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  4. Symons v Scenic Rim Regional Council - [2024] QCAT 470

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Symons v Scenic Rim Regional Council[2024] QCAT 470

Symons v Scenic Rim Regional Council[2024] QCAT 470

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Symons v Scenic Rim Regional Council [2024] QCAT 470

PARTIES:

darryl symons

(applicant)

v

scenic rim regional council

(respondent)

APPLICATION NO/S:

GAR053-24, GAR054-24 and GAR055-24

MATTER TYPE:

General administrative review matters

DELIVERED ON:

30 October 2024

HEARING DATE:

14 October 2024

HEARD AT:

Brisbane

DECISION OF:

Member McVeigh

ORDERS:

  1. The decisions of the Scenic Rim Regional Council to issue a destruction order in respect of each of the dogs Wombat, Rawhide and Reno made on 11 October 2023 (and confirmed on internal review on 16 November 2023) are confirmed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – animals – whether destruction orders for seized dogs should be confirmed

Animal Management (Cats and Dogs) Act 2008 (Qld), s 59, s 89, s 98, s 127AA, Sch 1

Mitchell v Gympie Regional Council [2020] QCATA 19

Nguyen v Gold Coast City Council [2017] QCATA 121

Thomas v Ipswich City Council [2015] QCATA 97

Symons v Scenic Rim Regional Council [2023] QCATA 111

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

J T Dillon instructed by King and Co

REASONS FOR DECISION

What is this case about?

  1. [1]
    While these proceedings relate to three red cattle dogs, Wombat[1] and her progeny Rawhide[2] and Reno[3](collectively, the dogs), they are about how the owner of the dogs, Mr Darryl Symons, has managed them.
  2. [2]
    The management of dogs by the humans who own them is regulated by the Animal Management (Cats and Dogs) Act 2008 (Qld) (the Act). The purposes of the Act include promoting the responsible ownership of dogs and providing for the effective management of regulated dogs.[4] These purposes are primarily achieved by imposing obligations on owners to exercise effective control of dogs in particular circumstances and ensure dogs do not attack or cause fear.[5]
  3. [3]
    The Act gives local government the power to declare a dog to be menacing or dangerous, in each case described under the umbrella of regulated dog. The purpose of declaring a dog to be a regulated dog is twofold:
    1. to protect the community from damage or injury, or risk of damage or injury, from regulated dogs; and
    2. to ensure that regulated dogs are:
      1. not a risk to community health or safety; and
      2. controlled and kept in a way consistent with community expectations and the rights of individuals.[6]
  4. [4]
    The Scenic Rim Regional Council (Council) has received numerous complaints from members of the community who have been frightened by the behaviour of the dogs, which includes running out of Mr Symons’ property to bail up passers-by, barking aggressively, growling, baring their teeth, jumping up and biting at the ground around the feet of passers-by.
  5. [5]
    In April 2022 a member of the public complained that her daughter had been attacked by the dogs. After conducting an investigation, which included repeating stern warnings to Mr Symons about how he must manage the dogs, the Council declared Wombat, Rawhide and Reno to be regulated menacing dogs. That decision was made on 11 August 2022. Those declarations were the subject of review proceedings in this tribunal. Member Oliver decided that Wombat, Rawhide and Reno be declared regulated dangerous dogs.[7]That decision is the subject of an appeal.
  6. [6]
    Unfortunately, Mr Symons was not able to manage his dogs as required by the Act. After the dogs were declared to be regulated menacing dogs, there is evidence that on subsequent occasions one or more of the dogs left his property and frightened passers-by barking aggressively. On 31 August 2023 two women who were running along Brolga Road were bailed up by the dogs. The Council seized the dogs later that day. The dogs were taken to the Council’s small animal facility, where they remain.
  7. [7]
    On 11 October 2023 the Council issued a destruction order for each of the dogs. Those orders are the subject of these review proceedings. On 19 January 2024 the tribunal stayed the destruction orders pending the outcome of these review proceedings.

The task of this tribunal

  1. [8]
    I heard the applications made in respect of each dog on 14 October 2024. As I explained to Mr Symons at the commencement of the hearing, these are not civil proceedings in which the Council can be expected to negotiate a settlement. The Council’s obligations are described in the Act. It must take steps to avoid risk to community health or safety.
  2. [9]
    My task is to conduct a fresh hearing on the merits, taking into account not only the material before the original decisionmaker, but also all the evidence before me, in order to come to the correct and preferable decision. I must also make the decision on the law as it stands, not as it was in October 2023.[8]
  3. [10]
    I have no role in determining the appeals which have been lodged in respect of the decision of Member Oliver that Wombat, Rawhide and Reno be declared dangerous dogs. Those appeals, but not the declarations,[9] have been stayed pending the outcome of this application.[10]

