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Dalgliesh v Brisbane City Council[2025] QCAT 34

Dalgliesh v Brisbane City Council[2025] QCAT 34

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Dalgliesh v Brisbane City Council [2025] QCAT 34

PARTIES:

lisa dalgliesh

(applicant)

v

brisbane city council

(respondent)

APPLICATION NO:

GAR562-23

MATTER TYPE:

General administrative review matters

DELIVERED ON:

8 January 2025

HEARING DATE:

3 September 2024

HEARD AT:

Brisbane

DECISION OF:

Member Scott-Mackenzie

ORDERS:

  1. 1. The decision of the respondent made 21 August 2023 confirming the decision of the respondent made 7 June 2023 declaring the dog microchip number 956000006812996 and tag number 659710 owned by the applicant and named Budd a declared dangerous dog is confirmed.
  2. 2. The directions given by the Tribunal on 10 October 2023 are vacated.

CATCHWORDS:

ADMINISTRATIVE TRIBUNAL – animals – dangerous dog – where a dog killed a cat – where the dog killed a second cat – where the dog declared a dangerous dog – where asserted the second cat attacked or provoked the dog – whether a finding the second cat attacked or provoked the dog precludes a finding the dog seriously attacked the cat – whether decision to make a dangerous dog declaration is discretionary – whether the Tribunal has power to vary the conditions for a dangerous dog

Animal Management (Dogs and Cats) Act 2008 (Qld), s 3, s 4, s 89, s 90, s 92, s 94

Companion Animals Act 1998 (NSW), s 16

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 19, s 20

Brache v Douglas Shire Council [2014] QCAT 60

Brisbane City Council v Roy [2020] QCATA 147

Imbrogno & Anor v Brisbane City Council [2017] QCATA 148

Lake Macquarie City Council v Morris (2005) 63 NSWLR 263; [2005] NSWSC 387

Lee v Brisbane City Council [2012] QCA 284

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

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

Roy v Brisbane City Council [2019] QCAT 311

Thomas v Ipswich City Council [2015] QCATA 97

APPEARANCES & REPRESENTATION:

Applicant:

Mr G H Gore

Respondent:

Ms A Fairbairn, City Legal

REASONS FOR DECISION

Application

  1. [1]
    On 18 August 2023 the applicant (‘Ms Dalgliesh’) made application to the Tribunal to review a decision of the respondent (‘Council’) made 2 August 2023 (‘internal review decision’) confirming a decision of the Council made 7 June 2023 (‘original decision’) declaring Ms Dalgliesh’s dog named Budd a dangerous dog under the Animal Management (Cats and Dogs) Act 2008 (Qld) (‘AM Act’) (‘application’).

Brief background

  1. [2]
    Budd is a former racing greyhound. On 15 September 2021 Ms Dalgliesh took Budd into her care from the Broken Hill pound, initially as a foster dog. Subsequently, on 4 October 2021, Ms Dalgliesh adopted Budd. At the time, he was about two and a half years old.
  2. [3]
    On 15 August 2022 the Council received a report Budd had attacked a cat named Coco on Old Cleveland Road, Stones Corner (‘first incident’). Coco was taken to a local animal emergency centre for treatment and pronounced dead at the centre.
  3. [4]
    Subsequently, on 13 April 2023, the Council received a second report that on 11 April 2023 Budd attacked another cat named Mickey on Bardsley Avenue, Greenslopes (‘second incident’). Mickey suffered serious injuries and was euthanised at a veterinary clinic.

Internal review decision

  1. [5]
    The internal review decision recites the Council receiving reports of the first and second incidents. On 26 April 2023 Council officers interviewed the owner of Mickey who confirmed the report. The details of the injuries suffered by Mickey were obtained from the veterinary clinic.
  2. [6]
    On 16 May 2023 Council officers interviewed Ms Dalgliesh. She confirmed Budd picked Mickey up by the face. She further confirmed Budd is a former racing dog and stated he does not like cats.
  3. [7]
    On 17 May 2023 the Council gave to Ms Dalgliesh a proposed declaration notice under section 90 of the AM Act.
  4. [8]
    On 7 June 2023 the Council made the original decision.
  5. [9]
    In reaching the internal review decision, the decision-maker took into consideration audio recordings of the interviews of Ms Dalgliesh on 16 and 18 May 2023, statements by the owners of Coco and Mickey, medical records, and admissions made by Ms Dalgliesh. He acknowledges the further training provided to Budd and commitment to placing him on a lead and wearing a muzzle while outside Ms Dalgliesh’s home. Notwithstanding, the decision-maker concludes, ‘… it does not displace the grounds previously relied upon by the Authorised Person to issue a declared declaration notice.’
  6. [10]
    The decision-maker then continues:
  1. 22.According to section 94(2) of the Act, as I am satisfied that the grounds as detailed above have not been displaced, I must confirm the regulated dangerous dog declaration.
  2. 23.I am satisfied that the injuries sustained by the victim cat are serious and meet the definition of ‘bodily harm’ under the Criminal Code Act 1899. As such the requisite level according to the Act for making a declaration in this matter must be a Dangerous Dog Declaration.
  3. 24.I am satisfied that Council’s material evidence has been gathered in accordance with the requirements set out in the Evidence Act 1977, and that the evidence establishes these findings to the requisite standard, that standard being the balance of probabilities.
  4. 25.I do not consider that any other submissions by the applicant displaces the requirement on Council to make a regulated dog declaration. Accordingly, I confirm the original decision and the Dangerous Dog Keeping Conditions attached to this Notice and Marked “Appendix 1” are in force and must be complied with.

