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  4. O'Donnell v Brisbane City Council - [2024] QCAT 112

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O'Donnell v Brisbane City Council[2024] QCAT 112

O'Donnell v Brisbane City Council[2024] QCAT 112

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

O'Donnell v Brisbane City Council [2024] QCAT 112

PARTIES:

Thomas O'Donnell

(applicant)

v

Brisbane City CounCil

(respondent)

APPLICATION NO/S:

GAR531-21, GAR664-21

MATTER TYPE:

General administrative review matters

DELIVERED ON:

13 March 2024

HEARING DATE:

28 – 31 August 2023

HEARD AT:

Brisbane

DECISION OF:

Member Bridgman

ORDERS:

  1. In the matter of GAR531-21, the stay application is dismissed.
  2. In the matter of GAR664-21, the declaration of Boof as a dangerous dog is confirmed.

CATCHWORDS:

ADMINISTRATIVE TRIBUNAL – animals – dangerous dog – where dangerous dog declaration made – where no direct evidence of which of two dogs inflicted bites – where challenge to the fact of an attack on grounds of provocation – consideration of the scope of power conferred by Part 4 of the Animal Management Act – whether decision to make a dangerous dog declaration is discretionary – factors relevant to making a dangerous dog declaration if it is discretionary – where dog attack caused fear – whether propensity or ordinary character of dog relevant to dangerous dog declaration

Animal Management (Dogs and Cats) Act 2008 (Qld), s 3, s 4, s 89, Sch 1

Brisbane City Council v Roy [2020] QCATA 147

Lee v Brisbane City Council [2012] QCA 284

APPEARANCES & REPRESENTATION:

Applicant:

Mr J. Hastie of Counsel instructed by Coves & Co

Respondent:

Mr M. Thomas, City Legal

REASONS FOR DECISION

  1. [1]
    Mr Thomas O'Donnell applied for review of a decision by the Brisbane City Council to declare Mr O'Donnell’s dog, Boof, to be a dangerous dog under the Animal Management (Dogs and Cats) Act 2008 (Qld) (‘Animal Management Act’).
  2. [2]
    Mr O'Donnell also sought a stay of the decision. The two matters were heard and determined together.
  3. [3]
    The Tribunal places on record appreciation for the way the parties conducted the hearing and for providing hearing books that consolidated the filed materials; and for Coves & Co providing searchable copies of those hearing books and the transcripts.

Background

  1. [4]
    On Saturday 17 July 2021, sometime before 6.00pm, Abbey Crawford and her sister Candice Crawford were walking with their dogs, Leila and Kamura, on the grounds of St Patrick’s Church in Fortitude Valley.
  2. [5]
    Mr O'Donnell lives, and has his professional offices as a solicitor, in the Old Presbytery, a separate building on the South-West corner of the church grounds. He had been out shopping, and after returning home emerged from the dwelling to collect his goods from his car. Boof, a large American Staffordshire Terrier x Boxer dog, followed him onto the grounds of the church. Boof was off-lead and without a collar as was Mr O'Donnell’s habit when the dog was on its own home territory and not heading out of the grounds.
  3. [6]
    Kamura, a Husky x Kelpie dog, on Mr O'Donnell’s evidence, barked, and Boof followed the line of a short fence to approach Kamura on a grassed area under trees towards the North-East corner.
  4. [7]
    The two dogs met on the grassed area beyond the short fence and interacted. The interaction escalated into the dogs fighting in close proximity to both Ms Candice Crawford and Mr O'Donnell who had also crossed to the grassed area.
  5. [8]
    During the incident Kamura, Ms Candice Crawford and Ms Abbey Crawford suffered from dog bites.
  6. [9]
    It was conceded by Mr O'Donnell that the bites to Kamura were logically inflicted by Boof and amounted to bodily harm; that Ms Candice Crawford suffered bodily harm; and Ms Abbey Crawford, grievous bodily harm. The Tribunal is satisfied that these three concessions are proper and supported by the evidence.
  7. [10]
    Mr O'Donnell contended Ms Candice Crawford and Ms Abbey Crawford were bitten not by Boof, but by Kamura, who was agitated in the incident. It was alternatively contended that it is not possible, on the evidence, to conclude that Boof and not Kamura inflicted the bites.
  8. [11]
    It seems the two dogs had interacted some 3 weeks earlier when Kamura barked at and attempted to mount Boof. This history between the dogs was said by expert witnesses to be significant.
  9. [12]
    Ms Abbey Crawford was hospitalised for almost 3 weeks, and treated with as many as 9 surgeries and various medications for a serious infection to the dog bite wounds. That treatment was unsuccessful and Ms Crawford’s left index finger was amputated below the proximal interphalangeal joint.
  10. [13]
    On 20 July 2021, while hospitalisated, Ms Abbey Crawford complained to the Brisbane City Council, leading ultimately to a decision by the Council to declare Boof a dangerous dog and thence to the present review. Ms Crawford also instituted proceedings for personal injuries, evidence of which was before the Tribunal and the subject of cross-examination.
  11. [14]
    On 21 July 2021 Mr O'Donnell also lodged a complaint about the incident. That complaint was identified as also being about Ms Crawford’s complaint and the two were merged. Mr O'Donnell’s complaint per se was not the subject of this review.

