [73] herein, whilst Ms Flowers referred to ‘Sam’, during the hearing she confirmed that it was Ms Lister to whom she was referring. I did not observe anything in either of those video recorded interviews that suggested to me Ms Flower was in any way fabricating her statement as to the involvement of Sam and Tyson nor their presence at Ms Lister’s Unit at the time of the Attack.
  11. [102]
    Whilst Ms Hardy did not name Ms Lister or Tyson in her statement, the facts as she described them therein are consistent with the description of events given by Ms Flower. This leads me to the conclusion that I can accept, in the absence of any challenge to it, the plausibility of Ms Flower’s evidence as being correct.
  12. [103]
    As to the evidence of Mr Haigh, I accept that it suggested some alternative scenario given his reference to a blond woman and a Jack Russel dog, but I do not give it any weight. Overall, as I listened to Mr Haigh, it seemed to me that he could not readily recall the facts as he observed them given the passage of time as well as not being that entirely clear in the first instance of what he observed.
  13. [104]
    For completeness, I should deal with the submission made by Ms Laskus concerning the so called evidence of Ms English and the unidentified person about wandering dogs. Neither of these persons gave statements in this proceeding nor were they presented as witnesses. Thus, the so called evidence could not be tested. It is of no assistance to me and I do not accept the submission.
  14. [105]
    In terms of all of the evidence to which I have just referred in these paragraphs, I am unable to be persuaded the case that Ms Peterson and Ms Lister put forward is the correct one. Whilst it is to be accepted that on Mr Brown’s attendance at Ms Peterson’s property at 3:30 pm on the day in question the three dogs were chained up at the rear of her house, there is simply no evidence that they were chained up there at the time the Attack occurred. There is nothing more than the bare assertion by both applicants that they were chained up when it is said they departed the house before 10:30 am.
  15. [106]
    Moreover, there is too much inconsistency within Ms Peterson’s and Ms Lister’s own statements given at various times since the Attack, and in these proceedings, for me to conclude that which they say is an accurate statement of that which occurred. That being said, I do not accept it and find that the facts as they were described by Ms Flower is an accurate reflection of the Attack and the circumstances at that time.
  16. [107]
    Accordingly, it leads me to the conclusion that the three dogs, Karma, Panic, and Chocolate were the attacking dogs.
  17. [108]
    Before then concluding with a short discussion on the caselaw to which Ms Laskus referred me in her closing for the applicants, I make two brief general observations as to issues that arose in the material that was before me.
  18. [109]
    At various times the dogs were referred to as Pit Bulls, or Pitties. I do not place any emphasis on this description nor draw from it a conclusion that the dogs were not properly identified. It is my experience that American Staffordshire Terriers are often referred to as Pit Bulls, the latter being a shorthand descriptor of an American Pit Bull Terrier. They are however distinctly different breeds, such as is expressly recognised in s63A (2) and (3) of the Animal Act.
  19. [110]
    There is also the issue that Ms Laskus raised in her oral closing as to the asserted evidence of the female person collecting the dogs from the Attack being described as ‘blond’, and accordingly it could not have been Ms Lister.
  20. [111]
    Whilst I have already noted this being part of Mr Haigh’s evidence and dealt with it earlier in these reasons, I also note from my viewing of the body cam footage that a similar statement was made by persons identified as Mr and Mrs English when Mr Brown visited them as part of his investigation. However as I have also noted it, neither Mr or Mrs English were presented as witnesses in the hearing, nor is there any signed Dog Attack Statement of Fact given by them in the respondent’s material in either proceeding.
  21. [112]
    If the applicants wanted me to take such ‘evidence’ into account, then they should have presented Mr and/or Mrs English as witnesses, either by invitation of by applying for  a Notice to Appear to be issued by this Tribunal compelling them to attend, such being a step taken by the applicants in terms of Mr Brown and Mr Buckenham. In the absence of any such evidence I do not give the untested comment noted in the video footage nor the submission any weight.
  22. [113]
    I thus now conclude by turning to the caselaw to which Ms Laskus referred me. With the utmost of respect to Ms Laskus, it does not assist the applicants’ cases.
  23. [114]
    The first is an unreported decision of Magistrate O'Driscoll in Rockhampton Regional Council v Mathew Tonkins Rock 1694/15 delivered on 14 December 2015. Ms Laskus specifically refers to a passage in the learned Magistrate’s reasons given therein wherein the following was stated.

The identification process supports a finding that the victim may have been guided in the identification of the two suspect dogs, and any suggestion of guiding the victim in making a positive identification is inappropriate.

I consider the process adopted by the Officers of the Rockhampton Regional Council appears to be fatally flawed.

  1. [115]
    That decision and the Magistrate’s reasoning in it is irrelevant to the current proceedings. It dealt with an application, determined on a vior dire, to exclude evidence during the course of a trial in respect of charges arising under the Animal Act. The facts therein are entirely different to the facts of these proceedings and thus the case is distinguishable.
  2. [116]
    Ms Laskus also referred to the decision in Puopolo v Brisbane City Council [2020] QCAT 442.[71] She specifically refers me to paragraph [37] of the learned Member’s reasons where Member Kent stated the following under the hearing ‘Summary’.