The evidence

Eizenberg

  1. [11]
    Ms Eizenberg made a statement and attended for cross-examination via video link. She described the incident that occurred on 31 August 2023 on the road outside Mr Symons’ property. She was jogging with a friend when three dogs ran out across Brolga Road barking aggressively and biting at ground level close to the shoes of the joggers. Ms Eizenberg yelled at the dogs to go home and they ran back where they had come from. Ms Eizenberg and her friend started walking away but the dogs returned, barking and biting at their feet. She was scared, upset and overwhelmed, as was her friend. She rang for help and a friend came to collect them. She did not see Mr Symons. She reported the incident to the Council.
  2. [12]
    That was not the first time that Ms Eizenberg had encountered dogs outside Mr Symons’ property. She described a similar incident about five years ago when two red cattle dogs ran out at her from the property growling, barking and biting at the ground.

Harth

  1. [13]
    Mrs Harth made a statement and attended for cross-examination via video link. Mrs Harth is a lady in her seventies. She regularly walks along Brolga Road, fearing for her safety every time she walks past Mr Symons’ property because of the aggressive nature of the dogs. She has seen the dogs on the road numerous times. She has complained to Mr Symons and to the Council.
  2. [14]
    In about June 2022, she was going for her morning walk along Brolga Road when a dog came out of Mr Symons’ property and barked aggressively at her. She took a video of the incident on her phone which was played during her evidence. She felt scared.
  3. [15]
    In cross-examination she denied seeing Mr Symons or hearing him call the dog that was on the footpath.
  4. [16]
    At about 7:50am on 31 August 2023 as Mrs Harth was going for her morning walk, she was stopped by a motorist who warned her not to walk along Brolga Road as the dogs were out. She looked down the road and saw three red cattle dogs. As she did not feel safe, she turned for home. Another motorist stopped near her and also warned her about the dogs. She was told that the dogs had attacked two ladies earlier that morning. She asked for a lift home as she was worried about the dogs.
  5. [17]
    Mrs Harth’s affidavit contains evidence that is not relevant to the issue of Mr Symons’ management of the dogs. I have not taken it into account.
  6. [18]
    I do not accept Mr Symons’ submission that she was an unreliable witness as a result of having had a stroke some years ago. She did not display any signs of impaired cognition and freely admitted that she does not have peripheral vision in her left eye.

Patten

  1. [19]
    Mr Patten made a statement and a note of his attendance at Mr Symons’ property on 7 August 2024 to inspect the dog enclosure that had been constructed. He was not able to attend for cross-examination as he was at his father’s funeral. Mr Symons accepted that it would not be in the best interest of the dogs to delay the proceedings until Mr Patten was available to be cross-examined. Instead, he posed the questions he would have asked Mr Patten, many of which were in the nature of submissions. I draw no adverse inference from the non-attendance of Mr Patten.
  2. [20]
    Mr Patten is a ranger employed by the Council. He has 10 years’ experience in animal management. He investigated both the incident on 22 April 2022 and the incident on 31 August 2023.
  3. [21]
    Mr Symons objected to the use of the word ‘attack’ by Ranger Patten on the basis that the dogs have not physically attacked anyone.[11]
  4. [22]
    Ranger Patten knows from the Council records and from his personal participation in discussions that Mr Symons has been given numerous warnings about what he must do to control his dogs and what will happen if he fails to meet his obligations under the Act. The audio recording of one such warning given on 22 April 2022 was played during the hearing. Ranger Patten tells Mr Symons that he must ensure that the dogs are contained to the property at all times. Mr Symons responds that he is at fault. Ranger Patten repeats ‘the bottom line’ which is that Mr Symons must ensure that the dogs are contained, warning that if they are out the Council will come and seize them.
  5. [23]
    Ranger Patten explained that on 31 August 2023 following receipt of two complaints of the dogs escaping and causing fear he suspected that any delay in entering 106 Brolga Road would result in a risk to community health and safety. In conducting the seizure, he believed that the dogs had previously attacked or caused fear to people, had acted in a way that had caused fear to members of the public that morning and that having regard to the circumstances and history of the dogs escaping, the dogs posed a continuing risk to public safety.
  6. [24]
    Mr Symons would have liked Ranger Patten to explain the reason he did not call Mr Symons in the four and a half hours between receiving the complaint and entering his property on 31 August 2023, why he ignored the warning signs on the gate, and why he arranged for the police to be in attendance.
  7. [25]
    Mr Symons challenged the professionalism of Ranger Patten, raising a number of matters such as:
    1. confusing Mr Symons with another man who failed to manage his declared dangerous dog;
    2. ticking the wrong boxes in various forms;
    3. mixing imagination and reality;
    4. being dyslexic; and
    5. being confused about the number of the dogs on the property.
  8. [26]
    Ranger Patten has observed the demeanour of the dogs over time. He says that they are not aggressive all the time, but since they have been under the control of the Council, they display periods of aggression that means that they cannot be safely handled without precautions being taken.
  9. [27]
    Ranger Patten says that he gave Mr Symons the regulated dog declaration notices on 11 August 2022 and that each notice contained a Schedule A which set out the requirements for keeping a regulated (menacing) dog. He says that Mr Symons did not contact him in order to obtain the required collar, tag and sign, which would have been supplied free of charge.
  10. [28]
    On 7 August 2024 Ranger Patten inspected the dog enclosure that Mr Symons had constructed. It was not the first time he had visited the property to inspect the dog enclosure that Mr Symons had erected. He provided a file note relating to each inspection. On 25 May 2022 he observed that the enclosure may not be adequate to secure all three dogs due to Reno’s ability to jump the gates. He was not satisfied that the modified enclosure he inspected on 7 August 2024 complied with the Animal Management (Cats and Dogs) Regulation 2019 (Qld) (Regulations).
  11. [29]
    Mr Symons would have liked Ranger Patten to explain why it took nine weeks after the inspection to send him the advice that the enclosure did not meet the requirements of the Act and the Regulations. He also wanted to ask why a second inspection of the revised works had not been undertaken five weeks after the changes were made.
  12. [30]
    Mr Symons would also have liked to know how the Council could have held the dogs for 13 months in conditions that did not meet the requirements of the Regulations.
  13. [31]
    I am satisfied that I can rely on the evidence of Mr Patten. Most of it is based on the documentary record and on audio recordings made at the time of his interaction with Mr Symons and members of the public. I am satisfied that he is appropriately qualified to form an assessment of the behaviour of the dogs and the risk the dogs pose to public safety due to Mr Symons’ failure to heed warnings about what he must do to contain the dogs. I accept his evidence that the dogs are sometimes aggressive in the small animal facility. While not being critical of Mr Patten, it is hardly surprising that cattle dogs penned in small cages for over a year will display aggression at times.