QCAT’s review

  1. [15]
    The purpose of an external review under s. 188 of the Animal Management Act is to produce the correct and preferable decision: see Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) ss. 17-20. The review is by way of a fresh hearing on the merits: s. 20(2). In reaching the correct and preferable decision, the Tribunal effectively stands in the shoes of the original decision maker: s. 19(c).
  2. [16]
    The role of the Respondent Council in review proceedings is not to advocate for the correctness of the original decision but to assist the Tribunal to reach that correct and preferable decision: s. 21; QCAT Practice Direction No. 3 of 2013.
  3. [17]
    The Tribunal may confirm or amend the decision; set it aside and substitute its own decision; or set it aside and return the matter to the decision maker for reconsideration with directions considered appropriate: QCAT Act s. 24(1).
  4. [18]
    The Tribunal is not reviewing the original decision process, such as whether the investigation or complaint process was infected by error or bias (a matter raised at hearing for Mr O'Donnell but ultimately not pursued). A correct and preferable decision would not, of course, be so infected, and evidence affected by such a defect may be rejected or weighed accordingly.
  5. [19]
    As to the purpose and effect of the Animal Management Act, I respectfully adopt the comprehensive statements of the learned members in Brisbane City Council v Roy [2020] QCATA 147 and do not repeat them here.
  6. [20]
    The steps in making a dangerous dog determination were conveniently stated by an Appeals Tribunal in Imbrogno v Brisbane City Council [2017] QCATA 148:
  1. [47]
    The steps required to be undertaken in deciding whether to make a regulated dog declaration under Chapter 4, Part 4 of the [Animal Management] Act include the local government giving to the owner of a dog a proposed declaration notice, the dog owner being given the opportunity to make written representations and provide evidence, the local government considering any representations and evidence by the dog owner and the local government deciding whether to make a regulated dog declaration.
  1. [21]
    See also Van Cuylenburg v Tablelands Regional Council [2012] QCATA 60.
  2. [22]
    It was not contended that the Respondent erred in any of these procedural steps.
  3. [23]
    In reaching a correct and preferable decision on the facts here, the Tribunal must determine if Boof:
    1. has seriously attacked, or acted in a way that caused fear to, a person or another animal; or
    2. 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]
  4. [24]
    Per the Animal Management Act s. 89(7), “seriously attack means to attack in a way causing bodily harm, grievous bodily harm or death.”[2]
  5. [25]
    The Tribunal must decide, if it can, on the evidence, whether the dog bites to Ms Abbey Crawford and Ms Candice Crawford were inflicted by Boof; and if so, were the bites a serious attack by Boof; and whether the bodily harm to Kamura was the result of a serious attack by Boof.

Evidence

  1. [26]
    The parties tendered bundles of documents prepared by the parties including statements and affidavits of the Applicant, each of the Crawford sisters, veterinary surgeons, a dog trainer, and some 17 individuals as to matters about the church management of the grounds, Mr O'Donnell’s good character and the dog Boof’s temperament. The list of materials before the Tribunal is in the Attachment to these reasons.
  2. [27]
    Oral evidence was given, including cross-examination, by:
    1. Mr O'Donnell;
    2. Ms Karyn Olive (former partner of Mr O'Donnell and original purchaser of Boof from Gympie RSPCA);
    3. Ms Anne McNulty (parishioner of St Patrick’s);
    4. Mr Colin Wilson (expert dog trainer);
    5. Dr Kersti Seksel (expert animal behaviourist, veterinarian);
    6. Ms Abbey Crawford;
    7. Ms Candice Crawford.
  3. [28]
    Mr Roger Bishop, parishioner of St Patrick’s, was unavailable for oral evidence due to a medical emergency. The parties agreed to his affidavit (without reliance on paragraph 18) going into evidence without cross-examination.[3]
  4. [29]
    Additional documents were exhibited including photographs of the church grounds and a video.
  5. [30]
    The Council officers’ affidavits were admitted without the need for cross-examination.[4]
  6. [31]
    Mr O'Donnell’s initial account of the incident, made soon after he learned of a complaint, referred to the Husky cross as Laura, being a red cattle dog/kelpie cross.[5]  He later asserted that this was a reference to the dog Kamura and he was mistaken about the correct name. That assertion was unchallenged.
  7. [32]
    During the incident, it seems Kamura started to mouth at or bite Boof. On Mr O'Donnell’s account, Kamura rapidly approached Boof unprovoked. The sisters’ accounts are to the contrary: Boof was the aggressor. In any event, the larger dog quickly subdued the smaller, turning him over, placing a paw on his chest, and jaws around his neck. Kamura’s head and mouth were free and he was moving his head from side to side.
  8. [33]
    Mr O'Donnell’s evidence was that he considered the dogs were “sorting things out” and his intervention was not necessary.
  9. [34]
    Ms Candice Crawford fell close to the fighting dogs. Ms Abbey Crawford, who had been exiting the Church grounds with Leila on a lead, heard her sister scream and she ran towards the animals, believing her sister and Kamura were in danger. Ms Abbey Crawford was screaming and shouting and began kicking and hitting Boof, although the extent of hitting and kicking was not agreed upon. Mr O'Donnell (on his evidence) then became concerned for Ms Candice Crawford’s safety and he intervened, hauling Boof off by the scruff.
  10. [35]
    This incident took place over less than a minute during which injuries by way of dog bites were inflicted on Kamura, Ms Candice Crawford, and Ms Abbey Crawford. Boof suffered minor injuries that did not require treatment.[6]
  11. [36]
    On Ms Candice Crawford’s evidence, she feared Kamura would be killed by Boof  in front of her.[7] Ms Abbey Crawford’s evidence was that she feared her sister would be seriously attacked by Boof.[8]
  12. [37]
    Dr Seksel’s evidence was that few dog fights result in the death of a dog,[9] and that the actions of the Crawford sisters likely exacerbated the situation.
  13. [38]
    Her recommendation in such situations, presumably for an informed and skilled intervener, was quite different from the actions taken by the sisters who it seems were not informed and skilled at managing dog fights.

Consideration

  1. [39]
    It is well established on the evidence, and the Tribunal finds, that the extent of injury to Kamura and Ms Candice Crawford amounted to bodily harm and to Ms Abbey Crawford, grievous bodily harm.[10]
  2. [40]
    As noted above it is conceded that Boof caused bodily harm to Kamura, though Mr O'Donnell’s submission is that the harm did not arise in the course of an attack by Boof on Kamura, but in Boof subduing Kamura’s attack. The Applicant in final submissions stated as follows:

Even if the Tribunal is satisfied, to the requisite standard, that Boof did bite Abbey, it does not follow that Boof “seriously attacked” Abbey. In fact, the contrary is true. The bite was either unintentional or a direct response to the events which had occurred, that is, Kamura scratching and biting at his face and Abbey having punched and kicked him.

