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Smiley v City of the Gold Coast[2022] QCAT 445

Smiley v City of the Gold Coast[2022] QCAT 445

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Smiley v City of the Gold Coast [2022] QCAT 445

PARTIES:

amelia smiley

(applicant)

v

city of the gold coast

(respondent)

APPLICATION NO/S:

GAR124-20

MATTER TYPE:

General administrative review matters

DELIVERED ON:

5 January 2022

HEARING DATE:

29 April 2021 and 30 April 2021

HEARD AT:

Southport

DECISION OF:

A/Senior Member Howe

ORDERS:

The decision made on 4 February 2020 by Gold Coast City Council declaring the dog Bayne a dangerous dog is set aside.

CATCHWORDS:

ANIMALS – VARIOUS STATUTORY PROVISIONS – REGULATION OF COMPANION ANIMALS – OTHER MATTERS – where a dangerous dog declaration was made following complaints made that a dog had killed another animal and had caused fear to people – where on internal review of that decision the regulated dog declaration was sustained but the dog declared a menacing dog – whether a wallaby within the fenced area of the dog owner’s home was an animal excluded from protection under the Animal Management (Cats and Dogs) Act 2008 – where evidence supporting the complaint that the dog attacked another animal was lacking – where the complaints that the dog caused fear to people were not made out – whether the fear claimed to have been experienced was fear within the meaning of s 89(2) of the Animal Management (Cats and Dogs) Act 2008

GENERAL ADMINISTRATIVE REVIEW – JURISDICTION – where there was no delegated authority to the internal review officer to make the internal review decision – whether the Tribunal had jurisdiction to conduct external review

Animal Management (Cats and Dogs) Act 2008 (Qld) s 89, s 90, s 186, s 194, s 196

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 17

Nature Conservation (Animals) Regulation 2020 (Qld) s 19, Schedule 1 s 48

Acting Senior Constable Christopher Lee Wallis v Acting Deputy Commissioner D A (Tony) Wright & Anor [2019] QCAT 342

Briginshaw v Briginshaw (1938) 60 CLR 336

Brisbane City Council v Roy [2020] QCATA 147

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

JM Kelly (Project Builders) Pty Ltd v QBSA [2013] QCAT 502

Martinez v Minister for Immigration and Citizenship and Another [2009] FCA 528

Williams v Ray White Cairns Beaches [2016] QCATA 16

APPEARANCES & REPRESENTATION:

 

Applicant:

H Zabusky

Respondent:

N Hatcher, Woods Hatcher Solicitors

REASONS FOR DECISION

  1. [1]
    Amelia Smiley owns a dog called Bayne, an eight year old Rottweiler. She lives at Tallai on acreage.
  2. [2]
    On 4 February 2020 the Gold Coast City Council (‘the Council’) issued a regulated dog declaration following complaints by Ms Smiley’s neighbour, Mr Meinhold, about Bayne killing wallabies on Ms Smiley’s property. Bayne was declared a dangerous dog.
  3. [3]
    Ms Smiley sought internal review of that decision, but on 2 March 2020 the internal review decided Bayne should be declared a regulated dog, but a menacing dog rather than dangerous.
  4. [4]
    Ms Smiley has now sought external review of the internal review decision in the Tribunal.

The accusations against Bayne

  1. [5]
    On 28 October 2019 the Council issued a proposed regulated dog declaration to Ms Smiley based on four alleged incidents involving Bayne as follows:

On 23 August 2019 at approximately 10.30am Bayne acted in a way that caused serious injury to a wallaby;

On 26 July 2019, on 24 September 2019 and on 26 September 2019 Bayne acted in a way that caused fear to a person.

