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  4. Palmer v Moreton Bay Regional Council - [2023] QCAT 337

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Palmer v Moreton Bay Regional Council[2023] QCAT 337

Palmer v Moreton Bay Regional Council[2023] QCAT 337

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Palmer v Moreton Bay Regional Council [2023] QCAT 337

PARTIES:

REBBECCA PALMER (applicant)

v

MORETON BAY REGIONAL COUNCIL (respondent)

APPLICATION NO:

GAR574-22

GAR575-22

MATTER TYPE:

General administrative review matters

DELIVERED ON:

30 August 2023

HEARING DATES:

15 August 2023

HEARD AT:

Brisbane

DECISION OF:

Member Roney KC

ORDERS:

The decision of the Council made on 27 October 2022 to issue destruction orders is set aside and the application for review is upheld.

CATCHWORDS:

GENERAL ADMINISTRATIVE REVIEW – DOG DESTRUCTION ORDERS – where history of non-compliance with requirements of declaration – where dog seized – whether discretion to issue destruction order in respect of dog should be exercised – where a child may have  and other animals have suffered bodily harm as a result of an attack by a dog – where the person entered the property where the dogs lived and was subjected to aggressive threatening behaviour – where a police officer outside the property where the dogs lived and was subjected to aggressive threatening behaviour and was aggressively lunged at in  biting behaviour – where the dogs had been declared as dangerous dogs – where dogs repeatedly not kept in enclosure, and allowed into the street to roam freely – discretionary considerations as to whether  to make an order to destroy (or not destroy) dogs – effective management of regulated dogs – whether a dog constitutes, or is likely to constitute, a threat to the safety of other animals or to people, by attacking them or causing fear, to the extent that the threat may only be satisfactorily dealt with by the destruction of the dog

Animal Management (Cats and Dogs) Act 2008 (Qld), s 3, s 4, s 59 s 97, s 118, s 125 s 127, s 131

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

Balens v Moreton Bay Regional Council [2018] QCAT 297

Bradshaw v Moreton Bay Regional Council [2017] QCATA 139

Thomas v Ipswich City Council [2015] QCATA 97

APPEARANCES &

REPRESENTATION:

The Applicant was self-represented

Ms J Dillon inhouse lawyer for the Respondent

REASONS FOR DECISION

  1. [1]
    The Applicant Ms Palmer is the registered owner of two Neapolitan Mastiff breed dogs. Both were declared to be a ‘dangerous dog’ under the Animal Management (Cats and Dogs) Act 2008 (Qld) (AM Act) by the Respondent Council in 2020. On 26 October 2022 the dogs were impounded for persistent failure to comply with Council’s statutorily imposed requirements for the management of the dogs.
  2. [2]
    Destruction notices for both dogs were made and served on the Applicant on 27 October 2022.The Applicant has applied to the Tribunal for external review of the decision to make the destruction orders.
  1. [3]
    The destruction orders concern a 7 plus year-old desexed female Neapolitan Mastiff / Crossbreed (Holly) and 4 plus year-old neutered Neapolitan Mastiff (Reuben) owned by the Applicant. Both were ordered by the Respondent to be destroyed under the AM Act.
  2. [4]
    The female dog Holly was regulated as a dangerous dog following what was thought by the Council to be an unprovoked attack on an animal being walked on a lead by a child in August 2020. Reuben was originally regulated as dangerous, following his involvement in an unprovoked attack on another animal in May 2020, however following an assessment of the evidence. The male dog Reuben was downgraded to a regulated menacing dog not a dangerous dog, as Council could not be satisfied that Reuben was an active participant in the attack.
  3. [5]
    There is little about these particular animals as part of this breed in the material before me however it is easy to find objective reference to them in the available uncontroversial literature. They are said to be a large, heavy and massive dog with a bulky appearance.

“They are a massive dog with a large wrinkled head and dewlaps. Powerfully built, with loose abundant skin and heavy boned, they are immensely strong and capable of explosive power, leaping head high from the ground. They are also as fast as some sight hounds, over short distances.”. They are also said to be “are highly intelligent, loyal dogs, who are affectionate and gentle with family, steady, calm and very willing to please their owners. Protective instincts are fully intact and they will protect home and family”.[1] Having heard the sound of their barking on the videos before the Tribunal, they emit a loud low bark which it would not be difficult to think would sound threatening to a person.

  1. [6]
    The applicant herself accepts that both dogs individually present a level of risk to the community just by their sheer size and intimidating behaviour alone.

The provisions of the Animal Management (Cats and Dogs) Act 2008 (Qld) and the jurisdiction of QCAT