Ms Dalgliesh’s material

Affidavits

  1. [11]
    Ms Dalgliesh filed two affidavits:
    1. affidavit of Ms Dalgliesh sworn 8 March 2024; and
    2. affidavit of Jesikah Pawa sworn 12 April 2024.

Ms Dalgliesh

  1. [12]
    Ms Dalgliesh deposes to her acquisition and adoption, and training, of Budd and asserts, ‘... Budd is no longer a savage greyhound racer, he is a domesticated and cultivated, family pet.’
  2. [13]
    She walks Budd every day and avoids cats. The first incident involving a cat named Coco and the second incident involving a cat named Mickey, she swears, ‘… are a tragic outcome of provocation or ambush, not attack …’ On both occasions, Ms Dalgliesh continues, ‘... Budd was the first “provoked” or attacked.’
  3. [14]
    In relation to the first incident, Ms Dalgliesh swears, Coco had been ‘hiding’, or was otherwise out of sight, in thick bushes, and chose to run out. The cat, she continues, ‘… ran straight into Budd, who was startled by what he might reasonably have thought, was an attack, or possibly an attack, on him.’
  4. [15]
    In relation to the second incident, Ms Dalgliesh swears, she was crouched patting a dog named Oscar at 23 Bardsley Avenue, Greenslopes. Budd was standing behind her on a leash and pulled her over. On recovering, Ms Dalgliesh pulled Budd away from Mickey. The badly injured cat ran under a car. Ms Dalgliesh took Mickey’s owner and Mickey to a veterinary clinic. Given the severity of Mickey’s injuries, the cat was euthanised.
  5. [16]
    Ms Dalgliesh speculates Mickey ran up to Budd or jumped into his face from a brick fence.
  6. [17]
    Ms Dalgliesh comments on statements made by the persons interviewed by Council officers. She also talks about herself, the lack of any discretion under the AM Act and her relationship with Budd.
  7. [18]
    The annexures to the affidavit evidence certain of the matters deposed to by Ms Dalgliesh in her affidavit.

Ms Pawa

  1. [19]
    Ms Pawa swears she observed Coco exhibit territorial behaviour, particularly when it came to dogs. On multiple occasions, she continues, she observed Coco attempting to attack dogs passing by her property while being walked on a leash.
  2. [20]
    Ms Pawa later swears she was informed by Ms Dalgliesh Coco had unexpectedly lunged at her dog from out of the bush, prompting her dog to defend itself by biting Coco. She asserts that Budd and Ms Dalgliesh were not at fault.
  3. [21]
    Ms Pawa was not required to attend the hearing for cross-examination.

Submissions

  1. [22]
    On 10 June 2024 Ms Dalgliesh filed lengthy submissions to which are annexed 26 documents, including photographs and a plan of Ms Dalgliesh’s home. She asserts the difference between the parties is the Council has not properly considered, or if it did, has not given reasons for rejecting:
  1. (a)
    whether the was a defence of provocation or self-defence;
  2. (b)
    whether the ‘settlement’ offered by her was acceptable;
  3. (c)
    whether the enclosure described by her is acceptable; and
  4. (b)
    to what extent can the emotional inter-dependency of Budd and her be accommodated.
  1. [23]
    Ms Dalgliesh, in relation to the first incident, submits the evidence of Ms Pawa supports a conclusion Coco confronted Budd. She refers to section 196 of the AM Act, defences to offences against sections 194 and 195, and the decision of the Tribunal in Brache v Douglas Shire Council (‘Brache’)[1] and the Appeal Tribunal in Thomas v Ipswich City Council.[2] In not declaring Budd a dangerous dog following the first incident, it is submitted, the Council exercised the discretion available to it. The second incident, it is further submitted, ‘… [is] deserving of the same discretion.’ Further incidents, it is submitted, would be avoided if Budd were required to be muzzled whenever outside Ms Dalgliesh’s home.
  2. [24]
    The Council recommended to Ms Dalgliesh that Budd be muzzled whenever outside her home following the first incident. It appears he was muzzled for some time. However, he was not muzzled on the day of the second incident.
  3. [25]
    In relation to the second incident, Ms Dalgliesh repeats she was pulled over by Budd while patting Oscar. Mickey was already in Budd’s mouth when she regained her feet. Ms Dalgliesh speculates about how Mickey came to be within Budd’s reach. She asserts she and Budd were ‘attacked’ by Mickey. On the balance of probabilities, she asserts, Mickey jumped from a fence post on to Budd, or immediately beside or in front of him.
  4. [26]
    Ms Dalgliesh addresses the consequences of Budd being declared a dangerous dog, for both her and Budd. She submits that if the internal review decision is confirmed, the conditions for keeping Budd should be varied.