Section 21 material

  1. [32]
    The Council provided an arch lever folder bundle of material. In it there was an exchange of correspondence between Mr Symons and the Council about the fate of the dogs.
  2. [33]
    On the morning of 13 September 2023 Mr Symons sent an email to the Council in which he advised that as of 2:30pm the previous day he had resolved to terminate the life of the dogs. He asked that they be released to him so that they might be allowed one last time on the property where they had been born and raised.
  3. [34]
    The Council responded the next day. While it did not accede to the request, it offered to have the dogs humanely euthanised by an independent veterinarian, to have the dogs cremated and their ashes made available for collection. It also offered a chance to inspect the dogs prior to them being euthanised, if Mr Symons wished to take up the offer.
  4. [35]
    Mr Symons strongly objected to his dogs ‘being incinerated like a piece of trash’. On 20 September 2023 he responded to the Council’s offer asking if he could be present when the vet administered the lethal injection. He explained his reasons for objecting to the cremation of the dogs and indicated his preference to bury them on his property.
  5. [36]
    At 10:06am on 26 September 2023 the Council offered to allow Mr Symons to take the body of each dog from the small animal facility to be buried on his property. It set out safety arrangements that might be made for Mr Symons to inspect the dogs, due to the aggressive behaviour of the dogs, prior to them being euthanised.
  6. [37]
    Mr Symons responded at 10:04pm that day. He sought clarification about the process and speculated about the techniques which might be employed to euthanise the dogs.
  7. [38]
    The next morning, Mr Symons requested a copy of the liability waiver that the Council wished him to sign.
  8. [39]
    On 3 October 2023 Mr Symons advised the Council that he had filed applications in the tribunal appealing, and seeking a stay of, the Council’s decision of 31 August 2023 because he wished to posthumously have the names of Wombat and Rawhide cleared and he wished to have Reno returned.
  9. [40]
    On 11 October 2023 the Council served destruction orders in respect of each dog.
  10. [41]
    On 12 October 2023 Mr Symons again sought the release of Reno on compassionate grounds on the basis that he would comply in all respects with the dangerous dog regulations.
  11. [42]
    Mr Symons raised his concerns about the way the dogs were treated and the time it was taking to resolve the matter with the Deputy Mayor and the CEO of the Council.
  12. [43]
    In January 2024 the solicitors for the Council wrote to Mr Symons asking that he direct all further correspondence to them. They advised that the Council declined to accept his offer to consent to the destruction of Wombat and Rawhide if Reno was returned to him.
  13. [44]
    On 13 May 2024 Mr Symons again wrote to the solicitors for the Council complaining about the conditions in which his dogs had been confined for 37 weeks. He repeated the offer he had made in September to finalise the matter. It was again rejected.

