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- Murdock v Brisbane City Council[2025] QCAT 297
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Murdock v Brisbane City Council[2025] QCAT 297
Murdock v Brisbane City Council[2025] QCAT 297
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Murdock v Brisbane City Council [2025] QCAT 297 |
PARTIES: | Michael shannon Murdock (applicant) v brisbane city council (respondent) |
APPLICATION NO/S: | GAR455-23 |
MATTER TYPE: | General administrative review matters |
DELIVERED ON: | 4 August 2025 |
HEARING DATE: | 11 April 2025 |
HEARD AT: | Brisbane |
DECISION OF: | Member Mott |
ORDERS: | The decision of the respondent is confirmed. |
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNAL – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – general administrative review – review of respondent’s decision confirming applicant’s dog to be a regulated (dangerous) dog under the Animal Management (Cats and Dogs) Act 2008 (Qld) – whether dog seriously attacked a person entering property to retrieve personal property – whether the Human Rights Act 2019 (Qld) applies to the Tribunal’s decision – whether s 58(2) of the Human Rights Act 2019 (Qld) applies to the Tribunal’s decision – whether the decision is compatible with human rights Animal Management (Cats and Dogs) Act 2008 (Qld), s 59, s 89, s 94, s 97, s 187, s 188 Human Rights Act 2019 (Qld), s 8, s 9, s 13, s 24, s 25, s 58 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 24, s 157 Austin BMI Pty Ltd v Deputy Premier [2023] QSC 95 Brisbane City Council v Roy [2020] QCATA 147 Elze v Brisbane City Council [2025] QCAT 195 Johnston & Ors v Commissioner of the Queensland Police Service [2024] QSC 2 Lee v Brisbane City Council [2012] QCA 284 O'Donnell v Brisbane City Council [2024] QCAT 112 SQH v Scott [2022] QSC 16 Watts v Tablelands Regional Council [2012] QCAT 71 |
APPEARANCES & REPRESENTATION: | |
Applicant: | J Murdock |
Respondent: | M Spencer – City Legal – Brisbane City Council |
REASONS FOR DECISION
- [1]Mr Murdock filed an application to review a decision of the Brisbane City Council (‘BCC’) in the Tribunal on 11 July 2023. The decision Mr Murdock sought to review was an internal review decision dated 16 June 2023. The internal review decision confirmed an original decision of the BCC on 19 April 2023 to declare Mr Murdock’s dog “Edge” to be a regulated (dangerous) dog under the Animal Management (Cats and Dogs) Act 2008 (Qld) (‘the AMA’).
- [2]The decision was made following an incident on 17 February 2023 at a property owned by a friend of Mr Murdock (the homeowner). Mr Murdock was staying at the property with Edge. Edge is a black male German Shepherd dog.
- [3]The homeowner had a verbal agreement with another friend (the complainant), allowing him to store personal property in her shed in return for mowing her lawns.
- [4]The complainant arrived at the property on 17 February 2023 to retrieve property from the shed. He entered the property through the gate.
- [5]He was bitten by Edge resulting in puncture wounds to his neck. He called the ambulance and was subsequently treated in a private hospital for his injuries.
- [6]Mr Murdock’s complaint about the decision of the BCC is that the complainant came on to the property Mr Murdock was staying at without permission and unannounced at night. He says the agreement between the homeowner and the complainant was that prior notice would be given when he came to retrieve something from the shed.
- [7]Mr Murdock also says the complainant punched the dog when it approached him.
- [8]On that basis, he is seeking to have the decision of the BCC set aside.
- [9]The matter proceeded to an oral hearing before the Tribunal on 11 April 2025. Mr Murdock was represented at the hearing by Ms Janet Murdock.
- [10]Ms Murdock relied on the application for review itself and the documentary evidence attached to the initial application.
- [11]In addition to the material filed under s 21(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), the BCC relied on affidavits from the homeowner and the complainant.[1] Ms Murdock only required that the complainant be available for cross-examination.
- [12]At the conclusion of the hearing, both parties were given the opportunity to provide further submissions on:
- the effect, if any of amendments to the AMA in 2024; and
- the application of the Human Rights Act 2019 (Qld) (‘the HR Act’) to the decision.