  1. [6]
    Submissions were made by Ms Smiley but on 4 February 2020, the regulated dog declaration was issued declaring Bayne a dangerous dog.
  2. [7]
    As stated, Ms Smiley applied, as was her right, for internal review of that decision. An internal review decision was made on 2 March 2020 and the reasons for the decision referred, as did the original decision, to various other matters of complaint (by the same complainants) about the dog attacking wallabies. The additional complaints concerned incidents said to have occurred on 24 July 2019, 26 September 2019 (additional to the complaint about causing fear to a person), 22 July 2019 and 30 September 2019.
  3. [8]
    It seems those additional complaints, never stated to be bases for making the proposed regulated dog declaration, were at least in part relied on in making both consequent regulated dog declarations.
  4. [9]
    By s 90(1)(d) of the Animal Management (Cats and Dogs) Act 2008 (Qld) (‘the Act’), if a local government proposes to make a regulated dog declaration, menacing or dangerous, it must give any owner of the dog a proposed declaration notice stating, amongst other things, reasons for the proposed declaration. By s 90(1)(e), the owner is then entitled to make representations why the proposed declaration should not be made.
  5. [10]
    The proposed regulated dog declaration identified the reason for making a declaration as the four incidents referred to at paragraph [5] above.
  6. [11]
    Section 89(1) of the Act  provides that a local government may make a dangerous dog declaration or a menacing dog declaration by complying with the requirements of Chapter 4 Part 4 of the Act.
  7. [12]
    I might note, s 89(1) permits a council to a discretion whether to pursue the declaratory process in Part 4 of the Act or not.[1] The complaint might be assessed as unmeritorious or trivial or lacking bona fides.
  8. [13]
    If it is to be pursued, then s 89(2) and s 89(3) respectively apply to both empower and limit circumstances whereby a declaration that a dog is a dangerous dog or a menacing dog may be made.
  9. [14]
    It is essential from the outset however that a particular incident where a dog has purportedly seriously attacked, or attacked but not seriously, a person or another animal, or acted in a way to cause fear to either a person or another animal, is identified.
  10. [15]
    If such an incident is identified and the council determines the circumstances, if made out, merit a regulated dog declaration, then the process set out in Part 4 of the Act is engaged:

The steps required to be undertaken in deciding whether to make a regulated dog declaration under Chapter 4, Part 4 of the AM Act include the local government giving to the owner of a dog a proposed declaration notice, the dog owner being given the opportunity to make written representations and provide evidence, the local government considering any representations and evidence by the dog owner and the local government deciding whether to make a regulated dog declaration.[2]

  1. [16]
    In the matter at hand, only those incidents identified in the proposed regulated dog declaration of 28 October 2019 followed the prescribed process. As such, only those instances will be the subject of this external review by the Tribunal. The required process has not been followed with respect to the other incidents added “to the mix” over the course of first the original decision process, and then the purported internal review process, of which more is said below.
  2. [17]
    The issue of relevant incidents the subject of external review was raised with the parties on the first day of hearing.[3] The parties were reminded that the relevant incidents were those identified in the proposed regulated dog declaration. Despite that direction, the approach by the parties throughout the hearing was broad brush and reflected confusion about what was and was not relevant.

No delegation

  1. [18]
    At hearing, the issue of the validity of the power of both the original decision maker and the review officer was raised. Mr Soloai, the internal review officer, tendered a copy of his delegation of authority.[4]
  1. [19]
    After the hearing and after final submissions in writing were made by the parties, Mr Hatcher for the Council advised, correctly, by further submission that a further search of the Council’s records revealed Mr Soloai did not hold the requisite delegation to make the internal review decision on 20 March 2020 at the time.
  1. [20]
    Council submits that presents no problem here. Council submits that s 186 of the Act requires the chief executive to decide a general review application within 20 days after receiving it and then give notice of the review decision within 10 days thereafter. If no review notice is given within those 10 days, the chief executive is taken to have made a decision confirming the original decision. The Council submits this matter should be treated as if no notice of a review decision has been given within time and therefore the original decision should be taken as confirmed.
  2. [21]
    Section 17 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) provides:

Generally

(1) The tribunal’s review jurisdiction is the jurisdiction conferred on the tribunal by an enabling Act to review a decision made or taken to have been made by another entity under that Act.

(2) For this Act, a decision mentioned in subsection (1) is a reviewable decision and the entity that made or is taken to have made the decision is the decision-maker for the reviewable decision.

(underlining added)

  1. [22]
    In JM Kelly (Project Builders) Pty Ltd v QBSA [2013] QCAT 502, Judge Horneman-Wren considered a challenge to the Tribunal’s jurisdiction to review a decision of the Queensland Building Services Authority (as then named) to direct a builder to rectify defective building work where the decision was said to be tainted by denial of natural justice. The builder contended the decision was invalid, void and of no legal effect because of that and therefore the Tribunal lacked jurisdiction to deal with the substantive review application.
  2. [23]
    Judge Horneman-Wren found the Tribunal had jurisdiction. He said:

[37] Where, in contrast, the Tribunal is exercising review jurisdiction, the only matter, the only jurisdictional fact, of which the Tribunal need satisfy itself is the existence of a decision of a kind the Tribunal has power to review. Whether there is such a decision which falls within the Tribunal’s review jurisdiction is governed by the relevant statutes which confer the review jurisdiction on the Tribunal. It is a construction of those statutes which determines whether it is necessary that there be a valid decision made in a lawful exercise of the decision making power in order for the decision to be reviewable.

