Westacott v Noosa Shire Council
[2023] QCAT 124
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- Unreported Judgment
- Westacott v Noosa Shire Council[2023] QCAT 124
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Westacott v Noosa Shire Council[2023] QCAT 124
Westacott v Noosa Shire Council[2023] QCAT 124
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Westacott v Noosa Shire Council [2023] QCAT 124 |
PARTIES: | Mark steven westacott (applicant) v noosa shire council (respondent) |
APPLICATION NO/S: | GAR097-22 |
MATTER TYPE: | General administrative review matters |
DELIVERED ON: | 30 March 2023 |
HEARING DATE: | 20 February 2023 |
HEARD AT: | Brisbane |
DECISION OF: | Member Munasinghe |
ORDERS: | Noosa Shire Council’s decision dated 10 December 2021 declaring ‘Max’ a dangerous dog is confirmed. |
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where applicant’s dog attacked delivery person – where the respondent subsequently made a Dangerous Dog Declaration in respect of the dog – where applicant seeks to review Dangerous Dog Declaration – whether attack was a serious attack – whether delivery person entered applicant’s residence lawfully – whether delivery person provoked the dog – where preponderance of evidence suggests the dog is usually gentle and good natured – whether Tribunal is required to confirm Dangerous Dog Declaration if it finds a serious attack has occurred Animal Management (Cats and Dogs) Act 2008 (Qld), s 60, s 61, s 89, s 94 Criminal Code Act 1899 (Qld), s 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24 Brisbane City Council v Roy [2020] QCATA 147 Halliday v Nevill [1984] HCA 80 |
APPEARANCES & REPRESENTATION: | |
Applicant: | Self-represented |
Respondent: | Jackson Voges, Local Laws Governance Officer at Noosa Shire Council |
REASONS FOR DECISION
What is this application about?
- [1]Mark Steven Westacott owns a Dalmatian Crossbreed dog named Max.
- [2]On 10 December 2021, Noosa Shire Council (‘Council’) declared Max a ‘dangerous dog’ under s 89 of the Animal Management (Cats and Dogs) Act 2008 (‘AM Act’).
- [3]Council made its declaration following an allegation that Max seriously attacked and caused bodily harm to a delivery person named Paul Callaghan who attended Mr Westacott’s residence.
- [4]Mr Westacott applies to the Tribunal to review Council’s dangerous dog declaration (‘review application’).
The Animal Management (Cats and Dogs) Act 2008 (Qld)
- [5]It is appropriate to set out sections of the AM Act relevant to the review application. To that end, I respectfully adopt the succinct exposition of the AM Act concerning dangerous dog declarations contained in Brisbane City Council v Roy [2020] QCATA 147.
- [20]“A regulated dog means a declared dangerous dog, a declared menacing dog, or a restricted dog.[1] A local government may declare a dog to be dangerous, menacing, or restricted.[2] A declared dangerous dog includes a dog declared to be dangerous under s 94 of the AM Act.[3] A dangerous dog declaration may be made if a dog:
- (a)has seriously attacked, or acted in a way that caused fear to a person or other 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.
- (a)
- [21]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.
- [22]‘Seriously attack’ means to attack in a way causing bodily harm, grievous bodily harm, or death. ‘Grievous bodily harm’ and ‘bodily harm’ have the meaning given by the Criminal Code Act 1899 (Qld) (‘Criminal Code’), s 1. 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.
- [23]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. The local government must consider any written representations and evidence submitted by the dog owner. If the local government is satisfied that a ground for making the declaration still exists, it must make the regulated dog declaration.”
The Hearing
- [6]An oral hearing of the review application took place on 20 February 2023. Council adduced evidence from three witnesses, namely:
- (a)Investigation Officer Jodie Crawford, who investigated the alleged serious attack and subsequently completed a Dangerous Dog Declaration;
- (b)Investigation Officer Andrew Irvine, who also investigated the alleged serious attack; and
- (c)Mr Paul Callaghan, the victim of the alleged serious attack.
- (a)
Mr Callaghan’s account of the attack.
- [7]I will not expound on the evidence Ms Crawford and Mr Irvine gave at the hearing, which was largely uncontroversial. Rather, Mr Callaghan’s account of the alleged attack warrants careful examination, to ascertain whether a ‘serious attack’ occurred, which is a prerequisite to the making of a ‘dangerous dog declaration’ under s 89 of the AM Act.
