Daly v Noosa Council[2023] QCAT 150

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   This is an application for review of a decision made by the Noosa Council (the Council) to destroy Red Dog pursuant to section 127 of the Animal Management (Cats and Dogs) Act 2008 (Qld) (the Animal Management Act).
2. [2]
   Mr Daly is the owner of Red Dog.

History

3. [3]
   Mr Daly does not dispute the history set out by the Council in the decision under review.  In summary:

   1. (a)
      On 7 July 2016, Red Dog escaped the property where he was kept through a hole in the fence, and attacked a Maltese X breed of dog.
   2. (b)
      On 26 May 2020, Red Dog again escaped the property where she was kept and attacked a Dachshund breed of dog.  The victim dog required emergency surgery.
   3. (c)
      On 16 June 2020, a woman contacted the Council and advised that Red Dog had attacked her Lhasa Apso breed of dog about eight weeks earlier.  The dog received puncture wounds that had to be treated by a vet.  The woman also received a bite to her ankle during the incident.  Mr Daly arranged for payment of the vet treatment.
   4. (d)
      On 10 July 2020, Red Dog was declared dangerous by the Council.
   5. (e)
      On 18 August 2020, an inspection was conducted the property where Red Dog was kept, and the Council found that the mandatory requirements for enclosing the dog were not met.
   6. (f)
      On 9 September 2020, a further inspection was conducted the property where Red Dog was kept, and the Council again found that the mandatory requirements for enclosing the dog were not met.
   7. (g)
      On 21 April 2022, Red Dog was observed by Council officers to be roaming off the property and not secured in her enclosure.
   8. (h)
      On 20 May 2022, Red Dog escaped a parked vehicle owned by Mr Daly.   Red Dog attacked a Cavoodle breed of dog.  The attack caused no injuries to the victim dog but caused fear to the dog owner.
   9. (i)
      On 11 September 2022, Red Dog escaped the property where she was kept and attacked a Miniature Poodle breed of dog.  The attack caused minor injuries to the victim dog and fear to the dog owner.
   10. (j)
       On 12 September 2022, during an interview with a Council officer, the owner of the victim dog in the 20 May 2022 incident advised that on a previous occasion Red Dog had been able to get away from the responsible person.  On that occasion, Red Dog was muzzled and unable to bite the victim dog, but stood over the victim dog with the clear intention of biting it.
   11. (k)
       On 13 September 2022, Council officers attended at the property and found Red Dog in the front yard without her mandatory dangerous dog collar and identification tag.
4. [4]
   Red Dog was subsequently seized by the Council, and a destruction order was made.

Mr Daly’s submissions

5. [5]
   Mr Daly provided both written and oral submissions at the hearing.  The written submissions, which encapsulate his key points, stated as follows:

• These all occurred at [address omitted] where other people also resided and I was not the owner for a lot of these incidences (sic).  I have since moved and have a secure property for Red Dog.
• I have purchased new harness, muzzle and leads and Red Dog will not leave the enclosure without all being attached before leaving enclosure (picture attached) and will only walk her with all attached and in low dog areas and at quiet dog walking times and will divert direction again upon seeing any other dog and person.
• Again with new harness, muzzle and leads and new enclosure this will not happen again.
• At the time most of these breaches occurred I wasn’t totally responsible and wasn’t in a very good living environment and didn’t take as much responsibility for Red Dog as I should have as she had no-one else looking after her, now I am the sole owner I am dedicated to being a responsible dog owner and make up for her past treatment.
• I intend to be a very responsible dog owner given the chance and will never allow Red Dog to commit a breach of the dangerous dog act.
• Having attached pictures of the new enclosure which has been approved by council and is totally secure unlike the previous address.
• I am totally committed to ensuring that there will be no more incidences (sic) of Red Dog escaping the premises to cause an issue with public safety.
• I acknowledge in the past that I did not meet requirements and I am fully committed to doing so in the future and will not allow Red Dog to pose a risk to the community again.

6. [6]
   Mr Daly confirmed at the hearing that he became owner of Red Dog on 3 June 2022.  He made a plea to be provided with a final chance.

