Nguyen v Gold Coast City Council Animal Management
[2017] QCATA 121
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- Unreported Judgment
- Nguyen v Gold Coast City Council Animal Management[2017] QCATA 121
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Nguyen v Gold Coast City Council Animal Management[2017] QCATA 121
Nguyen v Gold Coast City Council Animal Management[2017] QCATA 121
CITATION: | Nguyen v Gold Coast City Council Animal Management [2017] QCATA 121 |
PARTIES: | Khoa Van Nguyen (Applicant) v Gold Coast City Council Animal Management (Respondent) |
APPLICATION NUMBER: | APL329-16 |
MATTER TYPE: | General administrative review matters |
HEARING DATE: | 19 July 2017 |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Brown |
DELIVERED ON: | 21 September 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – WHAT IS – GENERALLY – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – WRONG PRINCIPLE – GENERALLY – where applicant asserted error by Tribunal below in exercise of discretion based on incorrect application of test – where no error of law or fact by Tribunal below – whether Tribunal below took into account irrelevant factors – whether Tribunal below took into account relevant factors Animal Management (Cats and Dogs) Act 2008 (Qld), s 3, s 3(c), s 3(d), s 4, s (4)(g), s 4(l), Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(1), s 142(3)(b), s 147 Cachia v Grech [2009] NSWCA 232 Ericson v Queensland Building Services Authority [2013] QCA 391 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 House v The King (1936) 55 CLR 499 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Thomas v Ipswich City Council [2015] QCATA 97 Van Nguyen v Gold Coast City Council Animal Management, unreported, Queensland Civil and Administrative, Member McDonald, 5 October 2016 Winika v Moreton Bay Regional Council [2015] QCAT 436 |
APPEARANCES: | |
APPLICANT: | Mr W Sun, Solicitor Sun & Co, Lawyers |
RESPONDENT: | Mr L Soloai, Gold Coast City Council |
REASONS FOR DECISION
- [1]Mr Van Nguyen owns a dog, Max. On 7 February 2016 Max attacked and bit Ms Green who was walking her baby in a pram outside the property at which Max was living. On 9 February 2016 the Gold Coast City Council made a decision that a Destruction order be issued in respect of Max. Mr Van Nguyen applied to the Tribunal for a review of the decision. The Tribunal confirmed the decision.[1] Mr Van Nguyen has appealed the decision of the Tribunal.
- [2]The grounds of appeal relied upon by Mr Van Nguyen as set out in his outline of submissions can be summarised as:
- The learned member erred in failing to apply the correct legal test in making the correct and preferable decision regarding Max;
- The learned member took into consideration irrelevant matters in making her decision;
- The learned member failed to take into consideration relevant matters in making her decision.[2]
- [3]The grounds of appeal were further clarified during the course of the hearing of the appeal and a further ground was articulated: that the learned member erred in finding that the dog was poorly controlled on the basis that there was no evidence, or insufficient evidence, upon which the learned member could rely to make that finding.[3]
The decision of the Tribunal below
- [4]The facts of the incident on 7 February 2016 were not in dispute before the Tribunal below.[4] The learned member made a number of findings:
- Max’s owners failed to comply with the conditions at Schedule 1 of the Animal Management (Cats and Dogs) Act 2008 (Qld) (“AM Act”) in relation to the dimensions of the (enclosure) fence and were not vigilant in ensuring that Max was unable to access the front gate to the property;[5]
- Max had a history of two attacks on persons, including the incident on 7 February 2016;
- Extreme aggression was observed in Max by experienced animal handlers;
- Without adequate control, the threat posed by Max to his owners and the community remained ‘ever present’;
- Despite the modifications to Max’s enclosure restricting his egress from the enclosure, Max remained a significant threat to his owners and the public;
- Max had attacked on his home premises previously;
- Max was poorly controlled;
- Max’s owners did not appreciate the extent of the risk posed by the dog;
- The weight of the evidence suggested Max was a threat to the community;
- There was no other way of managing the threat posed by Max than the dog’s destruction.[6]
What do the parties say?