Council’s material

Material filed under section 21(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

  1. [27]
    The Council, on 18 October 2023, filed material under section 21(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’). The material includes the complaints made to the Council, photographs, audio recordings of records of interviewer, the proposed declaration notice under section 90 of the AM Act, written representations to show why the proposed declaration should not be made (made by lawyers on behalf of Ms Dalgliesh dated 1 June 2023) (‘representations’), the original decision, the application for internal review of the original decision and the internal review decision.
  2. [28]
    On 11 October 2022 Ms Dalgliesh was interviewed by Council officers appointed under the AM Act. She stated she walked down Rialto Street into Old Cleveland Road. Budd was on a leash. She did not see Coco as she was approaching the location of the first incident.
  3. [29]
    Budd was sniffing the bushes. Ms Dalgliesh heard a ‘hiss’, and Coco appeared out of the bushes.
  4. [30]
    On 16 May 2023 Council officers interview Ms Dalgliesh in relation to the second incident. She confirmed Budd picked Mickey up by the face. She further confirmed Budd is a former racing greyhound and stated he does not like cats.
  5. [31]
    In the representations, it is asserted:

Mickey went within half a metre of Budd and this is when Budd attacked. Budd did not chase after Mickey ...

Regrettably, Budd reacted and attacked …

  1. [32]
    Later, the representations continue:

Budd is a Greyhound and it is well established that Greyhounds were originally bred as hunting dogs and now, bred and trained to chase small animals, such as a cat.

Budd is true to his breed. Admittedly, he reacted when suddenly confronted by Mickey. The incident was over very quickly. The interaction was seconds, and the actions of Budd were not aggravated or prolonged, it was one action which caused the injury to animal.

  1. [33]
    The basis for the assertion is unclear. The second incident was not witnessed by Ms Dalgliesh or anyone else. Ms Dalgliesh only realised what had happened on regaining her feet and observing Mickey in Budd’s jaws.
  2. [34]
    Ms Dalgliesh applied for internal review of the original decision. In support of the application, she filed an affidavit, sworn by her on 21 June 2023, to which was annexed a summary of her work with animals and a letter from Ms Sue Waugh of Fellowship of the Paws dated 26 May 2023. Ms Dalgliesh swears that on 11 April 2023 she was walking down Bardsley Avenue with Budd and crouched down to pat Oscar through a fence. Suddenly, and without warning, she was pulled over by Budd.
  3. [35]
    Ms Dalgliesh then continues:

I swiftly regained my feet to see Budd and a cat, whom I now know to be named Mickey, engaged on the footpath directly outside the fence.

I separated them immediately.

Affidavits

  1. [36]
    The Council filed three affidavits on 28 March 2024:
    1. affidavit of Olivia Jane Roberts sworn 22 March 2024;
    2. affidavit of Kathleen Campbell sworn 27 March 2024; and
    3. affidavit of Marlies Thorneycroft sworn 27 March 2024.

Ms Roberts

  1. [37]
    Ms Roberts swears she was the owner of Coco. On 15 August 2022 she received a telephone call from a neighbour who informed her he heard an animal attack Coco and saw him limp away.
  2. [38]
    On returning to her home, tradesmen working nearby showed Coco to her. He was wrapped in a cloth and appeared to be dead. A tradesman informed her Coco had been attacked by a greyhound being walked by its owner and was badly injured.
  3. [39]
    Ms Roberts took Coco to a veterinary clinic. The nurse on duty informed her he was dead.
  4. [40]
    A neighbour’s partner, Ms Roberts swears, informed her Ms Dalgliesh was unable to restrain Budd after Coco walked out of her front gate, where he often sat, and once Budd had him in his jaws, he would not let go.

Ms Campbell

  1. [41]
    Ms Campbell swears she spoke to Ms Thorneycroft and Ms Dalgliesh after they returned from the veterinary clinic. Ms Thorneycroft informed her Mickey was dead, they just got back from the veterinary clinic and ‘… the dog got him.’
  2. [42]
    Ms Dalgliesh, Ms Campbell swears, informed her Budd attacked the cat.

Ms Thorneycroft

  1. [43]
    Ms Thorneycroft swears she was at home on 11 April 2023. She heard her dog named Oscar bark loudly and aggressively and went outside. On doing so, she observed Ms Dalgliesh holding Budd on a leash. She asked, ‘Who owns the cat?’, indicating a cat that had just run away and might have been bitten.
  2. [44]
    Ms Thorneycroft found the cat, Mickey, under a motor car. He was severely injured.
  3. [45]
    Ms Dalgliesh, Ms Thorneycroft swears, said to her all she saw was Mickey’s head in Budd’s mouth.
  4. [46]
    She and Ms Dalgliesh took Mickey to a veterinary clinic. They were informed Mickey’s lungs were punctured and he had internal bleeding and a hernia. The cat was euthanised.
  5. [47]
    The deponents to the affidavits were not required to attend the hearing for cross-examination.

Submissions

  1. [48]
    The Council, in submissions filed in the Tribunal on 26 April 2024, summarises the circumstances surrounding the incidents. It observes the incidents are not in dispute, nor is it disputed the injuries inflicted caused grievous bodily harm or death.
  2. [49]
    The submissions go on to observed that neither Ms Dalgliesh nor Ms Pawa witnessed the second incident. Ms Dalgliesh’s evidence about Budd’s training and general disposition towards people and other dogs, it is submitted, is irrelevant.
  3. [50]
    The issue to the determined by the Tribunal, the submissions conclude, is whether Budd attacked Coco and Mickey, alternatively whether Budd acted in self-defence.

