Waters v Brisbane City Council
[2023] QCAT 388
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- Unreported Judgment
- Waters v Brisbane City Council[2023] QCAT 388
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Waters v Brisbane City Council[2023] QCAT 388
Waters v Brisbane City Council[2023] QCAT 388
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Waters v Brisbane City Council [2023] QCAT 388 |
PARTIES: | KYm nigel waters (applicant) v Brisbane City Council (respondent) |
APPLICATION NO/S: | GAR004-22 |
MATTER TYPE: | General administrative review matters |
DELIVERED ON: | 26 September 2023 |
HEARING DATE: | 20 September 2023 |
HEARD AT: | Brisbane |
DECISION OF: | Member Howe |
ORDERS: | The dangerous dog declaration made by Brisbane City Council on 17 September 2021 concerning the dog Roxy is confirmed. |
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the applicant’s dog attacked another dog – where the attack was without provocation – where the attack was a serious attack – where the attack is a serious attack there is no discretion not to declare the dog a dangerous dog Animal Management (Cats and Dogs) Act 2008 (Qld), s 89(2), s 89(7), s 90, s 94 Brisbane City Council v Roy [2020] QCATA 147 |
APPEARANCES & REPRESENTATION: | |
Applicant: | Self-represented |
Respondent: | Mark Thomas, City Legal |
REASONS FOR DECISION
- [1]Mr Waters is the owner of a female Shar Pei dog named Roxy. On 7 June 2021 Roxy was involved in a fight with another dog called Blossom, a female Cavoodle. Blossom sustained significant injuries in the fight. Blossom was 8 years old at the time.
- [2]Brisbane City Council (‘BCC’) gave Mr Waters notice that BCC proposed to declare Roxy to be a dangerous dog. He was asked to make submissions about that.
- [3]Mr Waters made submissions to the effect that the declaration should not be made but despite that BCC declared Roxy a dangerous dog on 17 September 2021. Mr Waters thereafter sought internal review of that decision but on 20 November 2021 the internal review confirmed the earlier decision.
- [4]On 29 November 2021 BCC issued a compliance notice to Mr Waters with respect to the inadequacy of the fencing of the property where Roxy was held and a number of other matters such as poor dangerous dog signage fixed to the fence.
- [5]On 4 January 2022 Mr Waters applied to the tribunal for review of the decision to declare Roxy a dangerous dog and subsequently the issuing of the compliance notice.
The evidence
- [6]The owner of Blossom, Ms Mollenhauer, gave evidence at hearing. Her evidence was that on 7 June 2021 she was walking Blossom on a lead and harness in McPherson Street when a brown Staffordshire type dog ran up from behind and attacked Blossom by latching onto Blossom’s rump and violently shaking Blossom back and forth.
- [7]The first she knew of the presence of the other dog was when she heard the sounds of its claws on the road or pavement as it ran up from behind them.
- [8]She screamed for help and took hold of one of the hind legs of the other dog which caused it to let go of Blossom. At that moment Blossom came loose from her harness and ran off down the road and the other dog chased her for a short distance but then stopped. The other dog was restrained by a tradesman working nearby. Blossom ran approximate 1 kilometre to her home where Mrs Mollenhauer found her at the front door.
- [9]Mrs Mollenhauer took her to a veterinary surgery where they discovered puncture wounds and air entering the thoracic cavity. The injuries required surgery, particularly in respect of air entering the thoracic cavity. After surgery, Blossom returned home the following day.
- [10]Ms Hardiker also gave evidence. She was driving her motor vehicle and as she turned into McPherson Street saw two dogs fighting. The larger dog had the smaller dog in its mouth and was shaking it. She thought the smaller dog might be killed. She subsequently found out that the smaller dog was called Blossom. She pulled her car over to assist. She saw Blossom’s owner trying to separate the dogs and then the larger dog released Blossom and Blossom ran down the street with its owner following.
- [11]Ms Hardiker was told by a man in the street who was present at the time that the larger dog came from Mr Waters house. She knocked on the front door of that house and spoke to a young teenage man and told him what had happened, that the larger dog had attacked the smaller. The young man took charge of the larger dog and stepped back inside the house with the larger dog, closing the door.
- [12]Mr Ahmed lived next door to the house occupied by Mr Waters and his family. He came out when he heard cries asking for help. Ms Mollenhauer had been crying out for assistance when the dogs were fighting. Ms Hardiker asked him if he knew who owned the larger dog and he indicated the Waters property next door.
- [13]Mr Ahmed gave evidence at hearing to the effect that prior to the incident with a dogfight Roxy had come next door to his property on one occasion and in consequence he could identify the larger dog involved in the fight with Blossom as Roxy.