  1. [41]
    The Respondent asserts that the evidence shows that Boof attacked Kamura.
  2. [42]
    The requisite standard here is the balance of probabilities considering the seriousness of a dangerous dog declaration both for the dog and its owner and for the public safety. For application of Briginshaw v Briginshaw[11] to Animal Management Act proceedings see Mitchell v Gympie Regional Council.[12] Neither Party drew the Tribunal’s attention to Briginshaw.
  3. [43]
    There were three eyewitnesses to the incident on 17 July 2021: the Applicant (Mr O'Donnell), and the two Crawford sisters, each a victim of dog bites.
  4. [44]
    All three recorded their recollection of events soon after. Ms Abbey Crawford reported the incident in a telephone call to the Council on 20 July 2021 and was interviewed by Council officers on 22 July 2021. On 22 July 2021 Ms Candice Crawford was also interviewed. The transcripts of the telephone call and interviews were in evidence. Mr O'Donnell made an affidavit dated 24 August 2021.
  5. [45]
    Mr O'Donnell, although he did not see the dog bites, asserts the injuries to the sisters were not caused by Boof. His evidence and submissions include the following assertions.

I can recall the responsible person in charge of Laura complaining of being bitten by Laura as she attempted to drag Laura away from the fight.[13]

… the Complainant fell over and was heard to complain that she had been bitten by Laura.[14]

  1. [46]
    Ms Candice Crawford’s evidence is to the contrary:
  1. 9.
    I went to grab ' Kamura 's' lead , and the big dog turned and bit me on my left hand . I fell over and screamed.
  1. 10.
    My sister Abbey ran over to help me and started to kick at the big dog , the big dog turned and bit my sister on her hand.[15]
  1. [47]
    Ms Abbey Crawford’s evidence is similar.
  1. 11.
    I watched the large dog jump over 'Kamura ' and pin him to the ground and was biting Kumara multiple times .
  1. 12.
    I recall the attacking dog started having a go at my sister, and she seemed to be in a panic and frozen. I ran over to help Candice, and pushed her away. I began kicking at the attacking dog, during this the attacking dog turned and bit me on my left hand. I kicked the dog and it seemed to roll off 'Kamura '.[16]
  1. [48]
    Oral evidence was to similar effect. Under cross-examination Ms Abbey Crawford’s clear evidence was that Boof bit her: she was certain of that.[17] Her certainty was informed by the fact of Kamura, being pinned to the ground by the larger dog, was unable to inflict the bite on her.[18]
  2. [49]
    Ms Candice Crawford under cross-examination admitted she did not see the bite to her hand but was certain it was Boof and not Kamura that bit her because Kamura was pinned to the ground by the larger dog.[19]
  3. [50]
    She also admitted that she did not see her sister being bitten.[20]
  4. [51]
    Mr O'Donnell submitted it was unlikely that Boof inflicted the injuries as his mouth was around Kamura’s neck. The Crawfords’ evidence was that Boof released his hold on Kamura, freeing his mouth and therefore able to inflict the bites whereas Kamura was pinned under the larger dog and unable to reach or bite the sisters.
  5. [52]
    Dr Seksel was not able to give an opinion as to the probability of the bites being inflicted by Kamura rather than Boof, merely that it was possible. The hitting and kicking may have resulted in Boof releasing his mouth hold.
  6. [53]
    Kamura and Boof had interacted before this event. The evidence was that Kamura attempted to mount Boof causing agitation and anxiety in Boof.[21] Boof’s response to Kamura on the day in question was highly likely to be influenced by this prior negative interaction, at least to the extent of Boof being wary of Kamura.[22]
  7. [54]
    In Dr Seksel’s expert opinion, Boof is an anxious dog, and she made recommendations about his future management[23] while opining as follows:[24]

Unnecessarily enforcing isolation upon Boof by placing on him the restrictions of a regulated 'Dangerous Dog' is likely to lead to a deterioration in his behaviour and, more importantly, his mental health and has serious welfare implications. I am of the opinion that fearful, anxious and reactive dogs can be better managed by combining environmental management with behaviour modification techniques and sometimes medication, to improve not only the dog's welfare but also the safety of the community.

  1. [55]
    Dr Seksel’s expert report noted at p. 22, responding to a question about Boof’s likely response to being hit or kicked:

In my opinion the actions of [Abbey] would have increased the arousal of both Boof and Kamura, thus escalating the situation and increasing the risk of injury. In my opinion the kicking has inadvertently provoked the dogs resulting in the biting behaviour.