  1. [24]
    He went on to note:

[47] In Martinez v Minister for Immigration and Citizenship and Another, Rares J, after citing Lawlor and Zubair, said of a Tribunal’s power to review a decision which was affected by jurisdictional error:

The tribunal has power to cure a defect in the delegate’s decision once the tribunal’s jurisdiction has been invoked by an application for review: Zubair 139 FCR 344 at [32]. A party affected will elect to treat an administrative decision as valid, though erroneous, by exercising the right to have it reviewed by a second administrative body, in preference to exercising a right to have a court compel proper performance by the original authority of its duty. Such an outcome promotes administrative efficiency, provided that the party applying for the review subsequently receives a fair hearing by the second body. In that way, any defects in the process by which the original decision was reached are cured by the later determination on the administrative review or administrative appeal: Twist v Randwick Municipal Council (1976) 136 CLR 106 at 116 per Mason J.

  1. [25]
    After referring to s 17 of the QCAT Act he also said:

[50] The expression ‘decision’ is not otherwise defined by the Act. Nor does the Act explain the meaning to be given to the expression ‘made or taken to have been made’. In my view, the inclusion within the Tribunal’s review jurisdiction of decisions taken to have been made under an enabling act (sic) recognises that under some enabling acts (sic) there may be provisions which deem a decision to have been made in circumstances in which no decision has in fact been made.

  1. [26]
    Mr Hatcher for the Council contends that that deeming provision exists here in s 186 of the Act:

186 Other internal review decisions

(1) The chief executive officer of a local government must, within 20 days after receiving a general review application made under section 183—

(a) conduct an internal review of the original decision the subject of the application; and

(b) make a decision (the internal review decision) to—

(i) confirm the original decision; or

(ii) amend the original decision; or

(iii) substitute another decision for the original decision.

…

187 Notice of designated decision or internal review decision

…

(2) The chief executive officer of a local government must, within 10 days after making an internal review decision, give the applicant notice (also the review notice) of the internal review decision.

…

(5) If the chief executive officer of the local government does not give the review notice within the 10 days, the chief executive officer is taken to have made a decision confirming the original decision.

  1. [27]
    I determine the Tribunal is empowered to conduct external review of the original regulated dog declaration decision made on 4 February 2020, despite the failure of the internal review process.
  2. [28]
    The Act clearly recognises that there may be decisions made (or not made) by the Council at the internal review stage which are intended to proceed to external review in the Tribunal. As explained in Martinez v Minister for Immigration and Citizenship and Another,[5] a fair Tribunal process will cure any defect in the Council delegate’s authority to make the decision under review.
  3. [29]
    I note a similar conclusion was reached in Acting Senior Constable Christopher Lee Wallis v Acting Deputy Commissioner D A (Tony) Wright & Anor [2019] QCAT 342.
  4. [30]
    I turn to consider the relevant incidents concerning Bayne identified in the proposed regulated dog declaration notice. I consider the claimed attack on a wallaby first.

Incident of 23 August 2019 – Bayne acted in a way that caused serious injury to a wallaby

  1. [31]
    On 23 August 2019 Ms Smiley’s neighbour, Mr Meinhold telephoned the Council to complain about Bayne mutilating a wallaby near a dam on Ms Smiley’s acreage property (4.96 ha) of which something less than half is fenced.
  2. [32]
    By s 89(2) of the Act a dangerous dog declaration may be made for a dog only if the dog:

(a) has seriously attacked, or acted in a way that caused fear to, a person or another animal; or

(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.

  1. [33]
    By s 89(3) a menacing dog declaration may be made for a dog only if a ground mentioned in s 89(2) exists for the dog, but the attack was not serious.
  2. [34]
    Section 89(7) provides that “seriously attack means to attack in a way causing bodily harm, grievous bodily harm or death”.
  3. [35]
    A preliminary issue for determination that arose at the hearing was whether an attack on a wallaby falls within the scope of the provisions.