- [14]Veterinary evidence by Dr Wilson confirmed the injuries sustained by Blossom were consistent with injuries sustained in a dog fight. Dr Wilson was not the veterinarian who had treated Blossom; that practitioner was no longer with the practice; but he was able to interpret and explain the clinical notes left by that practitioner. The records showed Blossom had been treated for four puncture wounds to the body, large amounts of dead space and air accumulating in the chest space. Dead space is a pocket created when skin is pulled away from the subcutaneous tissue. Dr Wilson said the air accumulating in the chest cavity constituted an emergency that necessitated treatment.
- [15]Dr Wilson did not find it unusual that Blossom ran for approximately a kilometre home after the fight, despite the injuries.
- [16]Mr Waters led no direct evidence about the dogfight. He was not home at the time. Indeed his evidence was that no one, not even his son who had apparently taken charge of Roxy after the fight, mentioned the matter to him. His evidence was that it was not until he was contacted by BCC days later that he first became aware of it.
- [17]Mr Waters tendered some few statements by people who essentially offered character references for Roxy as a dog that was friendly and non-threatening to them. One mentioned meeting Roxy on a few occasions and not feeling threatened or scared and another said her experience with Roxy was that it was “great with kids” and she did not feel threatened by it.
- [18]They are of no assistance in understanding what occurred when the dogs fought. I give little weight to either statement.
- [19]One statement offered a criticism of “the other dog” without attempting to identify the other dog as Blossom other than relying on a description given apparently given to the author by Mr Waters, of “the other dog”. That statement similarly deserves little weight.
- [20]None of the deponents of the statements tendered by Mr Waters attended the hearing to give evidence and made themselves available to be questioned about their broad brush, fairly irrelevant observations.
- [21]Blossom’s owner, Ms Mollenhauer, gave her evidence calmly and clearly and without exaggeration. I accept her as a truthful witness and I accept her evidence in full. Her evidence clearly identifies Roxy as the aggressor in the fight. Blossom was on a harness and lead at the time of the attack. Ms Mollenhauer and Blossom were in the public thoroughfare outside Mr Waters’ house and Roxy came from the house to attack the other, smaller dog, without provocation on the part of Blossom and without warning.
- [22]Mr Waters suggests, without evidence, that there was interaction between the dogs prior to the attack and further suggests that it could be argued Blossom shares some responsibility for what transpired. I reject that suggestion entirely. There is no evidence to support the contention. I find that Roxy was the dog that attacked Blossom, that there was no interaction between the dogs prior to the attack and that there was no provocation offered by Blossom to invite Roxy’s attack.
The legislation
- [23]The Appeal Tribunal explained the provisions of the Animal Management (Cats and Dogs) Act 2008 (Qld) (‘AM Act’) 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 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.[4]
- [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.[5]
- [22]‘Seriously attack’ means to attack in a way causing bodily harm, grievous bodily harm or death.[6] ‘Grievous bodily harm’ and ‘bodily harm’ have the meaning given by the Criminal Code Act 1899 (Qld) (‘Criminal Code’), s 1.[7] 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.[8] The local government must consider any written representations and evidence submitted by the dog owner.[9] If the local government is satisfied that a ground for making the declaration still exists, it must make the regulated dog declaration.[10]
- [24]I find Roxy seriously attacked Blossom on the day in question within the meaning of that expression in s 89(7) AM Act. The injuries suffered by Blossom amounted to bodily harm as defined in the Criminal Code, meaning they interfered with the health or comfort of Blossom. Accordingly, BCC was entitled to declare Roxy a dangerous dog under s 94 of the AM Act, subject to giving Mr Waters notice of the proposal to make that declaration notice and considering any written representations or evidence submitted by him.
- [25]Mr Rashleigh who was employed as an Animal Attack Officer by BCC gave the proposal to declare Roxy a dangerous dog to Mr Waters on 24 August 2021. According to his statement of evidence he attended at Mr Waters home but founded it unattended. He left the proposed declaration of a dangerous dog notice in the mailbox.
- [26]Mr Waters made submissions by email on 7 September 2021 in which Mr Waters said he challenged the making of the proposed declaration.
- [27]In his email he said no attempt had been made to communicate about the incident and gather evidence from him as owner of Roxy or further explain the evidence relied upon by counsel justifying Roxy being declared a dangerous dog.
- [28]I accept Mr Rashleigh left the proposal document in Mr Waters mailbox because there was no one home at the time.
- [29]Later that day he said he tried to call Mr Waters and left a message for him to contact Mr Rashleigh in relation to the proposal, but Mr Waters did not return the telephone call.
- [30]On 27 August 2021 Mr Rashleigh said he sent an email to Mr Waters in relation to the proposal and attached another copy of the proposal to the email.
- [31]Then on 6 September 2021 Mr Rashleigh again tried to telephone Mr Waters but the message bank for the telephone number was full and he was unable to leave a message.