  1. [7]
    Section 127 of the AM Act, which applies to seized dogs, provides for destruction of regulated dogs, in various circumstances, which may be summarised as follows:
  1. an authorised person may immediately destroy a dog if the person reasonably believes the dog is dangerous and the person can not control it, or an owner of the dog has asked a person to destroy it.
  2. an authorised person may destroy a dog after 3 days after the seizure if the dog has no registered owner and no known responsible person for it.
  3. an authorised person may make a destruction order giving 14 days’ notice, and destroy the dog if no application for internal review is made, or destroy the dog if an internal review is ended and no external review is made, or if an external review is ended.
  1. [8]
    Section 97 requires an owner or person responsible for a declared dangerous dog to ensure that permit conditions as provided for in Schedule 1 are adhered to. The conditions include enclosure requirements; implantation with a PPID and wearing an identifying tag of a specified type; for a dangerous dog, muzzling and being effectively controlled if not at its registered address; and signage.
  2. [9]
    Section 125 sets out circumstances in which dogs can be seized by Council. Under s 127, if a regulated dog cannot be controlled it may be immediately destroyed. It also provides for a destruction order to be made.   AM Act s 125(1)(a) provides for seizure if there is a reasonable belief the dog has attacked, threatened to attack or acted in a way causing fear to a person or animal, or is (or may be) a risk to community health and safety, and under 125(1)(c), for a regulated dog a compliance notice has not been complied with.
  3. [10]
    The source of power to make the original decision to destroy the dogs is in s. 127 of the AM Act, headed “power to destroy seized regulated dog”.
  4. [11]
    The purpose of the Act is stated to be to:
  1. provide for the effective management of regulated dogs: s. 3(c);
  2. promote the responsible ownership of dogs: s. 3(d);
  3. be primarily achieved through by:
  1. imposing obligations on regulated dog owners: s. (4)(g);
  1. imposing obligations on persons to ensure dogs do not attack or cause fear: s. (4)(l);
  1. prohibiting anyone from allowing or encouraging a dog to attack or cause fear to people or other animals: s. (4)(m).
  1. [12]
    Chapter 4 of the Act concerns “regulated dogs”, the purpose of which it is stated are to:
  1. protect the community from damage or injury, or risk of damage or injury, from particular types of dogs called ‘regulated dogs’: s. 59(1)(a); and
  1. ensure the dogs are:
  1. not a risk to community health or safety; and
  1. controlled and kept in a way consistent with community expectations and the rights of individuals”: s. 59(1)(b).
  1. [13]
    Section 59(2) sets out how the purposes of Chapter 4 are to be achieved primarily by:
  1. providing for local governments to declare dogs to be dangerous dogs, menacing dogs and restricted dogs;
  1. providing for the compulsory desexing of declared dangerous dogs and restricted dogs;
  1. providing for identification of dogs as regulated dogs;
  1. providing for permits for restricted dogs;
  1. imposing conditions on keeping, and requirements for the control of, regulated dogs;
  1. allowing authorised persons to seize or destroy dogs in particular circumstances;
  1. providing for local governments to administer, and be responsible for, the matters mentioned in paragraphs (a) to (f).
  1. [14]
    By s. 60 a “regulated dog” is a declared dangerous dog, declared menacing dog or a restricted dog. In this case Holly is regulated as a dangerous dog and Reuben, originally regulated as dangerous, is now a regulated menacing dog.
  2. [15]
    Part 4 of Chapter 4 deals with “regulated dog declarations”.  The Act[2] empowers a local government to declare a particular dog a dangerous dog if the dog has seriously attacked, or acted in a way that caused fear to a person or another animal,[3] or 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.[4]
  3. [16]
    The requirements[5] in regard to a dog which is subject to a dangerous dog declaration are as follows:
  1. An owner must ensure the relevant dog is desexed within 3 months;
  1. A relevant dog must be implanted with a PPID and must, at all times, wear a collar with attached identification tag;
  1. A relevant dog must not be in place that is not the relevant place for the dog unless it is muzzled and under the effective control of someone who has the control of no more than 1 dog at the same time;
  1. An enclosure for a relevant dog must be maintained at or on the relevant place for the dog and the dog must, unless there is a reasonable excuse, be usually kept in the enclosure (there is also extensive list of requirements set out for the enclosure in the Act and its regulations);
  1. A sign, supplied by the Council, must be placed at or near each entrance to the relevant place notifying the public that a relevant dog is kept at the place;
  1. A relevant dog must not be kept at a place other the relevant place for the dog; and
  1. If a relevant person changes residential address, the person must give the Council notice of the person’s new residential address within 7 days.
  1. [17]
    The obligation at s 94 of the Act mandates that the local government must make a regulated dog declaration if after considering written representations the local government is still satisfied that that the relevant ground under s 89 still exists. Relevantly:
  1. A dangerous dog declaration may be made for a dog only if the dog—
  1. has seriously attacked, or acted in a way that caused fear to, a person or another animal; or
  1. 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. [18]
    A serious attack means to attack in a way causing bodily harm, grievous bodily harm or death.[6]
  2. [19]
    Bodily harm is defined pursuant to Schedule 1 of the Criminal Code. Relevantly:

bodily harm means—

any bodily injury which interferes with health or comfort.