Legislative framework

  1. [51]
    The purposes of the AM Act are spelt out in section 3. They include:
  1. (a)
    provide for the effective management of regulated dogs; and
  2. (b)
    to promote the responsible ownership of cats and dogs.
  1. [52]
    The manner in which the purposes are to be primarily achieved include by:
  1. (a)
    imposing obligations on regulated dog owners;
  2. (b)
    providing for the chief executive to establish a breeder register and regulated dog register;
  3. (c)
    appointing Council officers to investigate, monitor and enforce compliance with the Act;
  4. (d)
    requiring local governments to keep a general register about dogs;
  5. (e)
    imposing obligations on particular persons to exercise effective control of dogs in particular circumstances and ensure dogs do not attack or cause fear; and
  6. (f)
    prohibiting anyone from allowing or encouraging a dog to attack or cause fear to people or other animals.[3]
  1. [53]
    A regulated dog is:
  1. (a)
    a declared dangerous dog; or
  2. (b)
    a declared menacing dog.
  1. [54]
    A local government may declare a dog to be a dangerous dog or a menacing dog.[4] A dangerous dog declaration may be made if the dog:
  1. (a)
    has seriously attacked, or acted in a way that caused fear to, a person or another animal; or
  2. (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.[5]
  1. [55]
    Seriously attack, in relation to an animal, means attack the animal in a way that causes the death of the animal, or maims or wounds the animal.[6]
  1. [56]
    If a local government proposes to make a regulated dog declaration, it must give the owner of the dog a proposed declaration notice. The notice must contain the information set out in section 90(1) of the AM Act. The information includes an invitation to make written representations to show why the proposed declaration should not be made.[7]
  1. [57]
    The local government may withdraw the proposed declaration notice by giving notice of the withdrawal to the owner of the dog the subject of the notice.[8]
  2. [58]
    The local government is required to consider any written representations and evidence accompanying them made by the owner of the dog within the period stated in the proposed declaration notice.[9] If, after considering any written representations and evidence accompanying them, the local government is satisfied the relevant ground under section 89 still exists, it must make the regulated dog declaration for the dog.[10]
  3. [59]
    The Tribunal’s review jurisdiction is the jurisdiction conferred on the Tribunal by section 188 of the AM Act.[11] In exercising its review jurisdiction, the Tribunal:
  1. (a)
    must decide the review in accordance with the Act and the enabling Act under which the reviewable decision being reviewed was made; and
  2. (b)
    may perform the functions conferred on the Tribunal by the Act or the enabling Act under which the reviewable decision being reviewed was made; and
  3. (c)
    has all the functions of the decision-maker for the reviewable decision being reviewed.[12]
  1. [60]
    The purpose of the review of a reviewable decision is to produce the correct and preferable decision.[13] The Tribunal must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits.[14]

Hearing

  1. [61]
    The application was heard by the Tribunal on 3 September 2024.

Oral evidence and submissions

  1. [62]
    Mr Gore, who appeared on behalf of Ms Dalgliesh, and Ms Fairbairn, who appeared on behalf of the Council, addressed the Tribunal on the circumstances surrounding the first and second incidents and the applicable legislation.
  2. [63]
    Ms Dalgliesh gave evidence. She described crouching down to pat Oscar through a gate and being pulled over by Budd. She did not see where Mickey came from.
  3. [64]
    In cross examination, Ms Dalgliesh was unable to recall whether Coco confronted Budd. Coco had harassed other dogs, she added.
  4. [65]
    In closing, Mr Gore submitted, there was one witness to the incidents, Ms Dalgliesh. Budd, he submitted, was ‘ambushed’, referring to the evidence of Ms Pawa. Coco had ‘taken dogs on’.
  5. [66]
    Mr Gore drew attention to the similarity between both incidents and referred to legislation in New South Wales and Victoria.
  6. [67]
    In closing, Ms Fairbairn identified as an issue to be decided by the Tribunal whether Budd was provoked. The only witness to both incidents was Ms Dalgliesh and she did not witness behaviour consistent with self-defence. What is said about the circumstances surrounding the second incident is speculation, Ms Fairbairn added.
  7. [68]
    She drew attention to the observation in Lee v Brisbane City Council[15] (‘Lee’), at [11], to the effect the decision in Lake Macquarie City Council v Morris[16] (‘Lake Macquarie City Council’) is not really helpful.

Written closing submissions

Ms Dalgliesh

  1. [69]
    Ms Dalgliesh, in accordance with directions given by the Tribunal, filed closing submissions. She refers to a telephone conversation with a Council officer on 16 May 2023 asserting she effectively alleged Budd was ‘ambushed’. She is critical of the Council for not investigating the allegation.
  2. [70]
    Ms Dalgliesh submits a local government retains a discretion to make a regulated dog declaration for a dog under section 94(2) of the AM Act after considering any representations and evidence accompanying them within the period stated in a proposed declaration notice notwithstanding a finding of serious attack, citing the decision of the Tribunal in Roy v Brisbane City Council.[17]
  3. [71]
    Ms Dalgliesh correctly submits ‘attack’ is not defined in the AM Act. She refers to the decision of Supreme Court of New South Wales in Lake Macquarie City Council, the Queensland Court of Appeal in Lee, and the Appeal Tribunal in Lee v Brisbane City Council (No. 2)[18] (‘Lee (No 2)’) for judicial consideration of the meaning of the word.
  4. [72]
    Ms Dalgliesh again speculates about what happened in the lead up to the second incident. She submits:
  1. (a)
    if Mickey’s intervention is described as a shock intrusion into Budd’s personal space, Budd’s reaction can be described as instinctive, meaning Budd was being a dog, not a ‘dangerous’ dog;
  2. (b)
    if Mickey’s surprise intrusion is seen as intimidating, a style of provocation or intimidation, Budd’s reaction was intimidated or provoked; and
  3. (c)
    if Mickey’s pre-emptive arrival into Budd’s space is described as an attack, Budd reacted in self-defence.
  1. [73]
    She again submits section 89 of the AM Act is not engaged ‘… for a dog where there has been understandable reaction, and no true ‘attack’ by dog, not by one indicating an inherent and dangerous temperament.’
  2. [74]
    Ms Dalgliesh concludes her closing submissions by asking that the dangerous dog declaration be set aside, and the Tribunal accept a consent order that Budd be muzzled when in public. She seeks alternative orders that two enclosures proposed by her are conforming enclosures for the purpose of the conditions in schedule 1 of the AM Act for a declared dangerous dog.