  1. [56]
    In summary, Dr Seksel:
    1. is unable to say which dog bit Ms Abbey Crawford;
    2. is of the opinion that biting behaviour of both dogs was likely escalated by the hitting and kicking;
    3. noted the prior interactions may have influenced Boof’s response to Kamura in this instance;
    4. opined if Boof had been on a lead at the time the incident would have unfolded differently.
  2. [57]
    More generally there was ample evidence from the Applicant that Boof is of gentle temperament, although anxious, and treated with veterinary medications to manage that anxiety. While temperament is important to understanding how a dog is managed (confirmed by Dr Seksel), the test under the Animal Management Act is not of temperament but referrable to behaviour, specifically the acts of the animal, or predicted behaviour, mentioned in s. 89(2).
  3. [58]
    Further, much was made of the private nature of the Church grounds and whether or not the sisters and their dogs were there with permission, express or implied. The test under the Animal Management Act is about the dog’s conduct; trespass is not a statutory factor.[25] The legal character of the Crawfords’ presence on the Church grounds is not relevant on these facts.[26]
  4. [59]
    Further there is no evidence that Boof was responding territorially to their presence, and such behaviour would be contrary to the extensive temperament evidence.
  5. [60]
    Mr O'Donnell asserts it was Kamura, not Boof that bit Ms Abbey Crawford; and alternatively, it is not possible on the evidence to conclude that Boof (and not Kamura) inflicted the wounds. Further, even if it was Boof, Mr O'Donnell in final submissions urged a characterisation of the incident as not involving a serious attack but a response to provocation:
  1. 5.
    The evidence falls very well short of enabling the Tribunal to be satisfied that Boof serious attacked Abbey or Kamura. Indeed, the evidence demonstrates that no such serious attack occurred.
  1. 6.
    The evidence does not establish which dog bit Abbey. It is equally possible that it was Kamura who bit her.
  1. 7.
    A serious attack necessarily involves hostility or aggression. An animal which is provoked and, in response, causes injury to another animal would not ordinarily be regarded as having attacked that other animal, instead, it would be viewed as having defended itself.[27]
  1. 8.
    So, whilst it may be accepted that Boof caused some (fairly minor) injuries to Kamura, that does not mean that he seriously attacked Kamura. A finding that there was a serious attack requires more than mere injury. The evidence establishes that Boof did not act aggressively or, at the very least, is insufficient to demonstrate that Boof did act aggressively.
  1. [61]
    The Respondent Council in its Submissions of 28 April 2023 characterised the Tribunal’s challenge in terms of which witness was to be believed:
  1. 28.
    It is clearly a matter for the Tribunal to decide the competing versions of the factual matters at hearing.
  1. 29.
    Council submits that the primary issues for the Tribunal to determine are whether there were attacks on 17 July 2021 as alleged, whether the attacks were serious and whether the Applicant’s dog “Boof” was responsible for the attacks.”
  1. [62]
    The Applicant submitted the sisters’ evidence was unreliable, shifting over time, or inconsistent with other, reliable evidence.[28] In my view the inconsistencies and changes were not so significant that the evidence should be discounted.
  2. [63]
    I found all three main witnesses, Mr O'Donnell and the two Crawford sisters, to be truthful in their accounts, and in context, reliable. Their divergences about whether Boof inflicted the bites lie in interpretation, not direct observation. Each witness was reasonably consistent across time with their understanding of events; oral evidence was given in apparent good faith including concessions against interest where appropriate.
  3. [64]
    The sisters, especially Ms Candice Crawford, were at times combative under cross examination and prone to somewhat discursive answers. While not ideal witnesses, the testimony of each sister was in my view given honestly, and in the circumstances of their inexperience in legal proceedings and the heightened experience of the hearing, to the best of their ability. Each conceded inconsistencies when put to them and were willing to admit error or mistake. For example, Ms Candice Crawford conceded she did not know the layout of Mr O'Donnell’s house and could not possibly know whether a particular window was a bedroom window or not. Overall, the written evidence and oral testimony of each sister was consistent and accepted by the Tribunal as honest and reliable.
  4. [65]
    Mr O'Donnell’s testimony showed his considerable forensic experience. He was honest, straightforward, consistent, and a reliable historian.
  5. [66]
    All three witnesses were invited in oral evidence to interpret the critical events leading to the dog bites. The Tribunal does not accept interpretations by these witnesses of which dog bit because no witness saw the bites. Rather, the Tribunal is tasked with reaching a conclusion based upon the witnesses’ more relevant and objective reporting of what they did see and hear, a finding that relies on inference from reliable evidence.
  6. [67]
    The evidence establishes that the sisters and their dogs entered the grounds shortly before Mr O'Donnell and Boof emerged from the building. Kamura and Boof, having previously interacted and on the experts’ evidence likely formed an uneasy relationship, met. Kamura had likely slipped his collar and Boof was without collar or lead. This interaction, however it started, rapidly moved to Kamura being dominated by Boof, the two dogs moving, and Kamura being pinned to the ground. Ms Candice Crawford fell near the two dogs during this fight and was bitten; Ms Abbey Crawford rushed toward her sister and the dogs and hit and kicked Boof. At this point she was bitten. The dogs were separated by their owners and the sisters and their dogs immediately departed.
  7. [68]
    No-one saw the bites to either Ms Candice Crawford or Ms Abbey Crawford. Any finding that Boof inflicted bites to either is a matter of inference from the facts, to be drawn by the Tribunal as a finding of fact.
  8. [69]
    The Tribunal concludes that the evidence supports the contention, to the requisite standard, that the bite wounds to both Ms Candice Crawford and Ms Abbey Crawford were inflicted by Boof because:
    1. Kamura was pinned on his back and unable to reach far enough to bite Ms Candice Crawford where she fell, whether Boof had a hold on his neck or not;
    2. Ms Abbey Crawford hit and kicked Boof;
    3. on being hit and kicked, Boof released Kamura’s neck while keeping the smaller dog pinned with his paws and body weight, enabling him to bite at Ms Abbey Crawford;
    4. on the balance of probabilities, taking into account the seriousness of the finding, Boof inflicted the bite wound on Ms Abbey Crawford due to her proximity to Boof and her hitting and kicking him, and Kamura being positioned so that he could not inflict the bite;
    5. the bite on Ms Candice Crawford was likewise, to the requisite standard, inflicted by Boof, probably before Kamura was pinned to the ground.
  9. [70]
    In my view the conclusion that the bites were inflicted were Boof is based on compelling inference from facts proven to a high standard.