  1. [20]
    The owner of a regulated dog must ensure that each permit condition imposed in relation to the dog is complied with: s. 97(1). Chapter 5 of the Act concerns “investigation, monitoring and enforcement.”
  2. [21]
    As I have mentioned already, Section 127 of the Act confers a power to destroy a seized regulated dog. A regulated dog that has been seized may be immediately destroyed by an authorised person if: the person reasonably believes the dog is dangerous and the person cannot control it; or an owner of the dog has asked the person to destroy it: s. 127(2).
  3. [22]
    A regulated dog that has been seized may be destroyed within 3 days after the seizure, in certain circumstances, such as, the dog not having a registered owner, or the owner is not known: s. 127(3). Where there is a registered owner of the dog, the authorised person may make an order (a destruction order) stating it is proposed to destroy the dog within 14 days after the order is served: s. 127(4). The destruction order together with an information notice must be served on the registered owner of the dog: s. 127(5). If a destruction order is made for the dog, the person may destroy the dog within 14 days after the order is served if there is no application for an internal review of the original destruction order: s. 127(6).
  4. [23]
    On a review of the decision made under s. 127 of the AM Act QCAT is required to hear and decide the review by way of a fresh hearing on the merits to produce the correct and preferable decision: ss. 19; 20(1) of the QCAT Act.
  5. [24]
    By s. 28(3) of the QCAT Act, the Tribunal:
  1. must observe the rules of natural justice;
  1. is not bound by the rules of evidence, or any practices or procedures applying to courts of record, other than to the extent QCAT adopts the rules, practices or procedures;
  1. may inform itself in any way it considers appropriate;
  1. must act with as little formality and technicality and with as much speed as the requirements of this Act, an enabling Act or the rules and a proper consideration of the matters before the tribunal permit; and
  1. must ensure, so far as is practicable, that all relevant material is disclosed to the tribunal to enable it to decide the proceeding with all the relevant facts.
  1. [25]
    By s. 24(1) of the QCAT Act, QCAT may confirm or amend the decision, or set aside the decision and substitute its own decision.
  2. [26]
    When reviewing a destruction order the Tribunal is required to undertake extensive enquiry before exercising its discretion under section 127(4) of the  Act.[7]
  3. [27]
    The standard of proof required for findings of fact by the Tribunal is that I must be ‘comfortably satisfied’ having regard to the nature and consequence of the facts to be proved.[8]
  4. [28]
    In deciding this matter, the Tribunal must have regard to the public interest in deciding whether to set aside the destruction order.
  5. [29]
    In Thomas v Ipswich City Council [2015] QCATA 97 some, but little guidance was given as to how the discretion to make an order to destroy (or not destroy) a dog should be exercised. The legislative intent should inform how the discretion was exercised. 
  6. [30]
    Relevantly, at [16] it was held that:

“In the absence of any specific criteria, the legislative intent must be ascertained from the legislative scheme. Section 3 provides that the purposes of the AM Act include providing for effective management of regulated dogs.[68] Section 4 specifies how the purposes are primarily to be achieved. These means include imposing obligations on regulated dog owners; appointing officers to monitor compliance with the AM Act; and imposing obligations on some persons to ensure dogs do not attack or cause fear. Section 59 sets out that the purposes of ‘Chapter 4 Regulated Dogs’ include protecting the community from damage or injury, or risk of damage or injury, from regulated dogs;[69] ensuring that regulated dogs are not a risk to community health and safety;[70] and ensuring regulated dogs are kept in a way consistent with community expectations and the rights of individuals.

  1. [31]
    The decision in Thomas v Ipswich City Council is often relied upon in support of the proposition that a destruction order is a last resort and that it is generally only where the mechanisms in the Act for management fail, or are ineffective, that it is appropriate for destruction to occur.
  2. [32]
    Later in Thomas v Ipswich City Council at [18], it was said that:

“It is clear that the AM Act is primarily directed towards the effective management and responsible ownership of dogs and that the destruction of a dog is a ‘last resort.’ It is generally where the mechanisms in the Act for management fail, or are ineffective, that destruction arises. The essential question is whether the dog constitutes, or is likely to constitute, a threat to the safety of other animals or to people, by attacking them or causing fear, to the extent that the threat may only be satisfactorily dealt with by the destruction of the dog”. (My emphasis)

  1. [33]
    That statement in Thomas v Ipswich City Council was adopted in Bradshaw v Moreton Bay Regional Council [2017] QCATA 139 at [47].
  2. [34]
    The relevant test to be applied was also discussed in Bradshaw v Moreton Bay Regional Council [2017] QCATA 139 which relevantly held:

The general discretion under s 127(4) to order that an animal be destroyed is not limited to a consideration of the seriousness of the attack and the risk of another serious injury occurring by the dog giving rise to seizure. As determined in Thomas’s case, the question, and the exercise of discretion that follows, is to be based on whether the dog constitutes, or is likely to constitute, a threat to the safety of other animals or to people, by attacking them or causing fear, to the extent that the threat may only be satisfactorily dealt with by the destruction of the dog.

  1. [35]
    In Bradshaw, at [39], the Appeal Tribunal comprising Senior Member Browne and Member Howe correctly observed that it is a ‘serious matter’ to order the destruction of a family pet. The Appeal Tribunal correctly observed that there are no express criteria under the AM Act to guide the exercise of the discretion to make a destruction order and that the member whose decision was under appeal had regard in his reasons to other provisions, including the objects of the Act. The Appeal Tribunal held that the learned Member correctly observed that community safety is a key issue in exercising the discretion along with, amongst other things, the nature of the attack, the behavioural aspects of the dog, the exposure of the community to risk of injury including arrangements for keeping of the dog, and the likelihood of persons responsible for the dog taking proper steps to minimise risk to the community. The Appeal Tribunal held that the learned Member correctly observed that the AM Act does not contemplate that every dog that attacked and caused injury is to be destroyed. The Appeal Tribunal held that the learned Member had correctly said that the decision-maker has a discretion whether or not to make a destruction order.
  2. [36]
    All other issues aside, I am specifically required to consider whether to exercise the broad discretion in s 127(4) whether to order that an animal be destroyed. I also have regard to ss 3, 4, 97, 125, and Schedule 1 of the Act.