Council

  1. [75]
    The Council, in its closing submissions, refers to the decision of the Appeal Tribunal in Imbrogno & Anor v Brisbane City Council[19] (‘Imbrogno’) for a summary of the legislative framework. If a local government is satisfied a serious attack occurred, it must make the declaration, citing Roy. In other words, if the Tribunal is satisfied a serious attack occurred, and Budd attacked, the decision of the Council to declare Budd a dangerous dog, it is submitted, must be confirmed.
  2. [76]
    Ms Dalgliesh does not dispute the first or second incidents or that, as a result of the incidents, Coco and Mickey died. Further, it is submitted, Ms Dalgliesh does not dispute that Budd inflicted the injuries causing the deaths of the two cats.
  3. [77]
    The issue to be determined by the Tribunal, it is submitted, is whether Budd attacked one or both cats, or alternatively he acted in response to an attack by one or both cats.
  4. [78]
    The attacks, the submissions continue, if they occurred, were serious attacks within the meaning of the definition in section 89(6) of the AM Act.
  5. [79]
    The Council submits, in relation to the first incident, there is no evidence for the Tribunal to conclude Coco attacked Budd. Likewise, whilst Ms Dalgliesh speculates about what happened in the lead up to the second incident, there is no evidence Mickey attacked Budd.
  6. [80]
    The Council comments on the submissions by Ms Dalgliesh on how the conditions in schedule 1 of the AM Act for a declared dangerous dog would be applied to Budd if the Tribunal confirms the internal review decision. The Tribunal is without a discretion in relation to the application of the conditions, it is submitted by the Council.
  7. [81]
    The Council refers to the decision of the Queensland Court of Appeal in Lee, at [11], and distinguishes the decision of the Appeal Tribunal in Brache. In conclusion, the Council submits, if the Tribunal is satisfied Budd acted in response to a show of aggression from both cats, it is not precluded from finding Budd attacked, in circumstances where there was no physical contact by the cats preceding the attacks.
  8. [82]
    Further, it is submitted that if that the Tribunal finds the cats did physically attack Budd, and Budd acted in response to the attacks, in other words in self-defence, it would not be satisfied there was an attack by Budd and would set aside the decision to declare Budd a dangerous dog.
  9. [83]
    Upon consideration of the evidence and the relevant circumstances, the Council submits, the Tribunal would be satisfied Budd seriously attacked and killed the two cats on separate occasions, and applying the principles set out in Imbrogno and Roy, would confirm the internal review decision.

Consideration

Introduction

  1. [84]
    The procedure for making a dangerous dog declaration is set out in part 4 of chapter 4 of the AM Act and summarised by the Appeal Tribunal in Imbrogno, at [47]. The local government must give to the owner of the dog a proposed declaration notice, the dog owner must be given an opportunity to make written representations and provide evidence, the local government must consider any representations and evidence by the dog owner and the local government must decide whether to make a regulated dog declaration.
  2. [85]
    It is not suggested the Council here departed from the procedure prescribed for declaring Budd a declared dangerous dog.
  3. [86]
    The issue to be decided by the Tribunal is whether Budd seriously attacked Coco and Mickey. The central plank to Ms Dalgliesh’s challenge to the decision to declare Budd a declared dangerous dog is Budd did not ‘attack’ Coco or Mickey; Budd was provoked by Coco and Mickey, alternatively he acted in self-defence. Additionally, she calls into consideration the following:
    1. the Council did not investigate whether Budd was ‘ambushed’;
    2. the making of a dangerous dog declaration is discretionary notwithstanding a finding of serious attack; and
    3. if the internal review decision is confirmed, the requirements of the conditions in schedule 1 to the AM Act for a declared dangerous dog should be varied.