- [8]Mr Callaghan told the Tribunal that on 5 November 2021 he attended Mr Westacott’s residence to deliver a pallet 20 of litre containers filled with epoxy resin (‘goods’). Before attending the residence, he unsuccessfully attempted to call Mr Westacott. He did not leave a voicemail message because he assumed Mr Westacott would call him back.
- [9]Upon arriving at the residence, Mr Callaghan parked at the top of the driveway. He saw a vehicle parked in the driveway which caused him to believe that Mr Westacott was home. He approached the gate with the intention of entering the property and knocking on the front door. Mr Callahan did not want to leave the goods on the driveway because they were valuable, and he feared they could be stolen.
- [10]Mr Callaghan did not observe any signage on the gate or on the fence warning about the presence of dogs on the property. Nor did he hear any barking. He opened the unlocked gate. Almost immediately a large white dog leapt towards his face. The gate was half open at this point. As the dog leapt towards him Mr Callaghan raised his right arm to protect his face. That motion brought his arm into contact with the dog’s mouth. He pulled his arm away whilst retreating through the gate.
- [11]After closing the gate, Mr Callaghan observed a tear in his long-sleeved work shirt and a patch of skin missing from his arm. After unloading the goods at his house, he attended hospital where he received treatment and convalesced for three days.
- [12]Mr Callaghan conceded the dog did not latch or grab onto his arm. The injury was “more or less just a slash”. He didn’t feel any pressure or clamping force from the dog’s jaws when he withdrew his arm. He believes the injury probably occurred when he withdrew his arm from the dog’s mouth.
- [13]Mr Callaghan denied that his arm contacted any part of the fence, the gate latch, or the gate itself whilst he was retreating from the dog. He insists that only the dog could have caused his injury. He claimed that he would not have entered the property if he heard a dog barking because “dogs are naturally territorial”. Similarly, he insisted that he wouldn’t have entered the property if he saw a sign warning about the presence of dogs.
The applicant’s submissions
- [14]At the hearing, and in earlier written submissions to the Tribunal, Mr Westacott submitted that Mr Callaghan should not have entered his property, because there was a sign on his fence stating, ‘CAUTION DOGS RUNNING FREE’. He contends that during a telephone conversation shortly after the attack, Mr Callaghan told him that he knew there were dogs on the property but entered regardless.
- [15]Mr Westacott submitted that Council Officers did not act impartially during the investigation that preceded the making of the dangerous dog declaration.
- [16]Mr Westacott relies on two letters from Veterinarian Dr Kate Storey, who has treated Max at her Peregian Springs Surgery since 26 June 2019. In those letters, Dr Storey relevantly opined:
- (a)During his visits to the clinic, an often unfamiliar and stress-inducing situation, Max was happy, friendly, and showed no signs of aggression or fearful behaviour;
- (b)She visited max at the Mr Westacott’s residential address and did not observe any displays of aggression;
- (c)During her frequent interactions with Max he has shown no signs of resource guarding, fear aggression or anxiety leading to aggressive behaviour. Any such behaviour would be out of character for Max; and
- (d)To assess Max’s overall temperament based on a single event, with no knowledge of the approach, demeanour, or attitude towards Max from the person approaching, or any knowledge of potential factors that may have caused any out of character behaviour in the lead up to the single event is unreasonable.
- (a)
- [17]Mr Westacott also relies on a letter from professional dog trainer Stephen Dawson attesting to Max’s calm and gentle disposition.
- [18]Mr Westacott produced a petition containing the names of 30 people who know Max, attesting that he is not “aggressive or dangerous” and opining that that Noosa Council’s dangerous dog declaration is “simply wrong”.
- [19]To confirm Max’s temperament, Mr Westacott produced a video of Max at a public dog beach in the week prior to Council’s dangerous dog decision, where Max can be observed playing happily with other dogs and people including his 10 month old grandson.
- [20]Lastly, Mr Westacott submitted that Mr Callaghan has provided differing accounts of the serious attack.
Noosa Shire Council’s submissions
- [21]At the hearing, Council moved for the Tribunal to uphold its dangerous dog declaration and made the following relevant submissions:
- (a)Mr Callaghan entered the property lawfully. Further, his act of entering the property did not constitute provocation and did not justify an act causing serious injury;
- (b)Mr Callaghan’s delivery instructions did not indicate that there were dogs on the property, nor were there instructions to leave the goods at the front of the property;
- (c)Max seriously attacked Mr Callaghan causing him grievous bodily harm;
- (d)As a matter of law, a dog can be declared dangerous even from an isolated event;
- (e)The primary consideration of the officer who made the declaration was ‘public safety, which is in keeping with the objective of the AM Act;
- (f)Mr Westacott failed to take reasonable steps to ensure the public had safe access to the front door of his property.