Attack another animal

  1. [36]
    Mr Zabusky for Ms Smiley submits s 194(2) of the Act is relevant:

Relevant person must ensure dog does not attack or cause fear

(1) A relevant person for a dog must take reasonable steps to ensure the dog does not attack, or act in a way that causes fear to, someone else or another animal.

…

(2) In this section—

animal does not include vermin that are not the property of anyone.

Examples of vermin that are someone’s property—

• a pet mouse or guinea pig

• vermin that are protected animals under the Nature Conservation Act 1992 (See section 83 of that Act.)

  1. [37]
    Section 194 is to be found in Part 1 of Chapter 9 of the Act. Chapter 9 is headed Miscellaneous provisions, and Part 1 entitled General offences.
  2. [38]
    Section 195 deals with a situation where a person allows or encourages a dog to attack.
  3. [39]
    By s 196(1)(b) it is a defence for an offence under s 194 or s 195 for a defendant to prove:

for an attack on an animal, the dog was engaged in hunting the animal on private property when the offence happened;

  1. [40]
    These provisions however deal with criminal liability of an owner of the dog or a person responsible for the dog where there is an attack by the dog. There is no obvious extension of their application to Part 4 of the Act, regulated dog declarations.
  2. [41]
    The defence offered in s 196(1)(b) responds to the prosecution of an offence under s 194 or s 195.
  3. [42]
    Even if the definition of animal in s 194 applied in considering Part 4 declarations, wildlife is protected under the Nature Conservation Act 1992 (Qld) (‘NCA’), save culling permits may be given to landholders to control kangaroos and wallabies.
  4. [43]
    Section 83 of the NCA defines protected animal as an animal that is prescribed under the NCA as threatened, near threatened or least concern wildlife.
  5. [44]
    By s 80 NCA a regulation may prescribe native wildlife as least concern wildlife if the wildlife is common or abundant and is likely to survive in the wild.
  6. [45]
    Section 19 of the Nature Conservation (Animals) Regulation 2020 provides:
  1. (1)
    For section 80 of the Act, an animal mentioned in schedule 1, part 2, division 7, subdivision 1 is prescribed as least concern wildlife.
  1. [46]
    Schedule 1, part 2, division 7, subdivision 1, s 48 provides:

Mammals

(1) A native mammal, other than the following—

(a) a mammal prescribed as another class of wildlife;

(b) a dingo.

….

  1. [47]
    Certain types of wallabies are prescribed as another class of wildlife, namely vulnerable wildlife, in schedule 1, part 2, division 5, subdivision 1, but there is no suggestion the wallabies in question here are any such, and Mr Fam, the Council’s Animal Management Inspector who took the complaint from Mr Meinhold and made the original regulated dog declaration decision described the wallabies as swamp wallabies.
  2. [48]
    I determine that the provisions of Part 4 of the Act extend to apply to an attack on an animal such as a wallaby.
  3. [49]
    I turn to consider the circumstances of the incident said to have occurred on 23 August 2019.