Symons

  1. [45]
    Mr Symons filed a 158-page document that is a mix of evidence and submissions. He was cross-examined.
  2. [46]
    There can be no doubt that he loves his dogs who were born and raised on his property. He describes them as companion, support and working dogs. He does not think they are dangerous, unlike other breeds, merely hyperactive around moving objects, livestock and people. He said that when he went to visit them the week before the hearing, they just stood in their pens looking at him.
  3. [47]
    Mr Symons is a retired firefighter. He has owned the property on Dylon Road for 17 years. When he moved there it was a rural property but he now finds himself at the interface between farming properties and urban lifestyle living. There is a housing estate on the other side of Dylon Road, which is now used by walkers and joggers. He suggests that joggers need to be educated about how to interact with working cattle dogs, e.g. by not making brisk arm and leg movements and by standing and looking his dogs in the eye. He thinks people do not understand, or even attempt to understand, the nature of a red cattle dog. He says that when challenged the dogs always retreat to his farm.
  4. [48]
    Mr Symons accepts that when the dogs are out on the road it is reasonable that people are afraid of them, but thinks that such fears could be overcome if individuals met the dogs and understood them better.
  5. [49]
    Mr Symons maintains the argument that he advanced in respect of the 11 April 2022 incident, that Reno, being the youngest dog, hangs back further than his mother Wombat or his brother Rawhide. He thinks that Reno should not be treated in the same way as Wombat and Rawhide.
  6. [50]
    Mr Symons is adamant that the dogs have never touched anyone. He said that had they bitten anyone he would have had them put down. He provided the arguments he intends to make in the appeal regarding the findings of Member Oliver. They are not relevant to the issues I have to decide.
  7. [51]
    Mr Symons swears that both sets of gates were closed and chained on 31 August 2023. He also swears that he was in a small galvanised iron stable which is enclosed on three sides and between two large gum trees at the time of the incident described by Ms Eizenberg. He denies that there was any risk to community health and safety at the time the dogs were seized because each dog was in its enclosure.
  8. [52]
    Mr Symon says that he understands that the bottom line is that the dogs should not have been out of his property, but claims that each time they have been out there has been a reasonable excuse as they were just defending his property.
  9. [53]
    He described the things he has done to try to stop the dogs from causing people to be afraid including:
    1. moving the hay bales away from the fence along the road;
    2. putting up six-foot dog wire around the perimeter of the house yard;
    3. putting them in their enclosures before he leaves the property;
    4. constructing an ‘entry chamber’ at his front gate;
    5. training the dogs to heed voice commands and a special whistle.
  10. [54]
    In final submissions he conceded that his approach had been wrong. In his words, he now understands that instead of managing the dogs by following steps A to Z (which I took to mean the approach he had taken previously which included only putting the dogs in their enclosures before he left the property) he should have started with Z, which meant keeping the dogs in the appropriate enclosure at all times unless they were taken out to work the cattle. He would not let them into the house, nor would he let them off in the house yard.
  11. [55]
    More recently, after the dogs were seized, he understood that he needed to change his attitude if he wanted the dogs back. He denied receiving notice that he could obtain the required collar, tag and sign for free and says that when he asked for them the Council refused to provide them. He has since obtained the required collar, tag and sign.
  12. [56]
    He understood that he would need to construct an enclosure that met the stringent requirements of the Act and Regulations. He attempted to do so and when he was informed that what he had built was inadequate he made further modifications. He also described his plans to change his behaviour by keeping the dogs in the enclosures he had constructed, by spending time with them in their enclosures rather than letting them run in the house yard and by ensuring that they were muzzled and on a long lunging lead every time they were taken out of the enclosure. He thinks it would be practical to use a dog to work his bull while the dog was on a lead.
  13. [57]
    Mr Symons disputes Ranger Patten’s description of the dogs as aggressive on the basis that the aggression was caused by the way they were treated during the seizure when each dog was double poled and lassoed in order to remove it from its enclosure. He describes the conditions at the Council’s facility as contrary to the requirements of the Animal Care and Protection Act 2001 (Qld).
  14. [58]
    Mr Symons feels persecuted by the Council. He levelled many criticisms at various officers of the Council and actions they have taken. None of them are relevant to the issues I must decide. He also raised other concerns about other incidents with his neighbours which are not relevant.
  15. [59]
    While I accept that Mr Symons might believe what he says is accurate when he says it, I also formed the view that his love and concern for his dogs might have been more important to him than telling the truth. For example, he says that when challenged the dogs always retreat to his farm. As demonstrated by the video and the evidence of Ms Eizenberg this is not true. In the video we saw Reno retreat when spoken to sternly, but he did not retreat inside the property, he came forward again and continued to bark aggressively. Likewise, if it was the case that Mr Symons was in a small galvanised iron stable which is enclosed on three sides and between two large gum trees at the time of the incident described by Ms Eizenberg, then he had no effective control of the dogs.
  16. [60]
    It seems likely that when dealing with Council officers or correspondence from the Council he focussed on what struck him as important, not on all the information conveyed to him. For example, Mr Symons denied receiving Schedule A with the notices declaring the dogs to be regulated dogs on 11 August 2022 or being advised that the required collar, tag and sign would have been supplied free of charge despite the fact that the schedule is part of the correspondence.
  17. [61]
    Mr Symons’ speculation about what might have happened on occasions when he was not present cannot be evidence of what actually happened. For example, his opinion that Reno would have hung back when Jane was attacked and therefore should not be treated in the same way as Wombat and Rawhide is only speculation. There is also evidence to the contrary as Reno was identified as the dog which was outside the property in June 2022. It seems Reno is as likely as Wombat and Rawhide to avoid control by Mr Symons.
  18. [62]
    It appears that until after the dogs were seized, and despite written and oral warnings, Mr Symons did not understand the obligations imposed on owners by the Act to exercise effective control of dogs. He says he is now ‘right up to speed’ with what is required. His conduct after the dogs were seized is an implicit acknowledgement of his failure to exercise effective control over the dogs. In particular I note:
    1. he modified the enclosure he had built in an attempt to meet the stringent requirements for the keeping of regulated dangerous dogs;
    2. he acknowledged that it was wrong not to keep the dogs in the appropriate enclosure at all times, instead of only putting them in their enclosures when he left the property; and
    3. he offered to have the lives of Wombat and Rawhide terminated.
  19. [63]
    Mr Symons visited the dogs on 5 September 2023. He describes their demeanour as calm.