The arguments of the Respondent Council

  1. [37]
    Here the Respondent submits that there is a history of unprovoked attacks on animals and people, a history of menacing people and a history of the dogs being able to wander at large in public places by both dogs present an unacceptable collateral risk to community health and safety, and that the community expectations around how a regulated animal is kept is evidenced by the government’s proposition that legislative changes to the Act include increased penalties for noncompliant regulated dog owners and jail time for owners of dogs that cause serious harm.
  2. [38]
    The Respondent submits that the only way to ensure the risk to community health and safety is by the destruction of the two dogs.
  3. [39]
    The Respondent also submits that the Applicant’s own evidence in relation to Rueben and Holly is that both animals are “extremely protective” and they have in the past have been regularly outside of any statutory enclosure and unrestrained in the yards of the various residences at which they have been known to reside.
  4. [40]
    The Respondent submits that while the applicant proposes that the threat posed by both dogs can be satisfactorily managed by full compliance with the mandatory conditions of regulated dog ownership, her submissions continue to point to an expectation that both dogs can live largely as unregulated dogs at the approved property. Separate submissions have been made by the Respondent as to the statutory meaning of “usually” for the purposes of Schedule 1 of the Act.
  5. [41]
    The Respondent also submits that the risk of the dogs attacking or menacing any person who lawfully knocks on the door of the applicant’s residence, or a child coming to play at the residence or a real estate agent conducting an inspection while the dogs live outside of their regulated enclosure has been repeatedly demonstrated.
  6. [42]
    The Respondent also submits that due to the history of attacks and menacing behaviour causing fear, there can be little doubt that Holly and Reuben have displayed aggressive tendencies, which have not been in protection of their family or property, but instead have been unprovoked attacks that have been possible due to the dogs being inherently aggressive and reactive, unrestrained, unmuzzled and not under adult control.
  7. [43]
    The Respondent also submits that the possibility that both Holly and Reuben will behave in a similar aggressive and reactive pattern if the opportunity is presented is high, and as such an unacceptable risk to the public.

Regulatory history of the dogs

  1. [44]
    On 11 May 2020 at approximately 2.45pm, the dog Rueben, escaped the property at 30 Water St, Kallangur, together with another dog from the same address, a Neapolitan Mastiff known as Sophie. Both Rueben and Sophie approached a male person in the front yard of a house in Water St and rushed at him in an aggressive manner causing him to fear for his safety.
  2. [45]
    Rueben and Sophie then entered another address in Water St and engaged in an unprovoked attacked of another male person, who was forced to fend the dogs off with a rubbish bin lid.
  3. [46]
    Rueben and Sophie then walked back around to the front of that house and engaged in an unprovoked attack on a 3rd male person who was standing in the driveway holding his small dog in his arms. One of the dogs bit that person on the underneath of his left arm causing bodily harm, requiring medical attention including a tetanus vaccination, cleaning and bandaging of a wound to his left arm.
  4. [47]
    On 18 June 2020. as a result of these attacks on persons and animals, Rueben was declared by the Respondent Moreton Bay Regional Council as a regulated Dangerous dog.
  5. [48]
    On 23rd August 2020, the dog Holly, escaped the property at 30 Water Street Kallangur, with the by now regulated dog Reuben. A male child was walking a brindle female Mastiff Crossbreed on a lead. Holly intercepted the female Mastiff and attacked latching onto the victim’s neck. As a result of that incident, the victim dog sustained puncture wounds to the neck and a torn ear. Vet treatment of the injuries confirmed they are consistent with Bodily Harm. Puncture wounds required surgery to flush and staples to close the wounds.
  6. [49]
    On 16 October 2020, as a result of the unprovoked attack on another animal, dog Holly was declared by the Council as a regulated Dangerous dog.
  7. [50]
    On 13 November 2020 the applicant’s real estate agent attended on 30 Water Street Kallangur. The agent advised Council that the dogs were unrestrained in the yard, unsupervised and jumped at the agent (and her colleague) in a menacing fashion causing actual fear to enter the property.
  8. [51]
    In November 2020 the real estate agent and police attended 30 Water Street Kallangur to serve court documents to evict the applicant. The agent saw that the dogs were unrestrained in the yard, unsupervised and jumped at the agent and the police officer in a menacing manner and caused some bodily harm to the police officer while he attempted to enter the gate.
  9. [52]
    The applicant and the dogs were evicted from Water Street Kallangur in November 2020, however she failed to advise Council of where the dogs were located from that time.
  10. [53]
    On 10 December 2020, Local Law Rangers attended a house at 30 Water Street, Kallangur, the address where Holly was kept, checking compliance with mandatory conditions for the keeping of a regulated dangerous dog. The officers observed that the owner, and responsible person for Holly, had vacated the property with the dogs. No updated address was received from the applicant despite it being a mandatory condition for owning a regulated dangerous dog under Schedule 1 of the AM Act.
  11. [54]
    During the period December 2020 until July 2021 the whereabouts of Holly and Reuben was unknown to the Council.
  12. [55]
    On 13 July 2021, the Council received information that Holly and the Reuben were residing at 47 Hedge Street, Strathpine.
  13. [56]
    On 14 July 2021, a warrant to enter was executed and Holly and Reuben were seized and impounded by the Council due to the risk posed to the community from Holly as a regulated dangerous dog and Reuben as a regulated menacing dog and failing to comply with several mandatory conditions of owning the dogs.
  14. [57]
    On 26 July 2021 a report was made to the Council by a member of the public that one of the dogs at 47 Hedge Street, Strathpine had bitten a child. An infringement was issued for failing to comply with a mandatory condition for the keeping of a regulated dangerous dog. There is doubt about whether this child was actually bitten, since the parent of the child did not complain, did not show the child to have been injured and would not cooperate. A member of the public reported it, although the details of what exactly was seen are not before the tribunal.
  15. [58]
    On 2 August 2021, the Council received information that Holly and Reuben were wandering at large and observed menacing (barking and lunging) at a person riding a bicycle along Hedge Street past the property. The bicycle rider had to hide behind a wheelie bin to avoid the dog attack. The Applicant has tried to diminish the significance of this as being over reactive by the bike rider, and not really such a treat as it seemed. I am satisfied that at the very least the threat appeared sufficiently serious for the member of the public to be frightened when in a public place.
  16. [59]
    On 6 August 2021, a second infringement was issued for failing to comply with mandatory conditions for the keeping Reuben a regulated dangerous dog in that the dog must usually be kept in a regulated dog enclosure and prevent it from escaping the place.
  17. [60]
    On 23 August 2021, the Council received information that Holly was wandering at large without wearing a muzzle. Local Law Rangers attended the place and witnessed Holly wandering at large at the front of the property and not in the regulated dangerous dog enclosure. Officers observed that Holly chased the post man while she was unrestrained in the front yard. Officers were unable to capture Holly without risk to their safety, so they secured her inside the residential dwelling where a door had been left open. No occupants were home at the time. Local Law Rangers where required to secure the door to prevent Holly escaping the place and wandering at large.
  18. [61]
    On 23 August 2021 while investigating the wandering at large incident, officers spoke with neighbours of the property at 47 Hedge Street Strathpine. Two neighbours said that they had seen Holly and Reuben chasing people, barking at people and causing fear by menacing people on the street.
  19. [62]
    On 24 August 2021 a compliance notice for maintaining a proper enclosure for the regulated dogs was left at the address giving until 30 August to comply with the mandatory conditions.
  20. [63]
    Infringements for failing to comply with permit conditions: keeping regulated dog in enclosure; wearing regulated collar or tag; having a muzzle in public (admitted when owner takes him walking) and not updated the address for the dogs within 7 days of dog moving property were then issued.
  21. [64]
    On 2 February 2022, the Council received notification that a dog wearing dog collar and on a lead at Bells Pocket Road, Lawnton attempted to bite a police officer. The Council received dash cam footage identifying Reuben as the offending dog. Reuben was not wearing a muzzle, and was with the applicant on a public footpath, and lunged towards a Police Officer, Constable Bryce, whose affidavit and oral testimony I accept. There the applicant had to dramatically pull on the lead to gain control of Reuben who lunged violently at the officer. There are stills or screenshots from the dashcam of this attack in evidence and the relevant officer gave evidence of how he believed he was about to be bitten and attacked in his genital area. The dashcam footage was not put into evidence or shown to me. It is clear that this could well have has a very serious outcome had the long leash the dog was on not held him back. To make the matter worse, this attack on him occurred after he had already moments earlier been in close proximity to the dog and the applicant, and it had been calm. Clearly, unpredictability is a disturbing trait.
  22. [65]
    As a result of the last incident, on 11 February 2022, the two dogs were seized under warrant due to noncompliance.