Attacked a wallaby

  1. [50]
    In late September 2019 Mr Meinhold telephoned the Council to complain about Bayne “mutilating” a wallaby near a dam on Ms Smiley’s property. The claimed attack occurred on 23 August 2019 inside the fenced land. Bayne is kept inside the fenced area.
  2. [51]
    Mr Meinhold further complained to the Council that Ms Smiley’s partner, Mr Zabusky, had “disposed” of it “down the dam’s bank.” He said it was not dead, but dying. He said he took photographs of the incident which he provided to the Council.
  3. [52]
    There are three photographs. One shows a wallaby lying on the ground.[6] There are two showing Mr Zabusky dressed in a dressing gown carrying a wallaby by the tail inside the fenced area walking towards the dam which is separately fenced off.[7] Bayne is not to be seen in any of the photographs. Nor does the wallaby seen in the photographs bear any apparent sign of injury. There is no blood visible on the wallaby nor other evidence of trauma evident in the photographs.
  4. [53]
    Ms Smiley says in a statement of evidence that she doesn’t recall any incident on 23 August 2019 involving Bayne killing a wallaby. Having said that, she did recall Mr Meinhold shouting out one day, calling out her name and shouting that Bayne had killed a wallaby.  She asked Mr Zabusky to go and see what was happening. When Mr Meinhold was shouting out she said Bayne was with her near the pool at her home.
  5. [54]
    Her evidence was that the fence around her property generally kept the wallabies out. None of her neighbours have fences however, and wallabies were commonly found on their properties. She fenced the dam off as well for safety reasons.
  6. [55]
    She said Bayne was 6 years old at the time and suffered from arthritis and had limited ability to run and walk even on “plain grounds”.[8]
  7. [56]
    She says Bayne has never killed any wallabies. She maintained the complaint was made by her neighbour, Mr Meinhold, to vex and harass her.
  8. [57]
    Mr Zabusky, Ms Smiley’s partner, also gave evidence at the hearing. He said that he was upstairs in the house when Ms Smiley called him down. He found her standing near the pool with Bayne. Mr Meinhold was shouting out. He went to see what he was shouting about. He saw Mr Meinhold standing inside Ms Smiley’s property. The gate between their properties was open; Mr Meinhold was holding an Ipad standing over a wallaby, shouting out loudly; Mr Zabusky saw no injury to the wallaby.
  9. [58]
    Mr Zabusky agreed he had not put this evidence to Mr Meinhold in cross-examination, however I note the same claim about Mr Meinhold going onto Ms Smiley’s property holding a tablet and there being no signs of injury to the wallaby were made by Ms Smiley in written statements to the Council when responding to the proposed regulated dog declaration. Indeed, they are to be found in the Council’s s 21 material[9] filed in the proceeding.[10] Mr Meinhold had every opportunity to address the matter in his statement of evidence filed prior to hearing if he challenged the accuracy of the allegations, which he did not.
  10. [59]
    The metadata extracted from one of the photographs offered by Mr Meinhold in support of his claim that he photographed Bayne mutilating the wallaby shows the photograph was taken on 23 August 2019 on an Apple Ipad Air at 7.55am.[11] I find that on 23 August 2019 Mr Zabusky responded to shouts from Mr Meinhold and found the latter standing inside Ms Smiley’s property over or near the wallaby the subject of complaint, holding an Ipad.
  11. [60]
    Ms Smiley and Mr Zabusky said Bayne did not attack any wallaby on their property on the day in question.[12]
  12. [61]
    Mr Meinhold’s original written complaint to the Council is attached to a statement of evidence given by him. The complaint was that on 23 August 2019 “… the neighbour’s Rottweiler once again cornered, snared and left mutilated a wallaby that was attracted by their dam, a large watering hole…. I recorded this slaughter at the time and requested the neighbour for his assistance.”
  13. [62]
    The photographs taken by Mr Meinhold at the time of the incident offer small support to his claim of seeing the dog attack the wallaby. The photographs are simply photographs of a dead, unmarked wallaby. Certainly, they do not support Mr Meinhold’s claim that he saw Bayne kill the wallaby and that he recorded that “slaughter” in the photographs.
  14. [63]
    There was evidence given by both Mr Meinhold and his daughter, Ms York, at the hearing about the dog’s aggression guarding its “kills” and its threatening behaviour if someone approached it in such circumstances. I address that further below, but that evidence seems entirely inconsistent with the scenario painted by Mr Meinhold concerning the incident of 23 August 2019 – of him seeing the dog attack the wallaby but then prepared to enter the closed yard next door to stand over the animal, shouting out, but all absent the dog.
  15. [64]
    The standard of proof applicable in matters such as this is the civil standard of balance of probabilities, which itself is a sliding scale[13] depending on the seriousness of the allegation, the likelihood of an occurrence and the gravity of the consequences flowing from a finding. As explained by Dixon J in Briginshaw v Briginshaw:[14]

The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty… Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.[15]

  1. [65]
    The making of a regulated dog declaration is a matter which has serious consequences, both as regards the animal concerned and its owners.
  2. [66]
    I am not satisfied on the balance of probabilities that the incident claimed to have occurred on 23 August 2019 did occur. I am satisfied that there was a dead wallaby found on Ms Smiley’s property that day, but not satisfied that the dog attacked and killed it.
  3. [67]
    Mr Meinhold was the only person who claimed to see the attack. The photographic evidence submitted in support of his claim does no such thing. The behaviour of the dog leaving behind a fresh “kill” and Mr Meinhold’s own behaviour in entering the property immediately following that to stand over the animal is an unexplained and significant inconsistency with other evidence given by both Mr Meinhold and his daughter as set out below.