What happened on Brolga Road on 22 April 2022?

  1. [64]
    The events of 22 April 2022 are the subject of findings in previous proceedings in this tribunal. The member found that Jane,[12] a child, was attacked by Wombat, Rawhide and Reno[13] as she was on her morning jog along Brolga Road.
  2. [65]
    Jane described the incident in the following way:

As I turned around two dogs jumped up at me. They were snarling at me. I could see their teeth and their noses were scrunched up.

When I turned around I could see a third dog close to me on the road behind the other two dogs. It wasn't jumping up at me, but it was barking aggressively at me. I recognise the dogs as the three orangey-brown looking dogs that I see jumping up on the big round hay bales along the fence line of the house on Brolga Rd….

The two dogs kept jumping up at me. I shuffled to the middle of the road and the two dogs moved with me. The two dogs continued to jump up at me and smile (sic). I don't remember exactly where the third dog was at this point in time. I felt scared and stressed by the three dogs. I don't know what to do to make them stop. I thought maybe if I kept moving to the other side of the road I could possibly jump onto a fence to get away from the dogs.

I got across the other side of the road. At about the same time I saw a white ute driving towards me, driving in the opposite direction from the way I was jogging. I saw the ute slow down and the three dogs started to run back to the house with the hay bales.

The ute stopped near me, where I had shuffled onto the grass on the other side of the road. …[14]

  1. [66]
    Mr Symons gave varying versions of events explaining how the dogs came to be on the road that morning. He told Ranger Patten in a conversation recorded on 22 April 2022 that he was struggling with short term memory and that late the afternoon before he had forgotten to shut the front gate to the property. He said that he had shut the gate at about 6am on the morning of the attack. On 22 May 2022 his submission to the Council was that:

On the early evening Thursday 21st April 2022 I secured my working dogs in their enclosures, opened the gate of my house yard and drove my ute to my house driveway. There I loaded several drums into my ute and drove back through the house yard to store the drums in a shed outside the rear of the house yard.

After unloading the drums I came back through the rear gate of the house yard and parked the ute. I closed the rear gate and may not have closed the front gate of the house yard (which is always my procedure to close all gates).

On Friday morning at 0610 hours I was awoken by my working dogs outside my bedroom windows. I immediately got up and saw the front gates of the house yard were open which I may have left open the previous evening. The working dogs were then secured in the house yard and front gates latched.[15]

  1. [67]
    He also suggested that the dogs escaped through the front gates which had been left open by a person who attempted to either steal the dogs or his property.
  2. [68]
    The findings of fact, albeit subject to appeal, already made are:
    1. that Jane was the subject of a dog attack;
    2. this resulted in physical injury, fear and distress from the trauma of the attack;
    3. that the three dogs that attacked her were Wombat, Rawhide and Reno.
  3. [69]
    It is common ground that Ranger Patten delivered a clear warning to Mr Symons that he must ensure that the dogs were contained to the property at all times and that if Mr Symons did not ensure that the dogs were contained the Council would come and seize them.

What happened on Brolga Road in June 2022?