- [32]The next day, 7 September 2021, Mr Rashleigh again tried to telephone for Mr Waters but again Mr Waters was not there and he left a message for Mr Waters to contact him. Later that same day Mr Waters made his email submissions concerning the proposal including the claim that the Council had made no attempt to communicate with him as owner of Roxy.
- [33]In his email response of 7 September 2021 to the proposal to declare Roxy a dangerous dog Mr Waters claimed that there was a significant and deliberate lack of communication being pursued by Mr Rashleigh and BCC generally. There is no substance to that assertion, given the attempts made by the Council officer to contract Mr Waters. It was rather Mr Waters who failed to respond to approaches made by BCC, whether because Mr Waters was too busy to respond or for some other reason.
- [34]Section 90 of the AM Act provides:
Notice of proposed declaration
- If a local government proposes to make a regulated dog declaration it must give any owner of the dog a notice (a proposed declaration notice) stating—
- the following details for the dog—
- breed;
- colour;
- sex;
- any other noticeable distinguishing features or marks; and
- the local government proposes to declare the dog to be a regulated dog; and
- the type of regulated dog declaration proposed to be made, other than for a restricted dog; and
- if the proposed declaration is for a dangerous dog declaration or menacing dog declaration—reasons for the proposed declaration; and
- an owner of the dog may make, within a stated period, written representations to show why the proposed declaration should not be made; and
…
- The stated period must end at least 14 days after the proposed declaration notice is given.
- The proposed declaration notice may be accompanied by a written opinion from a veterinary surgeon or other evidence about the dog’s breed.
- [35]The proposed declaration notice for a dangerous dog given to Mr Waters noted the following details of Roxy: the breed, Shar Pei; colour, chestnut; sex female; and a note to the effect that there were no distinguishing features.
- [36]The proposal was to declare Roxy a dangerous dog because Roxy had seriously attacked, or acted in a way that caused fear to a person or animal. That on 11 June 2021 BCC had received a complaint that Roxy had seriously attacked another dog. The complaint was substantiated by a victim account, witness accounts, injury photographs and a medical report detailing the injuries and the injuries were consistent with a severe dog attack.
- [37]The proposal invited Mr Waters to make submissions as to why BCC should not make the proposed declaration.
- [38]I find BCC complied with the requirements imposed by s 90. Had Mr Waters returned one of the messages left to telephone Mr Rashleigh he would perhaps have had opportunity to learn more, but the proposed notice of intention to declare Roxy a dangerous dog complied with the basic legislative requirements.
- [39]Further, Mr Waters’ son was surely aware of the events that transpired, at least immediately following the attack on Blossom, and one might reasonably assume there would have been some discussion between father and son about the matter prior to Mr Waters making his email submissions.
- [40]In his email of 27 August 2021, Mr Rashleigh invited Mr Waters to telephone him or email him if he had questions. Mr Waters did not avail himself of that opportunity.
- [41]Well before Mr Rashleigh’s involvement, another BCC officer, Mr Wenck, had endeavoured to contact Mr Waters about the dog attack, both by attending Mr Waters’ premises and by telephone on more than one occasion. On 12 June 2021 he had attended the premises and spoken to a male juvenile there he said, but Mr Waters was not present. He asked that Mr Waters or Mrs Waters contact him. Mr Waters did telephone back and Mr Wenck’s evidence is that he gave Mr Waters an account of what had transpired on 7 June 2021.
- [42]As stated, I determine that BCC complied with the notice requirements set by s 90, and further, I reject the suggestion by Mr Waters that there was a significant and deliberate lack of communication on the part of BCC.
- [43]As stated in Brisbane City Council v Roy:
[54] If the local government is satisfied about the facts out of which the power to make a declaration about a dog arises, the local government must, by s 94(2) of the AM Act, make the declaration.
[55] The ‘relevant ground’ in s 94(2) is a reference to the considerations which must be taken into account in exercising the power to make a regulated dog declaration to which we have earlier referred, that is ss 89(2) and (3).
[56] Use of the word ‘must’ in s 94 indicates that the power granted is required to be exercised. 57 There is no discretionary element involved save that the decision maker must be satisfied that the relevant ground under s 89 is made out. If it is not, the regulated dog declaration proposed cannot be made.
- [44]Here, the relevant ground is satisfied. I have found that Roxy seriously attacked Blossom within the meaning of that term as defined in s 89(7) AM Act.
- [45]There is nothing in either the submissions made by Mr Waters to the Council in his email of 7 September 2021 or the evidence at hearing to challenge that finding. Section 94(2) therefore obliges me to make the same finding as did BCC, namely, that a dangerous dog declaration be made in respect of Roxy.
- [46]Whether Roxy displays nothing but affection to the other animals and humans in her family, as some of the evidence suggests, and is good with children, is irrelevant and cannot displace the obligation to declare the dog a dangerous dog given a serious attack on another dog has been made out.