Lennox v Mackay Regional Council
[2024] QCAT 519
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- Unreported Judgment
- Lennox v Mackay Regional Council[2024] QCAT 519
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Lennox v Mackay Regional Council[2024] QCAT 519
Lennox v Mackay Regional Council[2024] QCAT 519
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Lennox v Mackay Regional Council [2024] QCAT 519 |
PARTIES: | Catherine Eva Lennox (applicant) v Mackay regional Council (respondent) |
APPLICATION NO/S: | GAR123-24 |
MATTER TYPE: | General administrative review matters |
DELIVERED ON: | 26 November 2024 |
HEARING DATE: | 26 September 2024 |
HEARD AT: | Mackay |
DECISION OF: | Member Burson |
ORDERS: | The decision of Mackay City Council is set aside and returned to Council with a direction to determine the matter in accordance with current legislation. |
CATCHWORDS: | ANIMALS – REGULATION OF COMPANION ANIMALS – whether grounds for dangerous dog legislation – change of legislation – whether applicant’s dog caused injury – whether dog seriously attacked Animal Management (Dogs and Cats) Act 2008 (Qld), s 89 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24 Criminal Code Act 1899 (Qld), Schedule 1 O'Gorman v Somerset Regional Council [2021] QCAT 408 |
APPEARANCES & REPRESENTATION: | |
Applicant: | Self-represented |
Respondent: | Mackay City Council |
REASONS FOR DECISION
- [1]Catherine Eva Lennox applied to the tribunal on 16 February 2024 to review the decision of Janine Mckay, Director of Community Services, Mackay Regional Council, (‘the Council’) dated 5 February 2024 to declare “Bill Lennox” her Border Collie as a dangerous dog.
- [2]Ms Lennox had sought an internal review of a decision by the Council.
- [3]The Council contends that “Bill” has seriously attacked, a smaller sized dog, Panda, and wounded it.
- [4]The definition in force for “seriously attack” at the time of the decision by Council meant an attack that caused bodily harm, grievous bodily harm or death under section 89(7) of the Animal Management (Dogs and Cats) Act 2008 (‘the AM Act’).
- [5]The definition of seriously attack, in relation to an animal, has since been clarified and was the subject of changes now found within section 89(6)(b) of the AM Act. The definition, as it came into force on 31 July 2024, currently is:
- seriously attack means –
- (a)…
- (b)in relation to an animal - attack the animal in a way that causes the death of the animal, or mains or wounds the animal.
- [6]Section 89(2) AM Act states:
- (2)A dangerous dog declaration may be made for a dog only if the dog -
- (a)has seriously attacked, or acted in a way that caused fear to, a person or another animal; or
- (b)may, in the opinion of an authorised person having regard to the way the dog has behaved towards a person or another animal, seriously attack, or act in a way that causes fear to, the person or animal.
- [7]The Council is required to consider the factors in in section 89(2) AM Act when making a declaration that a dog is a dangerous dog.
- [8]The tribunal conducts a review on its merits to conclude the ‘correct and preferable decision’ under section 20(1) Queensland Civil and Administrative Tribunal Act 2009 (Qld).
- [9]Unless stated otherwise, changes to legislation are not retrospective. I must consider the review in accordance with the law, as it was on the date of the external review, 5 February 2024.
Council’s evidence
- [10]The complainant Ms Shirley Joan Hayes provided a statutory declaration the day after the incident. Ms Hayes declared that two dogs came running out as she walked a small 14 year old dog, Panda, on a lead. Ms Hayes stated that she felt fear, and these dogs started “attacking” her small dog. It is noted that Ms Hayes stated in her statutory declaration that there were two dogs, one big and one slightly smaller. When giving evidence Ms Hayes opined that there was one big dog and a smaller “dachshund” dog. Ms Hayes gave further evidence that she remained up with Panda in her home as she was concerned that the dog would have a heart attack. Ms Hayes then took Panda to the vet the next day for treatment. This treatment was at the Northern Beaches Veterinary Hospital.