  1. [70]
    The video taken by Mrs Harth shows a dog running along outside the fence line of Mr Symons’ property, barking and snarling at her while two other dogs were also barking and running up and down the fence line inside the property. The barking dog advances toward her a number of times and retreats when she tells it in a stern voice to get home. It does not retreat inside the property on the first occasion she tries to get it to go back inside the property. It does not run onto the bitumen. Mr Symons can neither be seen nor heard on the video.
  2. [71]
    Contrary to Mr Symons’ suggestion, the video does not show that Mrs Harth was ‘happy to meet the dogs’.
  3. [72]
    Mr Symons identified the dog as Reno.
  4. [73]
    The only finding of fact that can be made is that Reno was not contained in Mr Symons’ property and was not under his control.

What happened on Brolga Road on 31 August 2023?

  1. [74]
    Mr Symons says that he got up around 6am, had a ‘cuppa’ and went to the paddock to take the rugs off the horses. He then took the dogs to the paddock to train them with 6 heifers. He saw the dogs go out on the road and heard them bark happily.
  2. [75]
    Ms Eizenberg and her friend were running along Brolga Road when they were twice rounded up by three dogs. They were scared, but not physically hurt. She called the Council to complain.
  3. [76]
    Shortly afterwards Mrs Harth saw the dogs on the road. She did not feel safe and accepted a lift home. She called the Council to complain.
  4. [77]
    Mr Symons has given a number of different versions of events:
    1. the dogs were nowhere near the people;
    2. he was training the dogs in the paddock;
    3. the dogs went on to the roadway to greet two people they knew, barking happily; the people were not frightened and the dogs came back to the property when whistled;
    4. the dogs were not wandering at large and were under his control.
  5. [78]
    The common thread of the evidence is that all three dogs were on the road, barking at pedestrians. No one was bitten. The only finding that can be made is that Mr Symons did not have the dogs under effective control and they were not contained in his property.
  6. [79]
    As the Council had received two complaints about the dogs that morning, Ranger Patten formed the view that there was a risk to community health or safety that justified attendance at 106 Brolga Road without delay.[16] He formed that view based on:
    1. his past knowledge and involvement with the dogs spread over previous years;
    2. his investigation of the attack on 22 April 2022; and
    3. the history of interactions between him and Mr Symons, and other Council officers and Mr Symons, relating to the dogs escaping from the property over the years.
  7. [80]
    I am satisfied that he had a reasonable basis to enter the property.
  8. [81]
    Ranger Patten, two other rangers and members of the Queensland Police Service went to 106 Brolga Road and seized the dogs.[17]
  9. [82]
    Coincidentally, the decision of Member Oliver that Wombat, Rawhide and Reno be declared dangerous dogs pursuant to section 89 of the Act was made that day.

Required management of a regulated dog

  1. [83]
    The Act imposes obligations on owners of regulated dogs: both declared menacing dogs and declared dangerous dogs. The conditions on keeping, and requirements for the control of, regulated dogs are found in Schedule 1 to the Act.
  2. [84]
    All regulated dogs must be implanted with a prescribed permanent identification device (PPID) and must at all times wear a collar with an attached identifying tag of the type and containing the information prescribed under a regulation.[18]
  3. [85]
    The owner of a regulated dog must maintain an enclosure of the dimensions, quality and type prescribed under a regulation for the regulated dog. The dog must, unless there is a reasonable excuse, be usually kept in the enclosure.[19]
  4. [86]
    The owner of a regulated dog must place a sign with the dimensions, quality and type, and containing the information prescribed under a regulation, at or near each entrance to the place the regulated dog is kept to notify the public that a regulated dog is kept at the place.[20]
  5. [87]
    The owner of a regulated dangerous dog must comply with additional requirements to muzzle the dog when it is not in its enclosure.[21]
  6. [88]
    Matters which might be taken into account when determining whether a dog can be controlled include:
    1. compliance by the owner of a dog with conditions imposed as a result of the dog being declared a regulated dog;
    2. whether the owner of the dog demonstrated insight into the dog’s behaviour and acted appropriately to mitigate the risk to people;
    3. the rights of individuals, including the owner of the dog.[22]

Circumstances in which a destruction order might be made

The legislation

  1. [89]
    The Act sets out two circumstances in which a destruction order can be made in respect of a regulated dog that has been seized:
    1. first, if the dog has seriously attacked a person, in which case the destruction order is mandatory;[23]
    2. second, if the dog has not seriously attacked a person, in which case the destruction order is discretionary.[24]
  2. [90]
    The Act defines what is meant by ‘seriously attack’ a person for the purposes of section 127AA.[25]  It means to attack the person in a way that causes the death of, or grievous bodily harm or bodily harm to, the person.
  3. [91]
    The definition of ‘seriously attack’ is the same definition used in section 89 of the Act to distinguish between the behaviour of a declared dangerous dog and a declared menacing dog. A dog is to be declared a menacing dog if the dog has acted in a way that caused fear to a person. A dog is to be declared a dangerous dog if the dog has seriously attacked, or acted in a way that caused fear to a person.