Incidents of 26 July 2019 and 24 September 2019

  1. [68]
    After Mr Meinhold made his complaint about Bayne killing a wallaby on 23 August 2019, his daughter, Ms York, also complained to the Council about two other incidents, one on 26 July 2019 and another on 24 September 2019.

The incident of 26 July 2019

  1. [69]
    Ms York made a written statement to the Council that on:

26th July and 27th July 2019 I took photographs of the Rottweiler guarding the boundary fence and rushing at it, towards me, also photos of the dog eating the wallaby. I dropped the camera as I feared again for my life, it was quite vicious showing his teeth, barking and snarling with his heckles (sic) up looking very strong and in control as he lunged at me. He was very fast and powerful.

26th July I sent a text to Wildcare stating that the neighbours Rottweiler had been aggressive thru (sic) the fence and I was worried it would kill my two poodles and injure myself as he was very territorial and had killed an animal only meters (sic) away from the boundary.

I had to visit my doctor over the stress of the tragic fearful event.[16]

  1. [70]
    According to Ms York there was a dead wallaby lying within metres of the dividing fence. Bayne was eating it. She approached taking photographs. Apparently she had her own dogs, poodles, with her at the time.
  2. [71]
    The dog’s reaction would surely not be a surprise to many people. Her actions were clearly likely to provoke an angry response from many, if not most, dogs and her behaviour was no matter of naivety on her part.  Ms York was able to identify at hearing that behaviour by Bayne and describe it as “resource guarding an animal he has learned to kill and the body of meat is in front of him”.[17]
  3. [72]
    I conclude she knew that advancing towards the feeding dog as she did was more than likely to provoke a negative response from the dog, which response she now criticises and forms the substance of her complaint.
  4. [73]
    One might query, in this day of mobile telephones possessing wonderful photographic qualities, why she thought it necessary to approach the dog so closely she triggered the “resource guarding” reflex she was clearly familiar with.
  5. [74]
    She made no complaint to the Council about the incident at the time, but only after her father made the complaint in late September about Bayne “mutilating” the wallaby on 23 August 2019.
  6. [75]
    That was also when she complained about the incident on 24 September 2019.

The incident of 24 September 2019

  1. [76]
    The circumstances of that further incident she described in a statement to the Council as follows:

On 24th September 2019 the Rottweiler lunged at me thru (sic) the fence as I was walking along the road near the neighbour’s tennis court at approx. 7am I also witnessed it chasing another small wallaby across their yard.

I am terrified that every time I visit my parents there is the aggressive dog threatening the way I go about my lifestyle thru (sic) a mesh fence which has many holes throughout the 10 acres property with undulating hills and dam overflows. I cannot walk my dogs along the fence line on the Panorama Road for fear of the dog getting out. I have to minimise my visits, which is very distressing considering my elderly parents are in need of help.[18]

  1. [77]
    There is no evidence from anybody else to suggest the fence was not adequate to contain Bayne. Ms Smiley said in cross-examination that the fence was in good condition.
  2. [78]
    Ms Spencer, another animal management officer employed by the Council, gave evidence at the hearing. She saw the fencing and reported it sound and adequate to contain Bayne. I prefer Ms Spencer’s professional assessment of the fencing to the evidence given by Ms York.
  3. [79]
    At hearing Ms York was asked why she was scared of Bayne. Her response was immediate and to the effect that he was a fearful animal when he was “resource guarding” meat (dead wallabies).
  4. [80]
    She was asked to clarify whether she held a general fear of the dog and she replied:

For the reason that this Rottweiler is inciting fear over the fence. When the gate’s open, while it’s able to kill these wildlife, if this dog was on a lead walking down the street, I wouldn’t be scared of this dog at all.