August 2022 release of the dogs to the Applicant on compassionate grounds

  1. [66]
    In what follows I have carefully considered and accepted the history set out in the affidavits of Sharni Statham (and her oral testimony) and, Liam O'Callaghan and accept their evidence as to the occurrence of the events described below in the period from August 2022.
  2. [67]
    On 4 August 2022 the Respondent offered to release the dogs to the Applicant on compassionate grounds, with a stern warning that any instances of statutory noncompliance would be acted on by the Respondent.
  3. [68]
    That came after an extensive period of impounding following further non-compliance with the mandatory conditions for keeping a regulated dangerous dog, Council agreed to return to the dogs to the applicant, reiterating that Section 97 requires an owner or person responsible for a declared dangerous dog to ensure that permit conditions as provided for in Schedule 1 are adhered to. The conditions included enclosure requirements; implantation with a PPID and wearing an identifying tag of a specified type; for a dangerous dog, muzzling and being effectively controlled if not at its registered address; and signage.
  4. [69]
    In correspondence to the applicant at that time, she was reminded that both dogs were regulated and compliance was mandatory now and into the future. She was further reminded that compliance action would be undertaken should she fail to comply with the mandatory conditions. The letter to her said that consideration had been given to. her submissions of 15 July and that after careful consideration of the mitigating circumstances it had been decided to withdraw as the respondent to her application then in QCAT. That was a way of saying that the application would not be opposed. It was said that this was made in recognition of her personal circumstances. It referenced, the fact that they respondent was a community leader opposed to all domestic violence. The offer was dependent upon her understanding the legal obligations imposed on her under the Act and that they must be met.
  5. [70]
    The present situation whereby the dogs came to be re-impounded occurred because since August 2022, the applicant consistently failed to comply with the mandatory conditions.
  6. [71]
    First, she failed to provide an address for herself and the dogs, within 7 days of residential change. She says she misunderstood that requirement. She was also undergoing a housing crisis and had periods of homelessness.
  7. [72]
    Secondly, she failed to display the public notices on the property that it housed regulated dogs. She also failed to keep the regulated dogs in an enclosure and to stop the dogs from leaving the enclosure. She failed to muzzle the dogs when they were in a public place.
  8. [73]
    The dogs were seized three times after August 2022 due to the applicant’s failure to comply with the mandatory conditions.
  9. [74]
    A week after the 4 August 2022 release of the dogs to the Applicant on compassionate grounds, on 11 August 2022 the Council conducted a compliance check at the address known to Council the week prior and the Applicant and the dogs were missing and their whereabouts unknown.
  10. [75]
    On 27 August 2022 security footage was provided by a neighbour showing Holly escaping the front door of an address at 5 Coronation Street, Bray Park and running towards Francis Road. Holly was unrestrained and without a muzzle.
  11. [76]
    On 27 August 2022 further security footage was provided by a neighbour showing a person (not the Applicant) walk Holly onto the public street, unrestrained and without a muzzle. There was also further footage of Reuben being walked by a person (not the Applicant), without a leash, without a regulated dog collar, without a muzzle on a public street on which 2 members of the public were walking.
  12. [77]
    On 1 Sept 2022 Holly and Reuben were both impounded under warrant due to noncompliance with mandatory conditions and the ongoing risk to the public.
  13. [78]
    On 24 September 2022 the applicant reclaimed both dogs from the pound, following an assessment that the enclosure at the Applicant’s residence was compliant, and they were given back to her.
  14. [79]
    On 27 September 2022, despite having a compliant enclosure at her home, both dogs were unrestrained and unmuzzled on the property enclosure when a Council officer attended the residence. Both dogs barked aggressively at the veranda door when the Council officer approached.
  15. [80]
    On 5 October 2022 Holly was sighted and photographed on Ann Street Kallangur unsupervised, unmuzzled and unrestrained. At this time Holly was residing at an address which housed a compliant enclosure in the backyard.
  16. [81]
    On 18 October 2022 Ms Palmer advised she had moved to a new address in Bray Park. On 21 October 2022 a compliance inspection was undertaken, and a regulated dog compliant enclosure was situated at the back of the yard at that address. Then on 24 October 2022 the real estate agent for the property at that new address said that when they attended the property on 20 October 2022, the dogs were unrestrained, unsupervised, unmuzzled and out of their enclosure.
  17. [82]
    On 26 October 2022 the dogs were further impounded for persistent failure to comply with mandatory requirements and have remained there since. A temporary stay order on the destruction of the dogs was apparently made by the Tribunal, although neither party took me to it in the hearing.