Investigation

  1. [87]
    Ms Dalgliesh is critical of the Council’s investigation of the second incident. She asserts that during a telephone conversation with a Council officer on 16 May 2023 she effectively alleged Budd was ‘ambushed’. The Council, Ms Dalgliesh complains, should have investigated the allegation.
  2. [88]
    There are several answers to the criticism. First, Ms Dalgliesh did not allege Budd was ambushed during the telephone conversation. What she said is she does not know where Mickey came from.
  3. [89]
    Secondly, having reviewed the material filed by the parties and listened to the audio recordings of interviews, I am satisfied that all relevant evidence that could be obtained was obtained by the Council. Ms Dalgliesh first became aware of the second incident when pulled over by Budd and observing Mickey in Budd’s mouth on regaining her feet. No one else saw the incident. In other words, there was nothing further to investigate.
  4. [90]
    Thirdly, a finding Budd was ambushed, as a matter of law, does not preclude a finding Budd seriously attacked Coco and Mickey.[20]

Provocation and self-defence

  1. [91]
    Ms Dalgliesh contends Budd did not ‘attack’ Coco or Mickey, Budd was provoked, alternatively he acted in self-defence.
  2. [92]
    The relevance of a dog acting in response to being attacked, provoked or teased and causing bodily harm, grievous bodily harm, or death was considered in Imbrogno. There, two dogs owned by the applicants attacked a third dog. The third dog suffered grievous bodily harm. Subsequently, the respondent declared the two dogs to be declared dangerous dogs.
  3. [93]
    The appellants applied to the Tribunal for a review of the decision. The decision was confirmed. They then applied to the Appeal Tribunal for leave to appeal against the decision at first instance.
  4. [94]
    The Appeal Tribunal, after setting out the legislative framework, concluded there was sufficient evidence before the Tribunal at first instance to conclude, as it did, the incident constituted a serious attack causing grievous bodily harm and the two dogs had seriously attacked the third dog.
  5. [95]
    The Appeal Tribunal referred to the decision in Lee (No 2), at [30]. There, the Appeal Tribunal observed:

(Section 89) is concerned with circumstances where a relevant declaration may, not must, be made. A dangerous dog declaration may be made where the dog under consideration has “seriously attacked or acted in a way that caused fear to a person or another animal”. There is no provision in the Act similar to section 196 which is relevant to section 89. That is not to say that in the exercise of the discretion whether a declaration should be made with regard to a dog which has attacked another dog in a way causing bodily harm, grievous bodily harm or even death, the fact that the dog was acting in response to being attacked, provoked or teased is irrelevant. All the circumstances need to be taken into account in the exercise of the discretion.[21]

(Emphasis added) (Citation omitted)

  1. [96]
    It later added that:

… The learned member observed that there was no discretion afforded to the Tribunal to reach a different decision (other than to make the regulated dog declaration) if the attack results in grievous bodily harm. As was held in Lee v Brisbane City Council (No 2) all of the relevant circumstances need to be taken into account in the exercise of the discretion. The discretion involves the decision maker, after considering all of the relevant circumstances including submissions and evidence by the dog owner, determining whether a dog has seriously attacked a person or another animal. Having found that Thor and Zeus had seriously attacked Miffy within the meaning of s 89 of the AM Act, s 94(2) required the learned member to confirm the decision to declare Thor and Zeus to be dangerous dogs. The learned member did not err in so doing. The conclusion reached by the learned member has not been shown by the applicants to be illogical or irrational or attended by legal unreasonableness. There is an evident, transparent and intelligible justification for the decision, which falls within the area of decisional freedom of the decision-maker. The discretion exercised by the learned member did not miscarry ...[22]

(Citations omitted)

  1. [97]
    It follows the Council was not precluded from declaring Budd a declared dangerous dog if satisfied Budd attacked Coco and Mickey in a way causing death and grievous bodily harm even if Budd was provoked or was acting in self-defence. The issue to be addressed by the Tribunal is whether it is satisfied, to the requisite standard and having regard to the whole of the evidence, Budd seriously attacked Mickey. If satisfied, it must confirm the internal review decision.

Discretion

  1. [98]
    Whilst not entirely clear, Ms Dalgliesh appears to submit the making of a dangerous dog declaration is discretionary notwithstanding a local government being satisfied the relevant ground under section 89 still exists after considering any written representations and evidence accompanying them, relying on the decision in Roy. The decision, however, and the discretion pressed by Ms Dalgliesh, was reversed on appeal.
  2. [99]
    In Roy, the respondent’s dog bit a child. Subsequently, the appellant declared the dog to be a declared dangerous dog. The Tribunal at first instance set aside the declaration, and in its place declared the dog to be a declared menacing dog.
  3. [100]
    On appeal,[23] the appellant submitted the Tribunal at first instance erred in interpreting sections 89(2) and (3) of the AM Act. It submitted section 89(2) effectively requires a dangerous dog declaration to be made if there is an attack on a person or animal, and the attack causes bodily harm, grievous bodily harm or death. Section 89(3) provides for a menacing dog declaration to be made if there is an attack, but the attack does not cause injury.
  4. [101]
    The respondent submitted the decision to declare a dog a declared dangerous dog involves the exercise of a discretion.
  5. [102]
    The Appeal Tribunal, after referring to Imbrogno for the statutory framework and the scope of an application to review a decision under section 94 of the AM Act, and referring to the decision at first instance, and the purposes of the Act, outlined the process in chapter 4 of the Act for making a dangerous dog declaration and menacing dog declaration. It then continued:

The local government has the power to withdraw the proposed declaration notice. On a proper construction of the section, a proposed declaration notice may be withdrawn by a local government at any time after issue until such time as, after the owner of the dog has made written representations, the local government is satisfied that the relevant ground under s 89 still exists. This is the logical construction of the section, noting that the process prescribed by Part 4 can come to an end either by withdrawal of the proposed declaration notice or the making of the declaration.[24]

(Citations omitted)