But this dog is not on a lead, this dog is in its yard with live meat that it is being allowed to eat.[19]

  1. [81]
    She also said she is more fearful of Bayne when she has her dogs with her.[20]
  2. [82]
    Ms York’s evidence at hearing was that on 24 September 2019, she did not have her dogs with her when she was walking on the other side of the road fronting Ms Smiley’s property when Bayne lunged at the fence towards her and then stood up on his back legs at the gate. Though the dog was inside its closed yard she said she was scared.
  3. [83]
    By s 89 of the Act a dangerous dog declaration may only be made where the dog has seriously attacked “or acted in a way that caused fear to, a person or another animal” and a menacing dog declaration in similar circumstances but where the “attack” was not serious.
  4. [84]
    Fear is no term of nicety or precision. The dictionary definition of fear includes from “a painful feeling of impending danger, evil, trouble…” to “anxiety; solicitude” or “reverential awe, especially towards God.”[21]
  5. [85]
    Here its meaning in the Act must be derived from the context in which it appears.
  6. [86]
    There are two grounds for making a dangerous dog declaration set out in s 89(2). One is a serious attack. The other is if the dog has acted in a way that caused fear to a person or animal.
  7. [87]
    Section 89(3) then goes on to explain circumstances where a menacing rather than dangerous dog declaration may be made. It refers to a ground mentioned in s 89(2). Section 89(3) refers to a ground mentioned in s 89(2). It says if a ground mentioned exists then the difference between circumstances where a dangerous rather than menacing dog declaration may be made is the serious of “the attack”.
  8. [88]
    Common to both grounds however, is therefore a necessary element of an attack.
  9. [89]
    The word “attack” is not defined in the Act. The dictionary meaning is again of limited utility, ranging from “… to set upon with force or weapons; begin hostilities against…” to “… criticism; abuse; calumny….”[22]
  10. [90]
    Each incident must be assessed according to its own facts, however what is clear is that fear absent some accompanying objectively identifiable circumstance of an “attack” will not trigger either a s 89(2) dangerous dog declaration, or a s 89(3) menacing dog declaration.
  11. [91]
    The objectively identifiable circumstance of an “attack” might be an attempted attack or behaviour by a dog which reasonably suggests an attack made either against a person or another animal.
  12. [92]
    Absent an attack, a mere frisson of excitement generated by a dog’s rowdy conduct, size, pugnacious behaviour or the anecdotal breed characteristics of a particular dog will not of itself suffice.
  13. [93]
    That construction accords with the purposes of the Act set out in s 3. By s 3(d) a purpose of the legislation is to promote the responsible ownership of cats and dogs. That stated purpose would be thwarted were responsible owners of a dog kept under control on their property behind adequate fencing to be penalised because somebody walking by claimed they experienced “fear” in result of a large dog barking loudly at them, or running abreast of them inside the fence line, regardless that on any objective assessment of the circumstances there was no attack and the dog was without capacity to cause harm.
  14. [94]
    I therefore turn to consider the complaints made by Ms York.
  15. [95]
    I conclude she had no reasonable basis to claim she feared an attack from Bayne in either incident. On both occasions the dog was safely fenced away. 
  16. [96]
    In one instance she was on the other side of the road and she knew the dog was behind its fence. I determine any fear she held was not a reasonable fear of being attacked.
  17. [97]
    In the other she purposely advanced towards the dog whilst it was eating to take photographs. She knew what its response would most likely be but ignored that. I do not accept she feared being attacked in that circumstance either. I find it more likely than not that she behaved as she did, advancing towards the dog whilst eating, because she knew she had the fence between herself and the dog and she felt safe from attack.
  18. [98]
    Neither charge is made out.

Incident of 26 September 2019

  1. [99]
    Similarly the incident on 26 September 2019 involved Mr Meinhold advancing towards Bayne whilst the dog was eating. Again the dog was within its fenced yard. Mr Meinhold was inside his yard. He wanted to take a video showing Bayne eating a dead wallaby. He said Bayne lunged at him in an aggressive manner which made him very fearful and caused him to move back from the fence.[23] He said the dog then returned to the dead wallaby.[24]
  2. [100]
    Mr Meinhold said at hearing he was approximately 3 to 4 metres away from the dog when it lunged at him. Again he proffered proof of what he described as the attack, this time on video. Again, there is no support given to his claim by the video he took. The video shows the dog eating and then a close-up view of the fence against which Mr Meinhold was standing, but no imagery (or sound) of the dog attacking or lunging towards Mr Meinhold.
  3. [101]
    Mr Meinhold was asked why he would be afraid of Bayne given he was standing outside the fence. Mr Meinhold said because he took a photograph of a savage dog eating a wallaby; it could have been his grandson who is six years of age that got into Ms Smiley’s property and who ended up with the same “molestation” and probably  even worse, death. The dog might get out and mutilate a child or passerby and Mr Meinhold and the Council were doing something about it.[25]
  4. [102]
    I repeat what I have said above about a person knowingly advancing towards an eating dog and that most people would understand the dog’s response as very predictable, according to Ms York, the “resource guarding” instinct.
  5. [103]
    But in any case, I do not accept Mr Meinhold was in fear of Bayne when he advanced towards him to take the video on 26 September 2019 and Bayne reacted to the perceived threat posed by Mr Meinhold. Any fear held by Mr Meinhold was not a fear of attack but I determine a vague and amorphous fear that harm might potentially befall others sometime in the future were they to enter the dog’s yard.
  6. [104]
    Mr Meinhold’s behaviour on 23 August 2019, when he freely entered Ms Smiley’s property to stand over the prone wallaby, attacked, he claimed, immediately beforehand by the dog Bayne, further negates any claim that he experienced fear of being attacked by Bayne in the incident on 26 September 2019.
  7. [105]
    This final charge is not made out.