Provocation

  1. [71]
    The Tribunal was urged by the Applicant to find that Boof did not “attack” but was responding to provocation:
  1. [7]
    A serious attack necessarily involves hostility or aggression. An animal which is provoked and, in response, causes injury to another animal would not ordinarily be regarded as having attacked that other animal, instead, it would be viewed as having defended itself.
  1. …
  1. [54]
    … to the extent that the Tribunal is satisfied that it was Boof who bit Abbey, was not an unprovoked act of aggression. It was, ultimately, common ground that Abbey was attempting to break up the entanglement between Boof and Kamura by, amongst other things, kicking and punching Boof. She could very well have been inadvertently bitten in that process. In any case, any response by Boof needs to be understood in the context of a situation where:
  1. (a)
    Kamura had initiated contact with Boof by biting and scratching at his face; and
  1. (b)
    Abbey then began to kick, punch and scream at Boof.[29]
  1. [72]
    The parties drew the Tribunal’s attention to Lee v Brisbane City Council [2012] QCA 284 (‘Lee’) as authority for the relevance of provocation in deciding whether Boof seriously attacked Kamura and either or both Ms Candice Crawford and Ms Abbey Crawford.
  2. [73]
    In Lee, two dogs, a German Shephard and a Cavalier King Charles Spaniel, fought. The smaller dog was aggressive towards the larger dog. The larger dog bit and seriously injured the smaller dog. The German Shephard was declared a dangerous dog. The Tribunal upheld the declaration finding a serious attack even in the circumstances of provocation.[30] Leave to appeal was refused.[31]
  3. [74]
    The Court of Appeal also refused leave to appeal. The relevant passage is as follows.
  1. [11]
    … It will be a question of fact whether what a dog does amounts to an attack for the purposes of the section, and in deciding the question, hostile behaviour by the animal which is the victim may be relevant. There may be a factual issue, for example, as to whether one dog biting another is attacking or simply defending itself (although where there has been no physical contact preceding the bite, defence is a less likely conclusion). But as a matter of law, there is nothing in s 89 which precludes a finding of attack where the behaviour of the dog in question is a response to aggression from its victim. To put it another way, it is not a pre-requisite to a finding of serious attack by one dog on another that there be a finding that the second dog has itself done nothing which could be described as an attack.
  1. [12]
    There is no reason to doubt the correctness of the appeal tribunal’s approach in regarding the proposition that the spaniel might first have attacked as not precluding a finding of serious attack by the German Shepherd. There was evidence to support a finding that the German Shepherd had committed an attack of that kind.
  1. [75]
    The High Court refused special leave[32] noting:
  1. [4]
    The Court of Appeal concluded that a finding of serious attack by one dog on another was not precluded by the fact that the second dog might have first attacked.
  1. …
  1. [6]
    We see no reason to doubt the correctness of the Court of Appeal's conclusion.
  1. [76]
    The prior interaction between Boof and Kamura, in which it was said Kamura tried to mount Boof, on the expert evidence of Dr Seksel and Mr Wilson, was likely to have made Boof anxious or wary of Kamura. This supports the notion that Boof, in the face of Kamura’s barking and likely biting at him, may have responded more aggressively than his general demeanour indicated. In the circumstances, and on the expert testimony, Boof’s behaviour was likely to be elevated rather than placid and wary. I do not place great weight on this observation but note it is consistent with the evidence of the sisters that Boof was aggressive, or responded aggressively, to Kamura.
  2. [77]
    The Tribunal concludes that Boof responded to the presence and barking and possible biting of the other dog, in the context of the prior interaction and its effect on Boof’s response. The sisters’ elevated emotional state and the kicking and punching no doubt affected both dogs and may have prolonged the incident.[33]
  3. [78]
    However, in my opinion, the injuries were caused by a serious attack by Boof and not by Boof merely responding to aggression by Kamura or Ms Crawford. I find the bites were inflicted by Boof, not Kamura for reasons stated at [69]-[70] above.
  4. [79]
    The mere possibility of inadvertence[34] is not sufficient to displace this conclusion which, as stated above, is compelling on the facts.
  5. [80]
    The application for review should be dismissed on the basis that:
    1. Boof seriously attacked Ms Abbey Crawford causing grievous bodily harm;
    2. Boof seriously attacked Ms Candice Crawford causing bodily harm;
    3. Boof seriously attacked an animal, the dog Kamura, causing bodily harm.

Cause fear: s. 89(2)(a), second limb

  1. [81]
    I also find that Boof acted in a way that caused fear to Ms Candice Crawford and Ms Abbey Crawford, being the alternative element in s. 89(2)(a).
  2. [82]
    The fear was, on the evidence, incontrovertibly real: the sisters and the Applicant’s evidence was clear that both sisters screamed; one sister fell; the other ran towards her and the dogs; and Boof was hit and kicked. Dr Seksel said the fearful actions of the sisters may have added to the dogs’ arousal. However, the fear in the sisters arose from the acts of Boof in subduing Kamura. In my view, the test is objective but measured against an ordinary person’s experience and skills in managing dogs, not against the response of a skilled dog handler. The fear was subjectively real in each of the sisters, and in the circumstances, on the evidence before me, objectively likely.
  3. [83]
    I find that Boof acted in a way that caused fear in Ms Candice Crawford and Ms Abbey Crawford, and would dismiss the appeal on that basis.
  4. [84]
    Much was made of Boof’s generally placid demeanour, said to indicate he was unlikely to be aggressive.[35] The two expert witnesses, each conceding their interaction with Boof was structured and for a purpose, opined that Boof is not, by demeanour, aggressive. Rather he is anxious though of friendly temperament. Mr Wilson’s more extensive interaction led him to conclude that Boof experienced separation anxiety, a condition that of itself was not causative of aggression.
  5. [85]
    The Tribunal accepts that Boof’s general demeanour is placid and friendly. The evidence of positive interactions with various other dogs is also accepted.
  6. [86]
    However, the Animal Management Act in s. 89(2)(b) contemplates propensity in terms of a dog’s actual behaviour not its character.
  7. [87]
    Section 89(2)(b) provides that a dangerous dog declaration may be made if the dog:

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. [88]
    This provision was not raised in hearing but was canvassed by Mr O'Donnell in submissions to Council.[36]
  2. [89]
    A finding for s. 89(2)(a) is based in the fact of a serious attack or causing fear. Section 89(2)(b) is enlivened by an opinion of an authorised person that past behaviour indicates the dog may seriously attack, or act in a way that causes fear. This provision looks forward to the risk of a serious attack or causing fear. The opinion must be objectively formed, that is, reasonable in the view of a reasonable authorised person, being one possessed of necessary skill and experience.[37] It is not an opinion open to the Tribunal, only to an authorised person, comprising a jurisdictional fact prerequisite to making a declaration.
  3. [90]
    The construction of this provision is awkward. It seems to allow a declaration to protect the community from future harm, given evidence of historical behaviour towards “a person or another animal”, but refers to future attack or fear by reference to “the person or animal” (emphasis added). A narrow reading might limit the opinion to the circumstances of the historical behaviour and the persons or animals involved in that history.
  4. [91]
    The use of the phrase ‘may … seriously attack’ etcetera speaks of risk - a probability or possibility of future serious attack or causing fear.
  5. [92]
    In my opinion the correct reading of s. 89(2)(b) is that a decision maker is empowered to make a declaration if an authorised person, because of past behaviour towards a person or animal, forms an opinion that the dog may in the future seriously attack or cause fear in a person or animal whether the same or different person or animal.
  6. [93]
    This reading is consistent with the public protection purposes implicit in ss. 3(c) and (d) and 4(l).[38]
  7. [94]
    Given that s. 89(2)(a) is satisfied, it is unnecessary to consider this provision. Had I not been so satisfied, I may have returned the matter to the Respondent Council for consideration of whether, on the evidence, an authorised person was of the opinion that Boof’s behaviour towards Ms Candice Crawford, Ms Abbey Crawford and the dog Kamura on 17 July 2021 indicates that Boof may seriously attack or cause fear for the purposes of s. 89(2)(b).

Discretion

  1. [95]
    The Applicant argued that, contrary to the conclusions of the Appeals Tribunal in Brisbane City Council v Roy [2020] QCATA 147 (‘Roy’), the making of a dangerous dog declaration is discretionary, based on the use of the word “may” in the chapeau to s. 89(1), and that I should (subject only to the authority of Roy to the contrary) exercise my discretion to overturn the Council’s decision.
  2. [96]
    I conclude that there is no discretion, although my reasoning diverges slightly from that stated in Roy.
  3. [97]
    Section 89, headed “Power to make declaration”,[39] commences in subsection (1):

Any local government may, by complying with the requirements of this part …

  1. [98]
    The plain meaning of the provision is to empower or authorise a local government to make such decisions, not to afford a discretion: it is facilitative not facultative. This is consistent with the scheme of the Animal Management Act generally. For example, s. 209 empowers the making of forms for certain statutory purposes:
  1. (2)
    The chief executive officer of a local government may approve forms for use under this Act ….
  1. [99]
    In line with the later logic in Roy, s. 94 then obliges the decision maker to make the declaration if a jurisdictional fact is established (that the relevant ground under section 89 exists to the decision maker’s satisfaction) after the procedural step of considering representations by the dog owner.
  2. [100]
    It is also notable that the scheme of the Act does not allow conditions to be imposed on a dog owner’s keeping a dog that is not declared menacing or dangerous.[40] A discretion that is consistent with the purpose of the Act[41] logically might require a nuanced set of conditions such as boundary fencing; signage; restraining an animal at night and in public; keeping the animal on a lead or muzzled; training of the animal; education of the owner; and conditions affecting change in ownership etc of the animal. There is no power in the Council or this Tribunal to make such conditions.
  3. [101]
    Further, there is no statutory basis to conclude a declaration is unnecessary, such as infirmity of the dog or undertakings by the owner to manage the dog in particular ways.
  4. [102]
    More broadly, as explored in the next section, proper discretionary decision-making would be informed by relevant factors that are not enumerated in the Act and would have to be implied by the decision maker, a wholly unsatisfactory situation in an enforcement regime where certainty is important for both local law officers and dog owners.
  5. [103]
    I find for the Queensland Act there is no discretion: there is a process requiring the decision maker to seek representations and thence to rationally conclude whether or not certain facts exist.
  6. [104]
    In passing, there is no inherent public policy barrier to discretionary decision making about dangerous dogs. Indeed, such schemes are observed in other jurisdictions.[42] It seems the policy choice made by the Parliament in the Animal Management Act was not to afford a discretion.
  7. [105]
    Here, I have concluded, based on the evidence and representations, that the s. 89 grounds still exist (that Boof seriously attacked, or acted in a way that caused fear to, a person or another animal). Accordingly, under the Act, the declaration must be made.

What if there is discretion?