The cases

  1. [92]
    Until section 127AA was introduced into the Act in 2024, there was no guidance in the Act about how the discretion whether or not to destroy a dog should be applied.
  2. [93]
    In Thomas v Ipswich City Council[26] the appeal tribunal noted that it is plain from the legislative scheme that the protection of the community is to be given a higher priority than the individual rights of dog owners.
  3. [94]
    In Mitchell v Gympie Regional Council[27] the appeal tribunal said:

[17] In exercising its discretion as to whether to destroy a dog, it seems to us that the correct approach is to start by a consideration of the purposes set out in s 59. These purposes include the protection of the community from damage or injury and ensuring that dogs are not a risk to community safety.

[18] The purposes set out in s 59 are to be achieved by, most relevantly:

  1. imposing conditions on keeping, and requirements for control of, regulated dogs;
  1. allowing authorised persons to seize and destroy dogs in particular circumstances.

[19] Inevitably it is a balancing exercise as to whether community safety can be achieved through the conditions and requirements imposed for a regulated dog, or whether destruction of the dog is indicated in a particular case. The destruction of a dog is neither the first resort nor the last resort, but one of the options available for achieving community safety. As discussed above, the exercise of the discretion, as with any discretion, is constrained by the requirement to act reasonably.

Should Wombat, Rawhide or Reno be destroyed?

  1. [95]
    Wombat, Rawhide and Reno are regulated dogs that have been seized by the Council. Section 127AA of the Act applies to all regulated dogs; dogs that have been declared menacing dogs and dogs that have been declared dangerous dogs. The dogs have been regulated dogs since 11 August 2022.
  2. [96]
    Mr Symons seems to be under a misapprehension that the mere filing of the applications to review the Council’s decisions made on 11 August 2022 to declare each dog to be a regulated menacing dog undid the declarations. This is not correct. Nor is it correct that the filing of the appeals against the decision that Wombat, Rawhide and Reno be declared dangerous dogs means that the dogs are no longer characterised as regulated dogs.
  3. [97]
    The Council submitted that I should proceed on the basis that a destruction order for each dog was mandatory based on the decision of Member Oliver that Jane had been seriously attacked on 22 April 2022. I reject that approach for two reasons. First, because the decision to upgrade the declaration from menacing dogs to dangerous dogs was not conveyed to Mr Symons until after the dogs were seized. Second, as Member Oliver’s findings that:
    1. Jane suffered bodily harm; and
    2. all three dogs played a role in the attack on Jane

are the subject of the appeal.