Jurisdiction to hear the application to review the decision
Jurisdiction
- [13]Chapter 8 of the AMA provides for reviews and appeals of decisions under the Act. Part 2 of Chapter 8 provides for external reviews to the Tribunal.
- [14]Section 188 of the AMA provides:
188 Who may apply for external review
A person who is given, or is entitled to be given, a review notice for a decision under part 1 may apply, as provided under the QCAT Act, for an external review of the decision.
- [15]Mr Murdock was given a review notice in accordance with s 187(2) of the AMA on 16 June 2023. As the internal review decision was not the decision Mr Murdock wanted, section 187(3) of the AMA requires the review notice to be accompanied by a notice complying with s 157(2) of the QCAT Act.
- [16]I am satisfied that the review notice given to Mr Murdock complied with the requirements of s 157(2) of the QCAT Act, other than s 157(2)(e). That provides the notice must advise the applicant of their right to have the operation of the decision stayed under s 22 of the QCAT Act. The review notice did not state this. However, a failure to comply with s 157(2) does not affect the validity of the reviewable decision.[2]
- [17]I am satisfied Mr Murdock is entitled to review the decision.
The way in which the Tribunal decides the application to review the decision
- [18]In exercising its review jurisdiction, the Tribunal:
- must decide the review in accordance with the QCAT Act and the AMA; and
- may perform the functions conferred on it by the QCAT Act or the AMA; and
- has all the functions of the decision maker for the decision being reviewed.[3]
- [19]The purpose of the review is to produce the correct and preferable decision by way of a fresh hearing on the merits.[4] The Tribunal is not required to identify an error in either the process or the reasoning that led to the decision being made, and there is no presumption that the reviewable decision is correct.[5]
- [20]In reviewing the decision, the Tribunal may:
- confirm or amend the decision; or
- set the decision aside and substitute its own decision; or
- set the decision aside and return it to the decision maker for reconsideration.[6]
The relevant provisions of the AMA
- [21]Section 89 of the AMA as in force at the date of the hearing provides:
89 Power to make declaration
- Any local government may, by complying with the requirements of this part—
- declare a particular dog to be a declared dangerous dog (a dangerous dog declaration); or
- declare a particular dog to be a declared menacing dog (a menacing dog declaration).
- A dangerous dog declaration may be made for a dog only if the dog—
- has seriously attacked, or acted in a way that caused fear to, a person or another animal; or
- may, in the opinion of an authorised person having regard to the way the dog has behaved towards a person or another animal, seriously attack, or act in a way that causes fear to, the person or animal.
- A menacing dog declaration may be made for a dog only if a ground mentioned in subsection (2) exists for the dog, except that the attack was not serious.
- The declaration may be made even if the dog is not in the local government’s area.
- A declaration under this section is a regulated dog declaration.
- In this section—
animal has the meaning given by section 191.
seriously attack means—
- in relation to a person—attack the person in a way that causes the death of, or grievous bodily harm or bodily harm to, the person; or
- in relation to an animal—attack the animal in a way that causes the death of the animal, or maims or wounds the animal.
- [22]No issue was raised about compliance with the requirements of part 4 and it appears they have been complied with.
- [23]The definition of ‘seriously attack’ in s 89(6) was amended in 2024. I invited the parties to make submissions about which version of s 89 I should apply in reviewing the decision. I accept the submissions of the BCC, which were not disputed by Ms Murdock that I should apply the law as currently in force.[7]
- [24]Section 94 of the AMA provides in effect, that if after considering any representations and evidence the local government is satisfied the relevant ground under s 89(2) still exists, it must make the regulated dog declaration. That means, if I am satisfied Edge seriously attacked the complainant, I must make the declaration.[8]
- [25]The term ‘seriously attack’ in this context, means attack a person in a way that causes the death of, or grievous bodily harm or bodily harm to the person. The term ‘bodily harm’ has the meaning given by s 1 of the Criminal Code.[9] That is, any bodily injury which interferes with health or comfort.
What the parties say
Facts which are not in dispute
- [26]The incident on 17 February 2023 occurred on the homeowner’s property. The homeowner had a verbal agreement with the complainant allowing him to store personal property in the shed on her property in return for mowing her lawns.