Council’s submissions

7. [7]
   The Council conceded that Mr Daly was not responsible for the incident on 7 June 2016.  However, the Council maintained that Mr Daly was responsible for the other incidents set out above.
8. [8]
   In relation to the incidents which took place before Mr Daly became the owner of Red Dog, the Council pointed to the following items of evidence:

   1. (a)
      On 27 May 2020, Mr Daly signed the following statement in a Council officer’s notebook:

I, MATHEW DALY … hereby take full responsibility from this moment of a Staffordshire Bull Terrier … named RED DOG.  I agree to keep the dog, RED DOG, secured at all times on this property, utilizing the fully secured back yard and not allowing this dog to enter the front yard without being fully supervised by myself.  I take on this responsibility until the dog owner is in a position to take on this responsibility.

2. (b)
   On 21 April 2022, Mr Daly telephoned the Council and advised:

Mathew wanted to collect her on Friday 22/4/22 however JC advised that he council could not release the dog to Monique as she was not a responsible dog owner at this time … Mathew agreed with me that if a small dog was walking past when Red Dog was out, it would not have entered well.  Also advised that if Red Dog was doing to be in the front yard under supervision, the fencing was not compliant.  Mathew advised that he was more of the owner than Monique and I advised that was a conversation he would have to have with Monique.

9. [9]
   The Council also sent a final warning letter to Mr Daly on 23 May 2022 in the following terms:

After taking into consideration Red Dog’s extensive history, including impounds and infringements, council has now adopted the position that there can be no further incidents involving Red Dog.  As the responsible person and owner of a dog you are responsible for managing Red Dog in a way that ensures she does not pose a risk to the community …

Through the review of Red Dog’s history and this investigation, it is clear that you are not managing this responsibility with the attention it requires.  Council wishes to make you aware that a further incident of this nature, involving Red Dog, may result in prosecution or council issuing a “Destruction Order”.

Consideration

10. [10]
    As noted above, the Council’s power to issue a destruction order is contained in section 127 of the Animal Management Act.
11. [11]
    Some members of the Tribunal have expressed the view that the destruction of a dog should be a “last resort”:  see Thomas v Ipswich City Council [2015] QCATA 97 and Bradshaw v Moreton Bay Regional Council [2018] QCATA 140.  This is not a test which appears in the Animal Management Act.
12. [12]
    Other members of the Tribunal have not applied the last resort test.  For example, in Cutbush v Scenic Rim Regional Council [2019] QCAT 80, Member Gordon stated at [171]:

The difficulty with the ‘last resort’ test and the ‘the threat posed by the dog can only satisfactorily be dealt with by its destruction’ test plainly stated, is that they appear to tip the merits of such an argument in favour of the owner by suggesting that the owner ought in every case be given an opportunity to demonstrate they can control the dog as a dangerous dog.

13. [13]
    In Mitchell v Gympie Regional Council [2020] QCATA 19, Senior Member Aughterson and I stated at [20]:

Inevitably it is a balancing exercise as to whether community safety can be achieved through the conditions and requirements imposed for a regulated dog, or whether destruction of the dog is indicated in a particular case.  The destruction of a dog is neither a first resort or a last resort, but one of the options available for achieving community safety.

14. [14]
    In the present case, there have been a large number of incidents involving Red Dog, in which injuries have been caused to other dogs and persons.  Many of these incidents occurred after Red Dog was declared dangerous, which leads me to conclude that the regulation of Red Dog has not been sufficient to achieve community safety.  The continuation of these incidents after Red Dog was declared dangerous strongly supports the decision to destroy Red Dog.
15. [15]
    I place no weight on the fact that Mr Daly did not formally become the owner of Red Dog until 3 June 2022. As set out above, Mr Daly assumed responsibility for Red Dog in writing on 27 May 2020, and further affirmed that he was “more the owner” on 21 April 2022.
16. [16]
    I have considered Mr Daly’s plea for a final chance.  However, the final chance was contained in the Council’s letter dated 23 May 2022.  Mr Daly did not make the most of that chance.  While I accept that Mr Daly is now aware of the gravity of the consequences of his failure to manage Red Dog, I cannot ignore the extensive history.  Notwithstanding that Mr Daly has a new enclosure, harness, muzzle and leads, I consider that the history is a powerful predictor of what is likely to occur in the future.
17. [17]
    In the circumstances, the correct and preferable decision is to confirm the destruction order.