The Applicant’s present situation

  1. [83]
    The Applicant gave evidence that she now has stable rental accommodation in Bald Hills, which is out of the Moreton Council region and is in the Brisbane City Council area. She swears and I accept, that she has a 6 month’ lease on what is an investment property for its owner, and that she has been assured that there will be the opportunity to extend the lease.
  2. [84]
    The evidence shows that the lessor of her rental property is aware of the prospect that there may be 2 declared dogs on the site and has given approval for extra fencing to be erected, which the applicant has already purchased. It has the appearance of construction site fencing and is some metres high, but will need to be fitted out with further wiring to make sure that hands cannot go into the relevant areas. She conceded that.
  3. [85]
    She is in a relatively secure financial situation now. She has some savings in the bank and an office manager's job for which she is paid a modest weekly fixed wage.
  4. [86]
    She has accumulated in excess of $13,000 in fines associated with penalties associated with these 2 animals. And she has had these fines referred to SPER, the State Penalties Enforcement Registry to enable her to pay them off in instalments.
  5. [87]
    The Respondent submits that while the Applicant says that she is now cognisant of her compliance obligations, that she has previously lived at residences which housed compliant enclosures and the dogs routinely escaped due to the Applicant’s decision to not house the dogs in the enclosure.
  6. [88]
    Once again the weight to be given to  that submission depends on whether it can responsibly be concluded that she has seen the error of her ways and it can be confidently be said that she has the willingness and ability to manage the dogs so as to ensure that her dogs, which  constitute, and are likely to constitute, a threat to the safety of other animals or to people, by attacking them or causing fear, may be satisfactorily dealt with other than by the destruction of the dogs.
  7. [89]
    The Respondent submits that the Applicant’s current address at 2137 Gympie Road, Bald Hills is adjacent to a church, 2 community halls offering community activities like exercise classes and approximately 500m from 2 schools and a childcare centre.
  8. [90]
    The Respondent submits that the wooden picket fencing surrounding the property is less than 1m in height on 3 boundaries and would easily be jumped by the two dogs in question, allowing two regulated dogs with histories of unprovoked attacks on people and animals to wander on public streets that house elderly people and children. That would be the case, but for the proposed full perimeter high mesh fencing she says will be in place.
  9. [91]
    The Respondent submits that the history of noncompliance of the Applicant and her continued belief that a regulated dog should be allowed to live as a normal dog amplifies the Respondents’ concern that the possibility of the menacing behaviour or an attack by the dogs remains unchanged, save that now the risk of injury to children and members of the public has increased due to proximity.