- [27]At the time of the incident, Mr Murdock was staying at the property with Edge. He knew the complainant stored property in the shed.
- [28]On 17 February 2023 at approximately 6:50pm, the complainant arrived at the property to collect some of his belongings from the shed. He knew the homeowner was away at the time. He also knew a male friend of the homeowner was staying at the property.
- [29]He entered the property through the gate and walked to the shed. Edge approached him and then bit him on the neck causing puncture wounds. The complainant was transported by ambulance to a private hospital. He was treated with sutures and subsequently discharged.
What the applicant says
- [30]Throughout the hearing and in her submissions, Ms Murdock focused on the fact that the complainant arrived at the property at night and entered the back yard without notifying anyone he was coming to the property.
- [31]There was an understanding he would text the homeowner before he came over.
- [32]In the material Ms Murdock relied on there were text messages between the complainant and the homeowner notifying her he was coming over to the property. These messages supported the assertion that the complainant did notify the homeowner when he was coming to retrieve property from the shed, at least on some occasions.
- [33]Ms Murdock also asserted the complainant punched or hit Edge provoking the incident. She did not present any direct evidence of this.
What the respondent says
- [34]The BCC submitted that the only question in issue is whether Edge seriously attacked the complainant.
Analysis
- [35]I am satisfied Edge caused injuries to the complainant that would meet the definition of bodily harm.[10] The key question is whether Edge attacked him.
- [36]The term ‘attack’ is not defined in the AMA. In the Macquarie Dictionary attack is relevantly defined to mean to set upon with force; begin hostilities against; attack the enemy. The meaning of ‘attack’ was considered by the Court of Appeal in Lee v Brisbane City Council (‘Lee’).[11] Holmes JA (as her Honour then was) said:
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 that 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.[12]
- [37]Noting the decision in Lee concerned an attack on another dog, I consider Lee stands for the following propositions:
- whether a dog’s behaviour amounts to an attack is a question of fact;
- hostile behaviour by the victim is a relevant consideration;
- whether the dog is acting in self-defence is a relevant consideration; but
- even if there is aggression or hostile behaviour from a victim, it is still possible to conclude that a dog attacked the victim.
- [38]The uncontradicted sworn evidence of the complainant, tested under cross-examination, was that Edge approached him showing no obvious signs of aggression other than having his head down. Edge sniffed his hand then jumped up and bit him on the throat.
- [39]Ms Murdock submitted it was likely the complainant punched the dog which prompted its aggressive behaviour. Even if the complainant did act aggressively towards the dog, it would not preclude a finding that Edge attacked him.
- [40]In any event, there is no evidence the complainant did so. There were no witnesses to the incident other than the complainant and his uncontradicted evidence was he slapped and punched the dog a couple of times after it had bitten him to get it off him and defended himself with a chair.
- [41]I am satisfied that Edge set upon and bit the complainant. For the purposes of s 89 of the AMA, I am satisfied this amounted to a serious attack.
- [42]Ms Murdock’s focus, both in the evidence she relied on, her cross-examination of the complainant and in her submissions, was the circumstances in which he attended the property. In effect she asserted his entry was unauthorised.
- [43]The BCC submitted the circumstances in which the complainant attended the property were irrelevant for the purposes of s 89 of the AMA.
- [44]In Watts v Tablelands Regional Council (‘Watts’),[13] the Tribunal considered whether a person entering a property uninvited was sufficient to conclude that a dog was provoked into an attack. The Tribunal said:
Even if a stranger had merely entered the property uninvited that would not have justified an attack causing serious injury. Any provocation of the dog would have to entail something more than mere entry on to the property.[14]
- [45]In Watts the Tribunal concluded the victim’s entry was not unauthorised. They were expected to arrive and come on to the property. Similarly, I am satisfied the complainant’s entry was not unauthorised.
- [46]It is not in dispute he had an agreement with the homeowner to store his personal property in her shed in return for mowing services. That involved regularly coming and going from the property as much as three times a week.
- [47]The homeowner’s sworn evidence is that Mr Murdock was house sitting for her at the time of the incident and was aware of the arrangement with the complainant. As best she can recall, there was an arrangement the complainant would let her know when he was coming onto the property, because she was sometimes working from home. However, he did not always do so.