To conclude, I return to my initial comment that the central issue in this matter is the identity of the dog …. For the reasons I have already stated I do not find that the identification of Zizou as the dog is so clear cut that I can be reasonably satisfied to the standard required that Zizou is the dog who attacked one or both of the women.

  1. [117]
    As I understand this passage, the reasons to which the learned Member refers are those which are given in paragraphs [20] to [29] therein wherein the evidence before the Tribunal was discussed. It is unnecessary to extensively review that which was stated therein. It is sufficient to merely note that the evidence before the Tribunal on that occasion was such that no one person could readily identify the dog in question with certainty, and moreover that one method of investigation employed by the Council on that occasion was to show photographs of dogs to the victims of the attack in an effort to obtain an identification of the dog in question. Those circumstances do not exist in the current proceedings. Once again the decision is distinguishable on its facts.
  2. [118]
    The other caselaw to which Ms Laskus made some general reference to passages of either dealt with issues of procedural fairness or other aspects of matters under the Animal Act that do not arise in these proceedings. Thus, I have not had regard to them.

Conclusion

  1. [119]
    In all respects, having considered all the evidence to which I was referred during the hearing, I am unable to be satisfied on the balance of probabilities that the three dogs in question, namely Karma, Panic and Chocolate, were not involved in the Attack. To the contrary, the weight of the evidence presented is against that proposition and on the balance of probabilities I accept the proposition that they were the attacking dogs.
  2. [120]
    In my opinion, whilst a large proportion of the evidence went well beyond the matter in issue, such being solely the identification of the three dogs, the evidence as I have discussed it in these reasons is sufficient for me to reach such a conclusion. In doing so I considered the seriousness of the allegations made, the inherent likelihood or unlikelihood of the occurrence of the events as they have been described and I have discussed, and the gravity of the consequences flowing from the decisions that I must ultimately reach on the occurrence of those events.[72] I was satisfied to the requisite standard that Karma, Panic and Chocolate were the attacking dogs, and accordingly I find that the Decisions were the correct and preferable decisions.
  3. [121]
    There is no reason to disturb those Decision. Orders will be made confirming them.

Footnotes

[1]  Directions in GAR 346-19 and GAR 395-19 dated 27 November 2020. See also Directions 20 January 2020 in GAR 395-19 wherein a similar order was made but not recorded as being by consent.

[2]  Ex. 1 is the Council’s bundle of material in GAR 395-19. Ex. 2 is the Council’s bundle of material in GAR 346-19. Ex’s 3 to 15 were received and read as relevant to both matters even though some of the documents are identified as being for only one of the two matters. This is because identical documents are to be found on the file for the other matter and thus only one of them was made an exhibit for simplicity and to avoid unnecessary duplication.

[3]  Within these reasons I have not shown the street addresses nor the road names of the places of residence of Ms Flowers, Ms Lister, or Ms Peterson. I have done so for the purposes of protecting their privacy in that regard. Where an address or a street/road name appears in the evidence presented to me in the hearing that I have extracted in these reasons, I have simply inserted in brackets the word [street] or [address] in replacement of the specific information.

[4]  See the Veterinary Certificate dated 23 May 2019 issued by Dr Susan O'Connor – Ex. 1 Doc 14 – Ex. 2. Doc 15.

[5]  See ‘Local Laws Service Request – 22 May 2019’ and ‘Summary Report for Dog Attack’ in the Respondent’s bundles of documents – Ex. 1 Doc’s 1 & 2; Ex. 2 Doc’s 1 & 2.

[6]  Ex 1 Doc 3; Ex 2 Doc 3.

[7]  Ex 1 Doc 4; Ex 2 Doc 4.

[8]  Ex 2 Doc’s 5 & 6.

[9]  Ex 1 Doc 5.

[10]  Ex 1 Doc 6; Ex 2 Doc 7. 

[11]  Ex 1 Doc 17; Ex 2 Doc 19.

[12] Brisbane City Council v Roy [2020] QCATA 147, [20] to [23]. The footnote references are as contained therein at footnotes 25 to 34 but renumbered herein to reflect the sequence of footnotes in these reasons.

[13] Animal Act s. 60.

[14]  Ibid s. 89(1).

[15]  Ibid s. 61(a).

[16]  Ibid s. 89(2).

[17]  Ibid s. 89(3).

[18]  Ibid s. 89(7).

[19]  Ibid. Schedule 2.

[20]  Ibid. s. 90(1).

[21]  Ibid. s. 94(1).

[22]  Ibid. s. 94(2).

[23]  Ibid s. 187(2) read in conjunction with s.188 therein.

[24]  This is known as ‘Internal Review’. See Chapter 8 Part 1 of the Act.

[25]  This is known as ‘External Review’. See Chapter 8 Part 2 of the Act.

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

[27] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s.21.

[28]  QCAT Practice Direction No. 3 of 2013 – para 5(d).

[29] Queensland Civil and Administrative Tribunal Act 2009 (Qld) – s.24(1).

[30]  Emphasis is as per the original.