The recent past and current conduct and demeanour of the dogs

  1. [92]
    The Applicant conceded in her evidence before me that both dogs were dangerous to other animals and accepted that they are a high risk to other animals and to some people. She disputes the extent to which they are dangerous.
  2. [93]
    There is videotaped evidence taken only a week before the hearing was conducted before me. That shows the 2 animals in the local pound. And they are both behaving in a very aggressive and menacing fashion towards the council officer who approaches their cages, although obviously she does not enter into them. It is fair to say that if that behaviour occurred in the front yard of a private property, it would be severely threatening to persons walking past on the public footpath.
  3. [94]
    She says though, and I accept that, to a certain degree the behaviour being shown by them after a long period of having been held in a confined cage at the pound for many months is not typical.
  4. [95]
    On the other hand, there is video evidence of them behaving in a similar if not quite as aggressive behaviour from the veranda of a house where they were kept in 2022 when a council officer went there to deliver coded and coloured collars for the dogs. They were meant to be in the confined space but were in fact, inside the house and able to respond to what they saw as some kind of territorial threat. As the officer entered the front yard of the property both dogs began barking aggressively from the from veranda. The relevant officer was concerned for his safety at that time, because of that behaviour, particularly if they could have got to him.
  5. [96]
    She accepts that they did menace a person when they were out of their enclosure and not muzzled, but says that they did not attack the individual.
  6. [97]
    Ruben, in particular, becomes agitated if a dog is on the leash. She accepts that they are barking at individuals and lunging.
  7. [98]
    In relation to the incident involving the cyclist who came off his bike and hid near the dearly wheelie bins. She suggests that he was not being attacked. But it was their barking and size, which was enough to scare that individual.
  8. [99]
    She also accepted that if persons came within, say a metre of the dogs, they would be expected to lunge bark and be aggressive, but explained this as being because of their current anxiety in the pound and that once, she was able to get them out and back into a normal situation, they would adjust. In light of what happened in the incident with the police officer Constable Bryce on 2 February 2022, I have grave doubts about that contention.
  9. [100]
    The case presents a significant conundrum. That is because in the witness box, the applicant appears to be credible. honest and earnest in her desire to have these dogs back to look after them effectively, and to keep them properly managed and kept enclosed. On the other hand, she has a terribly poor history of compliance with what I accept were properly explained requirements to her, including the obvious requirement that the animals would be kept in the enclosure usually. She sought to challenge the evidence as to her propensity to leave the animals outside of the enclosure. She also believed, she said, that being in the house was permitted. There is even evidence to suggest that the dogs have never been put in the enclosure because of the absence of worn grass in the enclosure.
  10. [101]
    She claims to have been confused by the notion that the dogs needed to be kept in the enclosure “usually”. In fact, on one occasion when a council officer, Liam O'Callaghan went there, there was not even an enclosure present in the backyard. There is also evidence which he gave, that when queried about the absence of an enclosure, he had been told that it had been taken away on a truck to another address, but he could see no evidence that it had even been there or that it could have been moved. He swore that on 21 October 2022 he attended 5 Roper Place Kallangur 4503 where she had advised she had moved to that property about 10-12 days prior. The Applicant said that the dogs were residing at 5 Roper Place Kallangur QLD 4503 and that she did not have a regulated dog compliant enclosure and did not have the public notice signs displayed. She stated that the enclosure had been taken back to 5 Coronation Street Bray Park that morning on the back of a tip truck as she didn’t want to have to dismantle it to transport it. He concluded that the side access to the rear yard of 5 Roper Place was not large enough to remove the enclosure in one piece. She had stated she was moving back to 5 Coronation Street Bray Park QLD 4500 that afternoon. He then attended 5 Coronation Street Bray Park and observed that the regulated dog compliant enclosure was situated within the rear yard of the property and the public notice signs were attached to the front wall of the dwelling. The regulated dog compliant enclosure was in one piece and did not appear to have been moved there that day. He said he observed that the side access to 5 Coronation Street Bray Park QLD 4500 was not large for the enclosure to be brought through in one piece. In the end, though he conceded that it might have been possible that it had been moved, but with great difficulty. The Applicant said she had in fact moved it to another location.
  11. [102]
    Her former domestic partner Mr Mathews gave evidence that in effect, he had done things to sabotage her capacity to comply with these requirements, leaving gates open and the like. His evidence was generally vague and not particularly helpful, But I do accept that is conduct caused havoc for the applicant
  12. [103]
    None of this behaviour is even remotely satisfactory or in itself reassuring.
  13. [104]
    Ultimately, she accepts that she in fact, had no capacity to achieve compliance in the past few years of her life. And that was in part because she was exposed to a history of domestic violence and has also had a history of drug use, which she now contends she has left behind.
  14. [105]
    Less than a year ago, the council thought it appropriate on “humanitarian” grounds, to give her another opportunity to properly care for these dogs and to comply with the dog laws surrounding them. The Respondent now submits that while the applicant proposes that the threat posed by both dogs can be satisfactorily managed by full compliance with the mandatory conditions of regulated dog ownership, that she continues to point to an expectation that both dogs can live largely as unregulated dogs at the approved property. Apparently, the Respondent accepted a year ago that there was sufficient basis to give her an opportunity to see whether both dogs could be satisfactorily managed by full compliance with the mandatory conditions of regulated dog ownership, but her circumstances at that time meant that she could not
  15. [106]
    The same grounds that justified giving her and her dogs one further chance can be said to exist now, despite her not having properly responded to that gesture last year. She now lives in a different council jurisdiction and in a different location and is no longer in a domestic violence situation which previously had left her regularly without a safe place to live and where she could keep the dogs. She should no longer need to leave the dogs with others while she sorts out her affairs. There is clear evidence that in the past she moved the dogs to temporary accommodation controlled by others when some of these incidents occurred. She is no longer with the partner that had previously caused her trauma and which left her periodically homeless, and in all sorts of difficulty, both social and financial. She says that this is the first time she has had a job. She has a stable income. She has her children living with her, as I understand her evidence.
  16. [107]
    In her final address, the applicant essentially took the position that she recognized that had a handling of these animals in the past had been poor but she attributed this to the fact that drug use had been part of her life and that she had been “clean” for one and a half years. Her children had been put into child safety, and she had been exposed to domestic violence. As she put it, the dogs were where they are because of her, but pointed out that there had never been any serious injury to a person, and that they had only injured another dog. As I have said already, whether a child was injured in July 2021 remains shrouded in doubt.
  17. [108]
    She conceded that she had never taken the requirements imposed upon her seriously because she wasn't in a position to take them seriously. She now says she is in a position to do so.
  18. [109]
    She submits that she wants an opportunity to focus on what she has done and to become compliant She has rented a property to enable her to be compliant in a compliant environment.
  19. [110]
    She says that she has never had a proper job before nor a stable situation. She has domestic violence restraint orders in place against her former partner. She says she has had attempted to get the Brisbane City council to do a compliance check of her new yard and the enclosure, but have told her they will not do it at this stage
  20. [111]
    The respondent Council has previously taken the attitude that it was appropriate on humanitarian grounds to give her an opportunity to comply with its requirements and provide proper care for these dogs. I find, based on her evidence of her situation from the time when she was given the dogs back in August last year, that she was probably unable, in a practical sense, to meet those requirements because of what she was going through in her personal life. The Council had regard to her exposure to domestic violence and other matters in August last year when returning the dogs to her. She could not avail herself of the benefit of that indulgence last year, but in my view, she should have the benefit of that indulgence now.
  21. [112]
    I have had regard to all of the evidence, as well as the submissions before me, including that which I have not specifically referenced in these reasons. Accepting that that the exercise of discretion which follows, is to be based on whether the dogs constitute, or are likely to constitute, a threat to the safety of other animals or to people, by attacking them or causing fear, to the extent that the threat may only be satisfactorily dealt with by the destruction of the dog, I consider that at present the threat can not only be satisfactorily dealt with by the destruction of the dogs, and that there are presently other alternatives.
  22. [113]
    It seems to me that an appropriate exercise of discretion in the circumstances is to permit the applicant a proper opportunity now to comply with those requirements and to attempt to provide proper management of these dogs in her new work and home environment.
  23. [114]
    It will be conditional upon the Brisbane City Council, within whose jurisdiction  she now lives, inspecting and providing acknowledgement of compliance at her new premises. The relevant officers of the Brisbane City Council should be made aware of what is contained in these reasons and the history of the applicant’s dogs.
  24. [115]
    There seems to me to be little risk to the public in the orders that I propose. Unless the proposed enclosure at her new address is approved by the Council, these dogs will not be released by the Respondent here. The dogs will remain regulated dogs and the responsibilities that are placed upon her in consequence will still apply. Holly will remain regulated as a dangerous dog and Reuben, a regulated menacing dog.
  25. [116]
    There is no reason why if, in the future, the Applicant fails to manage these dogs in accordance with the Act that they may not again be the subject order for their destruction. It is therefore incumbent upon the Applicant to do everything necessary to ensure that never occurs. That means;
  1. The dogs must be implanted with a PPID and must, at all times, wear a collar with attached identification tag;
  1. The dogs must not be in place that is not the relevant place for the dog unless it is muzzled and under the effective control of someone who has the control of no more than 1 dog at the same time;
  1. An enclosure for the dogs must be maintained at or on the relevant place for the dogs and the dogs must, unless there is a reasonable excuse, be usually kept in the enclosure;
  1. A sign, supplied by the Council, must be placed at or near each entrance to the relevant place notifying the public that a relevant dog is kept at the place;
  1. The dogs must not be kept at a place other the relevant place for the dog; and
  1. If she changes residential address, she must give the Council notice of her residential address within 7 days.
  1. [117]
    If Applicant fails to manage these dogs in accordance with the Act, one can be reasonably confident that the Brisbane City Council will take whatever steps it sees as necessary, in enforcement of the Act, including if necessary and order for their destruction.