- [48]I accept the evidence relied on by Ms Murdock that the complainant did text the homeowner to let her know he was coming over on a number of occasions. I also accept the homeowner’s evidence that she did not generally know whether he attended the property when she was not there, but there was at least one occasion she was aware of that he did without notifying her. When that happened, her evidence was that she said to him she was unaware he was coming over.
- [49]The complainant’s sworn evidence, tested under cross-examination was that he had access to the property at any time and was not required to notify the homeowner when he was coming over. I accept this evidence. I do not find it is totally inconsistent with the homeowner’s evidence.
- [50]The homeowner and the complainant communicated about coming to the property on a number of occasions. However, I am not satisfied the complainant had no authority to enter the property unless he texted the homeowner first.
- [51]His sworn evidence was that on the night of the incident, he was aware the homeowner was away from home. In those circumstances it is readily believable he thought there may be no need to text her. I also accept his evidence he was aware there was a visitor staying at the property but that he did not know he had a dog.
- [52]I am satisfied the complainant was authorised to enter the property and the circumstances in which he did do not affect my conclusion that Edge attacked him.
The application of the HR Act
- [53]At the hearing, I sought assistance from the legal representative of the BCC about the application of the HR Act to the Tribunal’s decision. The BCC filed submissions about the application of the HR Act which were not disputed by Ms Murdock.
- [54]The BCC submitted the Tribunal is a public entity with obligations under the HR Act to make a decision in a way that is compatible with human rights and to give proper consideration to a human right relevant to the decision. However, those obligations do not apply if the Tribunal could not reasonably make a different decision because of a statutory provision.
- [55]The BCC submitted that if the Tribunal is satisfied a serious attack occurred, it must make the declaration. There is no discretion because the Tribunal could not make a different decision.
- [56]
- [57]That means the Tribunal, in making its decision must act compatibly with human rights and give proper consideration to human rights, unless the Tribunal cannot reasonably make a different decision because of a statutory provision.[17]
- [58]
- [59]Giving proper consideration to human rights includes identifying the human rights that may be affected by the decision and considering whether the decision would be compatible with human rights.[20]
- [60]I accept the submission that if I am satisfied Edge seriously attacked the complainant within the meaning of s 89(2) of the AMA, I must make the regulated (dangerous) dog declaration.
- [61]I have considered whether s 58(1) of the HR Act applies to a decision that I am satisfied a ground under s 89 exists. In my view, this depends on whether there is a real discretion involved which involves the balancing of relevant factors including benefits and harms.[21]
- [62]I have also considered s 48 of the HR Act which requires me to interpret statutory provisions in a way that is compatible with human rights, consistently with their purpose.
- [63]I have concluded that a decision about my satisfaction that a ground under s 89 exists, is essentially a process of deciding questions of fact. The answers to those questions dictate the outcome, and that is consistent with the purpose of the provision. It is not the kind of discretion that s 58(1) of the HR Act applies to.
- [64]However, I note the recent decision of the Tribunal in Elze v Brisbane City Council[22] which applied a human rights compatibility analysis to this kind of decision.
- [65]If my conclusion about the application of s 58(2) is wrong, I have considered whether a decision that Edge seriously attacked the complainant, requiring the making of a declaration would be compatible with human rights. I have considered the following human rights.
Property rights
- [66]I am satisfied dog ownership gives rise to a form of property right.[23] Section 24 of the HR Act recognizes the right to own property and not to be arbitrarily deprived of a person’s property. The consequences of deciding a ground in s 89(2) exists is that various obligations will be imposed on the regulated dog owner. They include things which will impose a cost on the dog owner, such as the implantation of a prescribed permanent identification device and providing an enclosure.
- [67]Those requirements also place restrictions on how the dog may be taken out of the place where it is housed and how it is transported. I am satisfied that the nature of those restrictions interferes with or restricts the dog owner’s property rights.
- [68]However, I consider that any limitations on the dog owner’s property rights are both lawful and reasonable and demonstrably justifiable within the meaning of s 13 of the HR Act.