Conclusion

  1. [106]
    Given none of the complaints are made out the appropriate order is to set aside the regulated dog declaration. The internal review decision was flawed and has no effect. The only regulated dog declaration that remains extant is the dangerous dog declaration made 4 February 2020, which should be set aside.

Footnotes

[1]As Senior Member Brown and I explained in Brisbane City Council v Roy [2020] QCATA 147 at [52].

[2]Imbrogno & Anor v Brisbane City Council [2017] QCATA 148 [47].

[3]Audio record, 29 April 2021 12:47:00pm; 30 April 2021 11:05:44.

[4]Exhibit 21.

[5][2009] FCA 528 [20].

[6]Exhibit 4, page 76.

[7]Ibid page 76 and 77.

[8]Exhibit 1 page 2; Exhibit 4 page 113.

[9]Queensland Civil and Administrative Act 2009 (Qld).

[10]Exhibit 4 page 114.

[11]Exhibit 11.

[12]Audio, 29 April 2021 10:07:35.

[13]Williams v Ray White Cairns Beaches [2016] QCATA 16, [68].

[14](1938) 60 CLR 336.

[15]Ibid 361.

[16]Exhibit 4 page 87-88.

[17]Audio record 30 April 2021 10:41:10.

[18]Exhibit 4 page 89.

[19]Audio record 30 April 2021 10:43:00.

[20]Ibid 10:52:18.

[21]Macquarie Online Dictionary.

[22]Ibid.

[23]Exhibit 6 [5].

[24]Exhibit 7 [2].

[25]Audio 2:23:20.

Close

Editorial Notes

  • Published Case Name:

    Smiley v City of the Gold Coast

  • Shortened Case Name:

    Smiley v City of the Gold Coast

  • MNC:

    [2022] QCAT 445

  • Court:

    QCAT

  • Judge(s):

    A/Senior Member Howe

  • Date:

    05 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
Briginshaw v Briginshaw (1938) 60 C.L.R 336
3 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Cite 3 - (1938) 60 C.L.R 336
Brisbane City Council v Roy [2020] QCATA 147
2 citations
Jump To
Cite 1 - [2020] QCATA 147
Cite 2 - [2020] QCATA 147
Imbrogno v Brisbane City Council [2017] QCATA 148
2 citations
Jump To
Cite 1 - [2017] QCATA 148
Cite 2 - [2017] QCATA 148
JM Kelly (Project Builders) Pty Ltd v Queensland Building Services Authority [2013] QCAT 502
2 citations
Jump To
Cite 1 - [2013] QCAT 502
Cite 2 - [2013] QCAT 502
Martinez v Minister for Immigration and Citizenship and Another [2009] FCA 528
2 citations
Jump To
Cite 1 - [2009] FCA 528
Cite 2 - [2009] FCA 528
Twist v Randwick Municipal Council (1976) 136 C.LR. 106
1 citation
Jump To
Cite 1 - (1976) 136 C.LR. 106
Wallis v Acting Deputy Commissioner [2019] QCAT 342
2 citations
Jump To
Cite 1 - [2019] QCAT 342
Cite 2 - [2019] QCAT 342
Williams v Ray White Cairns Beaches [2016] QCATA 16
2 citations
Jump To
Cite 1 - [2016] QCATA 16
Cite 2 - [2016] QCATA 16

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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