  1. [98]
    My view is that the better approach, given the possibility of a finding that Jane was not seriously attacked and in the absence of evidence that any other person has been attacked in a way that caused bodily harm, is to consider whether the discretion should be exercised to make the order in respect of each dog. This requires a consideration of whether the need for community safety can be achieved through the conditions and requirements imposed for managing a regulated dog.
  2. [99]
    From the day that Wombat, Rawhide and Reno were declared to be menacing dogs, i.e. 11 August 2022, Mr Symons was obliged to ensure that he complied with conditions imposed by regulations for declared menacing dogs.[28] This meant that each dog had to:
    1. be implanted with a PPID;
    2. wear a distinctive prescribed collar;
    3. be kept in an enclosure of a particular type, unless there was some reasonable excuse for it not to be in the enclosure.[29]
  3. [100]
    It goes without saying that each time the dogs were on Brolga Road they could not have been in an enclosure. Mr Symons has conceded that it was not his practice to keep the dogs in their enclosures when he was at home. He let the dogs into his house and he let them loose in the house yard which was fenced with dog wire. He did not spend the time or money to attempt to build enclosures of the type prescribed by the regulations until after the dogs were seized.
  4. [101]
    He argues that there was a reasonable excuse for the dogs not being in their enclosures on the occasions they were observed to be outside his property; he argues that they were guarding his property. I am not satisfied that that was a reasonable excuse. It is certainly no excuse for them being outside his property. Even if I gave Mr Symons the benefit of the doubt and accepted that he had a reasonable excuse to let the dogs out of their enclosures to train them in the paddock on 31 August 2023, there is no reasonable excuse for them bailing up Ms Eizenberg and her friend on the road outside his property. He plainly did not have effective control of the dogs: by his own admission they were on the road barking at passers-by.
  5. [102]
    The seizure of the dogs appears to be the point at which Mr Symons gained insight into the effect the dogs had on members of the community. Even then his attempt to mitigate the risk by modifying the enclosure were not sufficient to satisfy the Council that the regulations had been met. Had Mr Symons complied with conditions imposed by the Regulations, the risk to community safety would have been ameliorated. Unfortunately, his failure to comply led to the seizure of the dogs to ensure the safety of the public.
  6. [103]
    I have considered Mr Symons’ submission that Reno should be spared as he hangs back when the two older dogs work the cattle. However, the evidence is clear that all three dogs were on the road and had bailed up passers-by on 31 August 2023. It is the very situation predicted by member Oliver when he decided that all three dogs were a danger to the public.[30] I also note that Reno was the dog that was outside the property in June 2022. I am not satisfied that Reno is any less likely to be a danger to community safety than Wombat or Rawhide.
  7. [104]
    I have no option but to find that Mr Symons has not complied with the conditions and requirements imposed by the Act for managing the dogs. He has not controlled and kept the dogs in a way that is consistent with community expectations and the rights of individuals. As he conceded during cross-examination, members of the community are scared of the dogs. The community comes in a range of ages, sizes, ability and fortitude. It is not surprising that some members of the community do not feel safe when they encounter uncontrolled dogs outside private property, particularly if they are bailed up by the dogs and when those dogs are barking, growling and biting at their feet. Passers-by might not be bitten by any of the dogs, but they might be injured when taking evasive actions to avoid being bitten.
  8. [105]
    While community safety might have been achieved had Mr Symons adhered to the conditions and requirements for managing Wombat, Rawhide and Reno I cannot balance that hypothetical situation against the facts. In fact, due to Mr Symons’ failure to adhere to the conditions and requirements for managing his dogs, members of the community are fearful and the community in general has not been protected from the risk of injury.
  9. [106]
    I have no alternative but to confirm the decisions of the Council.
  10. [107]
    As it seems unlikely that proceedings regarding the dogs will end with this decision, and while the Council continues to have custody of the dogs, it should consider whether keeping the dogs in such a small space without exercise demonstrates appropriate care for the dogs.
  11. [108]
    I do not have the power to stay the operation of the decision. That power can only be exercised by the appeal tribunal or by a judicial member.[31] Given the irreversible consequences of the decision, my view is that the Council should not destroy the dogs until Mr Symons has given his consent or the time has passed for the filing an appeal and consideration of a stay application.

Footnotes

[1]  GAR053-24.

[2]  GAR055-24.

[3]  GAR054-24.

[4]  Section 3.

[5]  Section 4(m).

[6]  Section 59.

[7] Symons v Scenic Rim Regional Council [2023] QCATA 111.

[8] Builders Licensing Board v Sperway Constructions (Syd.) Pty Ltd (1976) 135 CLR 616.

[9]  Order made 3 November 2023 in APL310-23.

[10]  Order of 19 January 2024.

[11]  This argument is the subject of the appeal against the finding of Member Oliver.

[12]  A pseudonym for the young girl whose name has been de-identified.

[13] Symons v Scenic Rim Regional Council [2023] QCATA 111 at [18].

[14]  Ibid at [5].

[15]  Ibid at [14].

[16]  He needed to form this view in order to be able to enter under s 112(1)(a) of the Act.

[17]  The Act, s 125.

[18]  Ibid, Sch 1 ss 2, 2A.

[19]  Ibid, Sch 1 s 4.

[20]  Ibid, Sch 1 s 5.

[21]  Ibid, Sch 1 s 3.

[22] Nguyen v Gold Coast City Council [2017] QCATA 121.

[23]  The Act, s 127AA(2).

[24]  The Act, s 127AA(3).

[25]  Ibid, s 127AA(9).

[26]  [2015] QCATA 97 at [20].

[27]  [2020] QCATA 19.

[28]  S 98 for menacing dogs.

[29]  Sch 1 of the Act.

[30]  [2023] QCATA 111 at [28].

[31]  QCAT Act s 145.

Close

Editorial Notes

  • Published Case Name:

    Symons v Scenic Rim Regional Council

  • Shortened Case Name:

    Symons v Scenic Rim Regional Council

  • MNC:

    [2024] QCAT 470

  • Court:

    QCAT

  • Judge(s):

    Member McVeigh

  • Date:

    30 Oct 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
Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616
1 citation
Jump To
Cite 1 - (1976) 135 CLR 616
Mitchell v Gympie Regional Council [2020] QCATA 19
2 citations
Jump To
Cite 1 - [2020] QCATA 19
Cite 2 - [2020] QCATA 19
Nguyen v Gold Coast City Council Animal Management [2017] QCATA 121
2 citations
Jump To
Cite 1 - [2017] QCATA 121
Cite 2 - [2017] QCATA 121
Symons v Scenic Rim Regional Council [2023] QCATA 111
4 citations
Jump To
Cite 1 - [2023] QCATA 111
Cite 2 - [2023] QCATA 111
Cite 3 - [2023] QCATA 111
Cite 4 - [2023] QCATA 111
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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