  1. [103]
    Later, the Appeal Tribunal added:
  1. [52]
    ... A local government may, subject to compliance with the requirements of Part 4, declare a dog to be dangerous, menacing or restricted. The discretion not to make any declaration at all is confirmed by s 90(1) which states ‘If a local government proposes to make a regulated dog declaration …’ (emphasis added) and then outlines the process available to that end starting with a notice of proposed declaration given to the owner.
  2. [53]
    ...
  3. [54]
    If the local government is satisfied about the facts out of which the power to make a declaration about a dog arises, the local government must, by s 94(2) of the AM Act, make the declaration.
  4. [55]
    ...
  5. [56]
    Use of the word ‘must’ in s 94 indicates that the power granted is required to be exercised. There is no discretionary element involved save that the decision maker must be satisfied that the relevant ground under s 89 is made out. If it is not, the regulated dog declaration proposed cannot be made.

(Citation omitted)

  1. [104]
    Having found the considerations in section 89(2) had been satisfied, the Tribunal at first instance, the Appeal Tribunal held, was obliged to make the dangerous dog declaration, adding ‘He had no discretion to do otherwise.’[25]
  2. [105]
    The appeal was allowed, the decision at first instance set aside, and the decision declaring the dog to be a declared dangerous dog was confirmed.
  3. [106]
    Subsequently, in O'Donnell v Brisbane City Council[26] (‘O'Donnell’), the applicant submitted the making of a dangerous dog declaration is discretionary notwithstanding the decision of the Appeal Tribunal in Roy to the contrary. The Tribunal rejected the submission, it diverging slightly from the reasoning in Roy:
  1. [97]
    Section 89, headed “Power to make declaration”, 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 [AM 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. A discretion that is consistent with the purpose of the Act 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.

(Citations omitted)

  1. [107]
    The Tribunal is without the discretion contended for by Ms Dalgliesh. If, after considering any written representations and evidence accompanying them within the period stated in the proposed declaration notice, the local government is satisfied the relevant ground in section 89 still exists, it must make the regulated dog declaration for the dog. The Tribunal is likewise required to make the declaration if satisfied that the relevant ground in section 89 still exists having considered all of the relevant circumstances, including the evidence and submissions by the parties.

Variation of the conditions for a declared dangerous dog in schedule 1 to the AM Act

  1. [108]
    Ms Dalgliesh submits that if the decision declaring Budd a declared dangerous dog is confirmed, the Tribunal should vary the conditions for declared dangerous dogs in the manner described. The discretion to do so was considered by the Tribunal in O'Donnell. There, it was observed:

... 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. A discretion that is consistent with the purpose of the Act 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 ...[27]

  1. [109]
    The Council and Tribunal are without power to vary the conditions, whether in the manner described by Ms Dalgliesh or otherwise.

First incident

  1. [110]
    Ms Dalgliesh informed the Council officers Budd was sniffing along bushes when she heard a ‘hiss’. Coco ‘swiped’ at Budd. She did not suggest Coco otherwise attacked Budd.
  2. [111]
    Her recollection of the incident deposed to in her affidavit is somewhat different. She swears Coco had been ‘hiding’, or was otherwise out of sight, in thick bushes, and chose to run out. The cat, she continues, ‘… ran straight into Budd, who was startled by what he might reasonably have thought, was an attack, or possibly an attack, on him.’
  3. [112]
    Ms Pawa did not witness the incident. She swears on multiple occasions she observed Coco attempting to attack dogs passing by her property while being walked on a leash.
  4. [113]
    There is no direct evidence Coco attacked Budd. At its highest, Ms Dalgliesh speculates Budd thought he was being attacked, or possibly attacked, by Coco. The difficulty with what is deposed to by Ms Dalgliesh is self-evident.
  5. [114]
    Even if I am wrong, as Lee makes clear, a finding of aggression on the part of Coco does not preclude a finding of serious attack on the part of Budd. There, a Cavalier King Charles Spaniel ran out onto a street and started barking at a German Shepherd. The German Shepherd seized the Spaniel in its mouth and shook it. The Spaniel sustained a number of puncture wounds requiring veterinary treatment. The applicant submitted the German Shepherd did not attack the Spaniel because it did not commence hostilities.
  6. [115]
    The Tribunal at first instance and the Appeal Tribunal were satisfied the German Shepherd attacked the Spaniel. The applicant applied for leave to appeal to the Queensland Court of Appeal contending error in the construction of the word ‘attacked’, relying on the decision in Lake Macquarie City Council, a decision of the Supreme Court of New South Wales in a prosecution for an offence against section 16 of the Companion Animals Act 1998 (NSW). The Court held it is not necessary to establish physical contact between the dog and the animal said to have been attacked to establish an ‘attack’; it is sufficient if the dog’s actions involved an act of hostility or aggression of a kind discussed in other cases.[28]
  7. [116]
    The Queensland Court of Appeal observed the case is not really helpful. It then continued:
  1. [11]
    ... It may be accepted that the behaviour of the spaniel in running and barking could, as the appeal tribunal said, be characterised as an attack. But at issue was whether the German Shepherd had seriously attacked the spaniel, as that expression is defined in s 89(7). 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.
  2. [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 ...