- [69]The purposes of chapter 4 of the AMA are:
- to protect the community from damage or injury, or risk of damage or injury, from regulated dogs; and
- ensure regulated dogs are not a risk to community health or safety and controlled and kept in a way that is consistent with community expectations and the rights of individuals.[24]
- [70]Those purposes are achieved by the making of regulated dog declarations and imposing conditions on the keeping of and control of regulated dogs.[25] I am satisfied that the protection of the community from the risk of injury from regulated dogs is a legitimate purpose for a limitation on human rights which is consistent with a free and democratic society based on human dignity, equality and freedom.
- [71]The making of a declaration where a dog is found to have seriously attacked a person and imposing conditions on dog owners as a consequence helps to achieve that purpose.
- [72]There is no reasonable alternative that would achieve that purpose to the same extent.[26] On balance, I consider the purpose of protecting the community from injury or the risk of injury from dangerous dogs outweighs any limitations on the dog owner’s property rights because of the decision.
- [73]I have also considered whether the consequences of the decision amount to a deprivation of property.[27] In that sense I have considered whether the decision would result in a substantial restriction on the use, enjoyment or ability to transfer property.
- [74]However, limits on property rights in this sense must also be arbitrary. The concept of arbitrariness means capricious, resulting from unpredictable conduct, unjust or unreasonable in the sense of being disproportionate to the legitimate aim.[28] That proportionality analysis is the same as the analysis undertaken under s 13 of the HR Act.
- [75]For the reasons I have already identified, I am satisfied that any deprivation of property is not arbitrary.
Privacy and reputation
- [76]Arguably, acts or decisions that do not amount to a deprivation of property could limit the right to privacy as that is reflected in affecting someone’s home life. That is also predicated on interference that is unlawful or arbitrary.
- [77]Clearly any limits on this right because of the decision are not unlawful and for the reasons already identified are not arbitrary. Even if I am wrong in this conclusion, they are demonstrably justifiable, again for the reasons set out above.
Conclusion
- [78]I am satisfied that Edge seriously attacked the complainant within the meaning of s 89(2) of the AMA.
- [79]That means the declaration that Edge is a regulated (dangerous) dog must be made. I confirm the decision under review.
Footnotes
[1] Practice Direction No. 3 of 2013 [5(d)].
[2] QCAT Act s 157(4).
[3] Ibid s 19.
[4] Ibid s 20.
[5] Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58, [9]
[6] QCAT Act s 24.
[7] See the decisions referred to in support of those submissions: Dalgliesh v Brisbane City Council [2025] QCAT 34; Brain v Townsville City Council [2025] QCAT 24. I also refer to Elze v Brisbane City Council [2025] QCAT 195, [19].
[8] Brisbane City Council v Roy [2020] QCATA 147, [56].
[9] AMA sch 2.
[10] See the conclusions of the Appeal Tribunal in Brisbane City Council v Roy [2020] QCATA 147, [62].
[11] [2012] QCA 284, [10]–[12].
[12] Ibid [11].
[13] [2012] QCAT 71.
[14] Ibid [25]; see also O'Donnell v Brisbane City Council [2024] QCAT 112, [58].
[15] See s 9(1)(f) of the HR Act; see also Elze v Brisbane City Council [2025] QCAT 195, [56].
[16] The HR Act s 9(4)(b).
[17] Ibid s 58(2).
[18] Ibid s 8; Austin BMI Pty Ltd v Deputy Premier [2023] QSC 95, [305].
[19] Austin BMI Pty Ltd v Deputy Premier [2023] QSC 95, [306].
[20] The HR Act s 58(5).
[21]SQH v Scott [2022] QSC 16, [140], [142]–[144].
[22] [2025] QCAT 195.
[23] See Elze v Brisbane City Council [2025] QCAT 195, [62]; see also Thurston v Ballarat City Council [2012] VCAT 274.
[24] AMA s 59.
[25] Ibid s 59(2).
[26] In Brisbane City Council v Roy [2020] QCATA 147, [57] the Appeal Tribunal found that an alternative declaration could not be made.
[27] The HR Act s 24(2).
[28] Johnston & Ors v Commissioner of the Queensland Police Service [2024] QSC 2, [367]