- [11]The Council also provided a report from Dr Latesha Morante, Veterinarian, Northern Beaches Veterinary Hospital which was undated but refers to the injuries sustained. The report indicates, “2 x puncture wounds – 1 x ventricle abdomen, 1 x lateral abdomen, minimal pocketing”. The report also continues, “Does not need Surgical closure, allow to drain on AB and anti-inflammatory – monitor inputs/outputs”.
- [12]Dr Morante provided evidence at the hearing, predominately around the wounds. It was suggested to Dr Morante that the wounds could have been caused by the small dog being dropped onto the gravel road from hip height. Dr Morante opined that they were puncture wounds and not gravel wounds or wounds from being dropped from a height.
Applicant’s evidence
- [13]Ms Lennox provided a statutory declaration to the Council and provided a further expansive statutory declaration. Ms Lennox stated that she has two dogs and both are border collies. Ms Lennox has provided photographic evidence.
- [14]Ms Lennox stated that her two dogs had come out to greet her and ran over to the woman who was walking the small dog. Ms Lennox described her dogs as curious. Ms Lennox stated that Ms Hayes pulled her dog up and the collar of the dog came off and the dog fell to the ground. Ms Lennox stated she called her dog Bill away and he came away. Ms Lennon denies that her dogs nipped at Ms Hayes or her dogs.
- [15]Ms Lennox also raised that she felt that there was bias towards her as she works for the Mackay City Council.
Analysis
- [16]Ms Lennox denies that her dog Bill caused an injury to the small dog. The evidence of the vet is that there was a puncture wound to the small dog.
- [17]The veterinarian confirmed that the injury to the dog was a puncture wound.
- [18]Ms Lennox and Ms Hayes provide differing versions of the incident between the dogs. There are no independent witnesses to the injury to Panda. As noted in the closing submissions of the Council, I am required to determine the true factual circumstances surrounding this incident.[1]
- [19]Ms Lennox presented an improbable cause of the injury to Panda during the hearing. I accept the evidence of Dr Morante that the wound was a puncture wound.
- [20]Ms Hayes presented as a poor historian. In addition her evidence was presented in such a manner that it appeared to be ‘gilding the lily’. I do not accept that Panda was ‘pinned down’ by the dog Bill in the incident, nor do I accept that Bill nipped at Ms Hayes’ heels. The wound was not considered by Ms Hayes to be so serious as to seek immediate treatment for the wound, notwithstanding Ms Hayes’ explanation for not seeking treatment for Panda sooner.
- [21]This leads the tribunal to a dilemma. Under the previous definition of “seriously attack” the consideration for the Council was ‘bodily harm’. The definition of bodily harm is found in schedule 1 of the Criminal Code Act 1899 (Qld) and is defined as “any bodily injury which interferes with health or comfort”. In accordance with the previous definition, Council may determine that Bill had “seriously attacked” Panda on the basis solely of the injury, which falls within the definition of bodily harm.
- [22]The current definition of seriously attack under section 89 the wording “attack the animal” (emphasis added) has been added as part of the definition. The Macquarie dictionary defines attack as “to set upon with force”. The evidence as to whether Bill has “attacked Panda” in the current definition, is limited.
- [23]There is no credible evidence that Bill has ‘set upon Panda’ or pinned Panda down. There is a puncture wound to the dog Panda, the evidence does not support that this injury occurred during an attack or whether it was a result of behaviour that is play, curiosity or excitement. It is a case where the evidence of the only two witnesses to the actions of Bill are diametrically opposed.
- [24]For the Tribunal to make a determination under the previous legislation may lead to an outcome which may, on the facts as presented, be at odds with the current legislative definition. I make no determination in relation to the current or previous definition of serious attack.
- [25]The decision that Bill is declared a dangerous dog is to be set aside. The Tribunal returns the matter to the Council for a determination in accordance with the legislation as currently in force.
Footnotes
[1]O'Gorman v Somerset Regional Council [2021] QCAT 408 at [17].