(Emphasis added)

  1. [117]
    I am satisfied, to the requisite standard, having regard to all of the relevant circumstances, including Ms Dalgliesh’s evidence, the uncontested evidence of the deponents to affidavits and the material filed by the parties, Budd attacked Coco. He did so, I find, in a way that caused the death of Coco. The attack constituted a serious attack within the meaning of section 89(2)(a) of the AM Act.
  2. [118]
    Even if Coco swiped at Budd, I am not satisfied Coco attacked Budd or that Budd acted in self-defence. In any case, a finding of aggression on the part of Coco does not preclude a finding of serious attack on the part of Budd, the finding made.

Second incident

  1. [119]
    Ms Dalgliesh was pulled over by Budd while patting Oscar. Mickey was already in Budd’s mouth when she regained her feet. She did not see what happened immediately before Budd seized Mickey.
  2. [120]
    Ms Dalgliesh speculates about how Mickey came to be within Budd’s reach. She asserts she and Budd were ‘attacked’ by Mickey. On the balance of probabilities, she asserts, Mickey jumped from a fence post on to Budd, or immediately beside or in front of him. However, there is no direct evidence he did so.
  3. [121]
    The speculation about how Mickey came to be within Budd’s reach does not establish Mickey attacked Budd. Even if he did so, it is clear Budd attacked Mickey and I so find. The attack by Budd maimed or wounded Mickey to the extent he needed to be euthanised. It follows the attack constituted a serious attack within the meaning of section 89(2)(a) of the AM Act.

Findings

  1. [122]
    In summary, I find:
    1. Budd seriously attacked Coco causing the death of Coco;
    2. Budd seriously attacked Mickey maiming or wounding Mickey to the extent he needed to be euthanised; and
    3. there is no evidence Budd was provoked by either Coco or Mickey or acted in self-defence.
  2. [123]
    The consequence of the findings made is the internal review decision of the Council must be confirmed.

Order

  1. [124]
    The Tribunal orders as follows:
    1. the decision of the Council made 21 August 2023 confirming the decision of the Council made 7 June 2023 declaring the dog microchip number 956000006812996 and tag number 659710 owned by Ms Dalgliesh and named Budd a declared dangerous dog is confirmed; and
    2. the directions given by the Tribunal on 10 October 2023 are vacated.

Footnotes

[1] [2014] QCAT 60, at [16]-[18].

[2] [2015] QCATA 97, at [11]-[13].

[3] AM Act, s 4.

[4] AM Act, s 89(1).

[5] AM Act, s 89(2).

[6] AM Act, s 89(6).

[7] AM Act, s 90(1)(e).

[8] AM Act, s 92.

[9] AM Act, s 94(1).

[10] AM Act, s 94(2).

[11] Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 17(1).

[12] QCAT Act, s 19.

[13] QCAT Act, s 20(1).

[14] QCAT Act, s 20(2).

[15] [2012] QCA 284.

[16] (2005) 63 NSWLR 263; [2005] NSWSC 387.

[17] [2019] QCAT 311, at [17]-[26].

[18] [2012] QCATA 64.

[19] [2017] QCATA 148.

[20] Lee, at [11] and [12].

[21] Imbrogno, at [52].

[22] Ibid, at [55].

[23] Brisbane City Council v Roy [2020] QCATA 147.

[24] Ibid, at [42].

[25] Ibid, at [58].

[26] [2024] QCAT 112.

[27] Ibid, at [100].

[28] Ibid, at [36].

Close

Editorial Notes

  • Published Case Name:

    Dalgliesh v Brisbane City Council

  • Shortened Case Name:

    Dalgliesh v Brisbane City Council

  • MNC:

    [2025] QCAT 34

  • Court:

    QCAT

  • Judge(s):

    Member Scott-Mackenzie

  • Date:

    08 Jan 2025

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
Brache v Douglas Shire Council [2014] QCAT 60
2 citations
Jump To
Cite 1 - [2014] QCAT 60
Cite 2 - [2014] QCAT 60
Brisbane City Council v Roy [2020] QCATA 147
2 citations
Jump To
Cite 1 - [2020] QCATA 147
Cite 2 - [2020] QCATA 147
Imbrogno v Brisbane City Council [2017] QCATA 148
2 citations
Jump To
Cite 1 - [2017] QCATA 148
Cite 2 - [2017] QCATA 148
Lake Macquarie City Council v Morris (2005) 63 NSWLR 263
2 citations
Jump To
Cite 1 - (2005) 63 NSWLR 263
Cite 2 - (2005) 63 NSWLR 263
Lake Macquarie City Council v Morris [2005] NSW SC 387
2 citations
Jump To
Cite 1 - [2005] NSW SC 387
Cite 2 - [2005] NSW SC 387
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 (No 2) [2012] QCATA 64
2 citations
Jump To
Cite 1 - [2012] QCATA 64
Cite 2 - [2012] QCATA 64
O'Donnell v Brisbane City Council [2024] QCAT 112
2 citations
Jump To
Cite 1 - [2024] QCAT 112
Cite 2 - [2024] QCAT 112
Roy v Brisbane City Council [2019] QCAT 311
2 citations
Jump To
Cite 1 - [2019] QCAT 311
Cite 2 - [2019] QCAT 311
Thomas v Ipswich City Council [2015] QCATA 97
2 citations
Jump To
Cite 1 - [2015] QCATA 97
Cite 2 - [2015] QCATA 97

Cases Citing

Case NameFull CitationFrequency
Murdock v Brisbane City Council [2025] QCAT 2971 citation
1

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