Disposition

  1. [118]
    For the reasons I have set out above, I am not satisfied that the discretion should be exercised to uphold the destruction order in respect of the dogs as I am satisfied that at present the threat can not only be satisfactorily dealt with by the destruction of the dogs, and that there are presently other alternatives.
  2. [119]
    I consider that the Applicant will be able to ensure that she abides by the requirements of the dangerous dog declarations. I therefore set aside the order of the Council for the destruction of the dogs.
  3. [120]
    There are still some compliance issues in regard to the enclosure which has yet to be formally inspected and certified by the Brisbane City Council and that the Brisbane City Council will need to satisfy itself that the requirements of the regulated dog declarations have been met before either dog may be released to her.
  4. [121]
    I therefore order that the decision of the Council made on 27 October 2022 to issue destruction orders is set aside and the application for review is upheld.

Footnotes

[1] https://dogsaustralia.org.au/members/breeds/breed-standards/Neapolitan-Mastiff

https://www.dogsnsw.org.au/Breeds/browse-all-breeds/157/Neapolitan-Mastiff/

[2] The Act, s 89(1).

[3] Ibid, s 89(2)(a).

[4] Ibid, s 89(2)(b).

[5] Ibis s 70

[6] Ibid, s 89(7).

[7] Bradshaw v Moreton Bay Regional Council [2017] QCATA 139.

[8] Briginshaw v Briginshaw (1938) 60 CLR 336.

Close

Editorial Notes

  • Published Case Name:

    Palmer v Moreton Bay Regional Council

  • Shortened Case Name:

    Palmer v Moreton Bay Regional Council

  • MNC:

    [2023] QCAT 337

  • Court:

    QCAT

  • Judge(s):

    Member Roney KC

  • Date:

    30 Aug 2023

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
Balens v Moreton Bay Regional Council [2018] QCAT 297
1 citation
Jump To
Cite 1 - [2018] QCAT 297
Bradshaw v Moreton Bay Regional Council [2017] QCATA 139
4 citations
Jump To
Cite 1 - [2017] QCATA 139
Cite 2 - [2017] QCATA 139
Cite 3 - [2017] QCATA 139
Cite 4 - [2017] QCATA 139
Briginshaw v Briginshaw (1938) 60 C.L.R 336
1 citation
Jump To
Cite 1 - (1938) 60 C.L.R 336
Thomas v Ipswich City Council [2015] QCATA 97
2 citations
Jump To
Cite 1 - [2015] QCATA 97
Cite 2 - [2015] QCATA 97

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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