  1. [106]
    If this analysis is wrong, and given the Applicant foreshadowed a challenge to Roy, I consider Boof should be declared a dangerous dog as a matter of discretion. The discretion (if it existed) should be exercised to confirm the declaration for the following reasons.
  2. [107]
    First, in the absence of jurisprudence about discretion, the relevant factors appear to include (non-exhaustively):
    1. the circumstances of the index event;
    2. the relevant characteristics of the dog;
    3. the history of the dog;
    4. the circumstances of the dog’s keeping and its control, before, at the time of the index event and proposed by the owner and decision maker in the future;
    5. the public interest; and
    6. the reasonableness of making the declaration in the circumstances.
  3. [108]
    The circumstances of the index event are stated above and include injury to Kamura and both Ms Abbey Crawford and Ms Cindy Crawford.
  4. [109]
    Boof is a very large dog; anxious but not generally aggressive. He is also young and healthy and it seems physically active and strong.
  5. [110]
    His relevant history is that he is generally placid but on this one occasion behaved or responded violently.
  6. [111]
    He was kept in a semi-public area by a highly responsible and caring owner, who trusted his dog. If he were to be kept at the same premises, management of risk to people or other animals might require restraint outside the residence. Mr O'Donnell does not seem to have rights to fence the property he leases from the church and the grounds are accessible to parishioners and (at least in the recent past) the general public. There was no indication that the church was minded to restrict public access for Mr O'Donnell’s benefit. There was oral evidence that Boof is currently being cared for at other premises at Eatons Hill, but no evidence of intended future domicile, care, and control.[43]
  7. [112]
    The public interest lies, under the Animal Management Act, in ensuring that dogs do not attack or cause fear. Declarations form one of the means of achieving the Act’s purposes: s. 4(g) and (l).
  8. [113]
    The Act does not contemplate weighing that public interest against private interests or burdens though in a discretionary regime those competing interests may be relevant, as they would be here. Mr O'Donnell has legitimate private interests, chief among which is maintaining his relationship with Boof.
  9. [114]
    The burdens of keeping Boof as a regulated dangerous dog include those listed in Sch. 1 of the Act. Several of these seem not possible or likely for the church grounds such as the enclosure and public notice obligations in sections 4 and 5 of the Schedule. Thus, conditions of keeping of the dog unregulated at that place would likely impose other burdens such as severe isolation of the animal, burdens that in Dr Seksel’s opinion are against the animal’s interests.
  10. [115]
    Requiring Mr O'Donnell to domicile himself and the dog in a different place would be a great burden on Mr O'Donnell. It was not a possibility discussed before the Tribunal and is plainly not open to a decision maker under the Act.
  11. [116]
    In my view, the public interest in safety outweighs Mr O'Donnell’s private interests and justifies the declaration despite the onerous implications for him whether statutorily imposed (declaration of Boof as a dangerous dog) or ordered as conditions in the exercise of a discretionary decision not to make the declaration.
  12. [117]
    Boof was involved in a serious attack that resulted in grievous bodily harm to one person, and bodily harm to another and to another animal. The evidence strongly suggests that Boof was responding to the presence of the other dog with which it had a previous unpleasant interaction, and therefore might similarly respond in future to that dog or another dog. In such circumstances, maintenance of restraint by enclosures, collaring, leashing and muzzling would seem prudent to manage future risk.
  13. [118]
    Boof’s conduct also gave rise to a strong sense of fear in both Ms Cindy Crawford (for Kamura initially) and Ms Abbey Crawford (for her sister).
  14. [119]
    The fact he is a very large dog is relevant to, but not determinative of, how the animal is managed in future, for example the suitability of various restraints and the capacity of a person to manage the dog outside its ordinary abode (the “relevant place” for Sch.1).

Conclusion on discretion

  1. [120]
    I would not exercise a discretion in favour of the applicant without being able to impose stringent requirements on the ongoing keeping of Boof.[44]
  2. [121]
    Even if imposing conditions were available, this would place the Council in the position of ongoing supervision of a dog that was not a regulated dangerous or menacing dog. The Animal Management Act does not allow for such supervision. Further, there are unresolved issues with how conditions would apply in the event a dog was removed from the Brisbane City Council area or another jurisdiction.
  3. [122]
    Related to this is the lack of evidence about what conditions of keeping or training of the dog or of its keeper would be adequate in this dog’s circumstances.[45] Absent pertinent and authoritative evidence, the Tribunal would refer the details back to the Respondent for its consideration and expert input.
  4. [123]
    At the risk of circularity, the lack of appropriate powers to impose conditions to ensure the public interest is safety is achieved, at least in this case, would defeat the exercise of discretion if it existed.
  5. [124]
    I find that if discretion were available, I would not exercise it in the Applicant’s favour, and would therefore confirm the declaration of Boof as a dangerous dog.

Orders

  1. [125]
    In the matter of GAR531-21, the stay application is dismissed.
  2. [126]
    In the matter of GAR664-21, the declaration of Boof as a dangerous dog is confirmed.
  1. Attachment
  1. Affidavits, Statements and other documents
  1. Applicant
  1. 1.
    Affidavit of Thomas Noel O'Donnell 24.08.2021
  1. 2.
    Statement of Karyn Joy Olive 15.08.2021
  1. 3.
    Statement of Roger Shawn Bishop 09.08.2021
  1. 4.
    Further Statement of Roger Shawn Bishop 23.08.2021
  1. 5.
    Statement of John Joseph Power 11.08.2021
  1. 6.
    Statement of Anne Patricia McNulty 17.08.2021
  1. 7.
    Statement of Tracey Slater 18.08.2021
  1. 8.
    Statement of Gary David Cox 15.08.2021
  1. 9.
    Statement of Paul Denis McGrath 19.08.2021
  1. 10.
    Statement of Bernadette Mary Driessen 19.08.2021
  1. 11.
    Statement of the Very Reverend Anthony Mellor 20.08.2021
  1. 12.
    Statement of Sarah Louise Biuso 20.08.2021
  1. 13.
    Statement of Michael Hatzifotis 20.08.2021
  1. 14.
    Statement of Ashleigh Smith 23.08.2021
  1. 15.
    Statement of Shan Louise Gourley 23.08.2021
  1. 16.
    Statement of Jerome John Shogren 24.08.2021
  1. 17.
    Statement of Christopher Thomas Le Feuvre 24.08.2021
  1. Respondent
  1. 1.
    Affidavit of Abbey Crawford 11.03.2022
  1. 2.
    Affidavit of Candice Crawford 11.03.2022
  1. 3.
    Affidavit of Council Officer Amandeep Singh 15.03.2022
  1. 4.
    Affidavit of Council Officer Mark Scott 16.03.2022
  1. 5.
    Affidavit of Council Officer Christopher Savory 15.03.2022
  1. 6.
    Affidavit of Adam Whitelock 30.03.2023
  1. DART Complaint Details:
  1. 7.
    Report C3013505 17.11.2021
  1. 8.
    Report C3014069 18.11.2021
  1. 9.
    Report INV978770 18.11.2021

Footnotes

[1]  Animal Management Act, s. 89(2).