- (a)
The Tribunal’s role
- [22]The Tribunals purpose in this review application is to produce the correct and preferable decision by way of a fresh hearing on the merits. [4] To achieve that purpose the Tribunal may confirm or amend Council’s decision, set aside the decision and substitute its own decision, or return the matter to Council for reconsideration with directions the Tribunal considers appropriate.[5]
Findings
- [23]I found Mr Callaghan’s evidence at the hearing compelling and reliable. Mr Callaghan provided accounts of the alleged attack on the following occasions:
- (a)In a letter to investigators dated 9 November 2021;
- (b)In a formal interview with Council Investigators on 10 November 2021;
- (c)In a further telephone call with Investigator Crawford on 15 November 2021.
- (d)In a statement dated 23 April 2022; and
- (e)At the Tribunal hearing on 20 February 2023.
- (a)
- [24]In his letter dated 9 November 2021 and statement dated 23 April 2022, Mr Callaghan stated that Max “latched onto my arm with its mouth”. However, during the hearing, he clarified that Max did not latch or grab onto his arm, he didn’t feel any pressure or clamping force and the injury probably occurred when he withdrew his arm. I do not consider that Mr Callaghan’s credibility or reliability as a witness is adversely impacted by that minor inconsistency. Mr Callaghan’s descriptions of the attack are otherwise largely consistent across each of the five accounts he gave. I accept his evidence without reservation.
- [25]Having accepted Mr Callaghan’s account of the attack, I accordingly find that he sustained an injury to his right arm when it came into contact with Max’s teeth as the dog leapt on him. Records from the Sunshine Coast University Hospital describe the resulting injury as a “right forearm dog bite with skin loss” which required “wound debridement and closure”. Photographs of the injury indicate a sizable patch of skin missing from Mr Callaghan’s forearm. I am satisfied that the injury constitutes bodily harm as defined in s 1 of the Criminal Code, because it ‘interferes with health or comfort’. Therefore, I find that in satisfaction of s 89(2)(a) of the AM Act, Max did seriously attack Mr Callaghan.
- [26]Mr Westacott contends that Mr Callaghan may have provoked or antagonised Max. I consider that contention to be entirely speculative. There is no evidence to suggest Mr Callaghan provoked Max. Nor do I accept Mr Westacott’s contention that Mr Callaghan entered his residence unlawfully and without permission. In Halliday v Nevill [1984] HCA 80 the High Court considered when a licence to enter a suburban dwelling will be implied. The plurality opined:[6]
… If the path or driveway leading to the entrance of such a dwelling is left unobstructed and with entrance gate unlocked and there is no notice or other indication that entry by visitors generally or particularly designated visitors is forbidden or unauthorised, the law will imply a licence in favour of any member of the public to go upon the path or driveway to the entrance of the dwelling for the purpose of lawful communication with, or delivery to, any person in the house.
- [27]Although Mr Westacott affixed a warning sign to his fence, the sign did not purport to exclude or prohibit visitors from entering his yard. Rather, it merely counselled them to exercise caution before entering. Further, there was no lock on Mr Westacott’s gate leading to his front door. Accordingly, I consider Mr Callaghan had an implied license to enter Mr Westacott’s property.
- [28]Concerning the letters penned by Dr Storey and Mr Dawson, they were not present when Max attacked Mr Callaghan. Therefore, it follows they cannot know Max’s actions at that specific moment in time. Mr Callaghan experienced the attack and I accept his evidence about what occurred.
- [29]The preponderance of evidence in this proceeding persuades me that most of the time Max is a friendly and affable dog with a gentle disposition. However, on 5 November 2021, for reasons that will probably never be known, Max behaved contrary to his usual temperament and seriously attacked Mr Callaghan within the meaning of s 89(2) of the AM Act. Accordingly, s 94(2) of the AM Act compels me to confirm Council’s dangerous dog declaration. Consistently with the reasoning of the Appeal Tribunal in Brisbane City Council v Roy,[7] I have no discretion to do otherwise upon making a finding that a serious attack occurred.
Orders
- [30]For the reasons above, Noosa Shire Council’s decision dated 10 December 2021 declaring ‘Max’ a dangerous dog is confirmed.