[31]  Emphasis is as per the original.

[32]  Ex 1 Doc 2; Ex 2 Doc 2.

[33]  Their application was filed 13 November 2021 with an order made by this Tribunal on 19 November 2021 requiring his attendance.

[34]  Ex 4.

[35]  Ex 4 para 11.

[36]  Ex 4 para’s 14 to 23.

[37]  Ex 4 para 15.

[38]  Ex 5.

[39]  Ex 4 para 25.

[40]  Ex 8.

[41]  Ex 8 para’s 22 to 29.

[42]  Ex 4 para 8.

[43]  Ex 8 para 9.

[44]  Ex 4 para 17 to 24.

[45]  Ex 8 para’s 22, 23, 26 and 27.

[46]  These appear as the 1st and 5th bullet points on the second page of a letter shown to have been signed by Ms Peterson and sent to the respondent as part of her Review Request - see Ex 1 Doc 7. The exact same statements appear as bullet points in a letter shown to have been signed by Ms Lister and sent to the respondent as part of her Review Request - see Ex 2 Doc 8.

[47]  Ex 1 Doc’s 12 and 13; Ex 2 Doc’s 13 and 14. Whilst these statements were not directly referred to during the hearing they form part of the respondent’s material to which I was referred overall. Moreover, at no time did Ms Laskus seek to have either of the applicants recant these statements or otherwise correct them in any way. Accordingly I infer that in the absence of such, and in the absence of any submission being made by Ms Laskus as to why I should not have regard to them, it seems to me that it is open for me to have regard to them.

[48]  Ex 4 para’s 9 to 15 and 33; Ex 8 para’s 15 to 18.

[49]  Ex 3.

[50]  Ex 9. Whilst the USB stick was tendered, Ms Laskus did not seek to have me view any part of it during the hearing, but rather it was left to me to view later after the hearing during my consideration of the evidence.

[51]  Ex 12.

[52]  Ibid para 3.

[53]  Ibid para 4.

[54]  Ex 7.

[55]  Ex 10.

[56]  Ex 1 and Ex 2.

[57]  Ex 11. This appears as Doc 10 in Ex 1 and Doc 11 in Ex 2. 

[58]  Ex 13. This appears as Doc 16 in Ex 1 and Doc 17 in Ex 2.

[59]  Ex 14. This appears as Doc 8 in Ex 1 and Doc 9 in Ex 2.

[60]  The address given is that of Ms Flower’s.

[61]  The street name given is the street in which Ms Peterson resides.

[62]  Ibid.

[63]  As I understand this is the ‘Shaun’ Ms Flowers referred to in her statement as I have extracted it earlier.

[64]  I pause here to note the following for completeness. I was informed at the start of the hearing by Mr Buckenham that Mr Tuckwood could not be located and accordingly he would not appear as a witness. He also informed me that Ms Nelson would be called as a witness and sought to have her give evidence by phone. I allowed that to occur, however later in the day when Ms Nelson called on the telephone to give evidence she refused to participate. Mr Buckenham did not press to have her compelled to give evidence and abandoned efforts to have her do so.

[65]  Ex 15.

[66]  Whilst it was said to appear in the footage, I could not locate it on my viewing of that footage.

[67]  For example – the time shown on Mr Brown’s body cam footage is set as a 24 hour clock but out by 12 hours, and when Mr Brown states the time at the start of each recording he does so in 24 hour time but is incorrect in what he states.

[68]  See the digital file in Ex 9 entitled ‘Interview Cameron (sic) Peterson Attacking Dog Owner.’

[69]  Ex 9 – Digital file entitled “Interview Melissa Flower”.

[70]  Ex 9 – Digital file entitled “Interview Melissa Flower Victim Dog Owner”.

[71]  Ms Laskus incorrectly cited it as ‘422’ in her written closing.

[72]  In my opinion the Briginshaw standard has been met. See Briginshaw v Briginshaw (1938) 60 CLR 336, 361-2.

Close

Editorial Notes

  • Published Case Name:

    Petersen v Rockhampton Regional Council; Lister v Rockhampton Regional Council

  • Shortened Case Name:

    Petersen v Rockhampton Regional Council; Lister v Rockhampton Regional Council

  • MNC:

    [2022] QCAT 43

  • Court:

    QCAT

  • Judge(s):

    Member Taylor

  • Date:

    09 Feb 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
Briginshaw v Briginshaw (1938) 60 C.L.R 336
2 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Brisbane City Council v Roy [2020] QCATA 147
3 citations
Jump To
Cite 1 - [2020] QCATA 147
Cite 2 - [2020] QCATA 147
Cite 3 - [2020] QCATA 147
Puopolo v Brisbane City Council [2020] QCAT 442
2 citations
Jump To
Cite 1 - [2020] QCAT 442
Cite 2 - [2020] QCAT 442

Cases Citing

Case NameFull CitationFrequency
Lawson v Tablelands Regional Council [2025] QCAT 642 citations
Peterson v Rockhampton Regional Council [2023] QCAT 14617 citations
Peterson v Rockhampton Regional Council [2023] QCATA 5017 citations
1

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