[2]  Each of the harm terms is defined in the dictionary (Sch.2) to have the same meaning given by the Criminal Code Act 1899 (Qld), s. 1.

[3]  Transcript Day 3-3 to 3-3.

[4]  Transcript Day 2, 2-30 [45].

[5]  Affidavit O'Donnell 24 August 2021.

[6]  Transcript 1-47.

[7]  Transcript of interview Ms C. Crawford and Mr Singh [82], [96].

[8]  Eg Transcript telephone call Ms A Crawford and Misty [102].

[9]  Expert report Dr Seksel p. 21.

[10]  It is notable that the parties did not rely upon the bodily harm inflicted on Ms Candice Crawford. The Tribunal however has clear evidence before it that she did suffer bodily harm from a dog bite in the incident.

[11]  [1938] HCA 34; (1938) 60 CLR 336 (‘Briginshaw’).

[12]  [2022] QCATA 40 [7]-[8] (destruction order).

[13]  O'Donnell Affidavit 24 August 2021 [44]. Note evidence that Mr O'Donnell thought originally Kamura was called Laura. There was no evidence of “Laura” being other than Kamura, although it is noted Ms Abbey Crawford’s dog is called “Leila”. The person in charge would likely refer to Ms Candice Crawford, Kamura’s owner.

[14]  O'Donnell Statement 24 August 2021 [35(g)]. See also [40], [42]. The complainant is likely a reference to Ms Abbey Crawford.

[15]  Affidavit C. Crawford 11 March 2022.

[16]  Affidavit A. Crawford 11 March 2022.

[17]  Transcript 3-23 to 3-24.

[18]  See summary in Respondent Submissions in Reply [10] and following.

[19]  Transcript 3-57 to 58.

[20]  Transcript 3-59.

[21]  Affidavit Olive [37]-[38], [45]; Affidavits O'Donnell 24 April 2021 [32] and 16 May 2021 [44].

[22]  Evidence Mr Wilson Transcript 1-77 to 1-78.

[23]  At p. 29.

[24]  At p. 28.

[25]  Compare Domestic Animals Act 1990 (Vic), s. 34.

[26]  That said, it seems clear at the relevant time that people and dogs walking on the grounds was tolerated despite significant concern from parishioners about dog waste. Signage prohibiting dogs erected later does not bear on these facts.

[27]  The Applicant’s proposition that hostility or aggression is a necessary element is contestable, as is the notion that defence against provocation might ordinarily take a dog’s conduct outside the bounds of a serious attack.

[28]  Applicant’s Outline [53], [66], [83].

[29]  Applicant submissions.

[30]Lee v Brisbane City Council [2011] QCAT 652.

[31]Lee v Brisbane City Council (No 2) [2012] QCATA 64.

[32]Lee v Brisbane City Council [2013] HCASL 37.

[33]  Report Dr Seksel p. 23.

[34]  See [71] above: “she could very well have been inadvertently bitten” [emphasis added].

[35]  Summarised in Applicant Submissions [60]-[63]; O'Donnell Submissions to Respondent 24 August 2021 [33]-[34]; [44] and following and witness statements referred to therein.

[36]  O'Donnell Submissions 24 August 2021 [48] and following.

[37]  Animal Management Act, s. 104(3).

[38]Acts Interpretation Act 1954 (Qld), s. 14A.

[39]  See Acts Interpretation Act 1954 (Qld), ss. 14(2), 35C(1).

[40]  See Animal Management Act, ss. 80-81, 96-98, 118(4) and (5), 210(2)(e), Sch 1.

[41]  Ibid, ss. 3-4.

[42]  E.g. Dog Act 1976 (WA), s. 33E; McGlew v City of Rockingham [2018] WASC 62, [25].

[43]  Transcript 1-50 at 40 and following and 1-62.

[44]  Consistently with Dr Seksel’s recommendations: [54] above.

[45] But see [54] above.

Close

Editorial Notes

  • Published Case Name:

    O'Donnell v Brisbane City Council

  • Shortened Case Name:

    O'Donnell v Brisbane City Council

  • MNC:

    [2024] QCAT 112

  • Court:

    QCAT

  • Judge(s):

    Member Bridgman

  • Date:

    13 Mar 2024

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Briginshaw v Briginshaw (1938) 60 C.L.R 336
1 citation
Jump To
Cite 1 - (1938) 60 C.L.R 336
Briginshaw v Briginshaw (1938) HCA 34
1 citation
Jump To
Cite 1 - (1938) HCA 34
Brisbane City Council v Roy [2020] QCATA 147
3 citations
Jump To
Cite 1 - [2020] QCATA 147
Cite 2 - [2020] QCATA 147
Cite 3 - [2020] QCATA 147
Imbrogno v Brisbane City Council [2017] QCATA 148
1 citation
Jump To
Cite 1 - [2017] QCATA 148
Lee v Brisbane City Council [2012] QCA 284
2 citations
Jump To
Cite 1 - [2012] QCA 284
Cite 2 - [2012] QCA 284
Lee v Brisbane City Council [2011] QCAT 652
1 citation
Jump To
Cite 1 - [2011] QCAT 652
Lee v Brisbane City Council [2013] HCASL 37
1 citation
Jump To
Cite 1 - [2013] HCASL 37
Lee v Brisbane City Council (No 2) [2012] QCATA 64
1 citation
Jump To
Cite 1 - [2012] QCATA 64
Mitchell v Gympie Regional Council [2022] QCATA 40
1 citation
Jump To
Cite 1 - [2022] QCATA 40
Van Cuylenburg v Tablelands Regional Council [2012] QCATA 60
1 citation
Jump To
Cite 1 - [2012] QCATA 60

Cases Citing

Case NameFull CitationFrequency
Dalgliesh v Brisbane City Council [2025] QCAT 342 citations
Murdock v Brisbane City Council [2025] QCAT 2972 citations
1

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