- [5]Mr Nguyen says that the learned member erred in failing to consider the ‘focal policy objective’ of the Act to balance the minimisation of the risk to community health and safety posed by a dog with the rights of the individual, in this case Max’s owners. An order for the destruction of a dog must be an order of last resort and only made in circumstances where there are no alternatives which will sufficiently protect the public or other animals from the dog when balancing this consideration with the rights of the individual and animal welfare. Mr Nguyen says that this is the test propounded in Winika v Moreton Bay Regional Council.[7]
- [6]Mr Nguyen says that there was evidence before the learned member that established an alternative to a destruction order. That evidence, says Mr Nguyen, was the modification made by Mr Nguyen to the enclosure for Max which, he says, the Council considered adequate. In his submissions, Mr Nguyen says that:
…the Council representative informed the Appellant that the proposal was acceptable to him as a way to prevent the Appellant’s dog Max from being a threat to other animals or to people or to pose any further risk to the community.[8]
- [7]During the course of the hearing, Mr Nguyen’s solicitor articulated a further ground of appeal. Mr Sun submitted that the learned member erred in finding that Max was poorly controlled on the basis that there was no evidence, or alternatively insufficient evidence, before the member upon which such a finding could be made.[9]
- [8]The Council’s submissions were succinct. The Council says that its position in relation to Max has not changed and that the dog continues to display behaviour that requires Council to ‘continue with the current course of action’.[10]
The statutory framework for appeals
- [9]
- [10]The relevant principles to be applied in determining whether to grant leave to appeal are well established: Is there a reasonably arguable case of error in the primary decision;[13] Is there a reasonable prospect that the applicant will obtain substantive relief;[14] Is leave necessary to correct a substantial injustice to the applicant caused by some error;[15] Is there a question of general importance upon which further argument, and a decision of the appellate court or Tribunal, would be to the public advantage.[16]
- [11]If an appeal is one against a decision on a question of fact only or a question of mixed law and fact, the appeal must be decided by way of rehearing with or without the hearing of additional evidence as decided by the Appeal Tribunal.[17] In deciding the appeal, the Appeal Tribunal may confirm or amend the decision or set aside the decision and substitute its own decision.[18]
- [12]If an appeal involves a question of law, unless the determination of the error of law decides the matter in its entirety in the appellant’s favour, the proceeding must be sent back to the Tribunal for reconsideration.[19]
- [13]The grounds of appeal raise both questions of law and questions of fact.
The Animal Management (Cats and Dogs) Act 2008 (Qld) (“AM Act”)
- [14]The purposes of the AM Act include providing for the effective management of regulated dogs and promoting the responsible ownership of cats and dogs.[20] The purposes of the Act are achieved through, among other things, imposing obligations on regulated dog owners, imposing obligations on persons to ensure dogs do not attack or cause fear, and prohibiting anyone from allowing or encouraging a dog to attack or cause fear to people or other animals.[21]
- [15]A local government may declare a dog to be dangerous, menacing or restricted.[22] A dangerous dog declaration may be made only if a 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.[23]
- [16]The owner of a declared dangerous dog must ensure that each permit condition imposed in relation to the dog is complied with.[24]
- [17]A declared dangerous dog is a ‘regulated dog’.[25]A dangerous dog may be seized by an authorised person if the person reasonably believes the dog:
- has attacked, threatened to attack or acted in a way that causes fear to, a person or another animal; or
- is, or may be, a risk to community health or safety.[26]
- [18]A regulated dog that has been seized may be immediately destroyed by an authorised person if:
- the person reasonably believes the dog is dangerous and the person can not control it; or
- an owner of the dog has asked the person to destroy it.[27]
- [19]The provisions in the AM Act relating to regulated dogs are contained in Chapter 4 of the Act. The purposes of Chapter 4 are to:
- protect the community from damage or injury, or risk of damage or injury, from particular types of dogs called ‘regulated dogs’; and
- ensure the dogs are—
- not a risk to community health or safety; and
- controlled and kept in a way consistent with community expectations and the rights of individuals.[28]
- [20]Section 59(2) of the AM Act sets out how the purposes of Chapter 4 are to be achieved:
- providing for local governments to declare dogs to be dangerous dogs, menacing dogs or restricted dogs;
- providing for the compulsory desexing of declared dangerous dogs and restricted dogs;
- providing for identification of dogs as regulated dogs;
- providing for permits for restricted dogs;
- imposing conditions on keeping, and requirements for the control of, regulated dogs;
- allowing authorised persons to seize or destroy dogs in particular circumstances;
- providing for local governments to administer, and be responsible for, the matters mentioned in paragraphs (a) to (f).
Discussion
- [21]In Thomas v Ipswich City Council[29] the QCAT Appeal Tribunal was required to consider the requirements for a destruction order pursuant to s 127 of the AM Act. The Appeal Tribunal held:
It is clear that the AM Act is primarily directed towards the effective management and responsible ownership of dogs and that the destruction of a dog is a ‘last resort.’ It is generally where the mechanisms in the Act for management fail, or are ineffective, that destruction arises. The essential question is whether the dog constitutes, or is likely to constitute, a threat to the safety of other animals or to people, by attacking them or causing fear, to the extent that the threat may only be satisfactorily dealt with by the destruction of the dog.
…
However, it is plain from the legislative scheme that the protection of the community is given a higher priority, than individual rights of dog owners.[30]
- [22]In Winika v Moreton Bay Regional Council[31] the Tribunal considered the application of s 127 of the AM Act and held:
A decision to destroy a dog is major one and it should not be made unless there is no other way to ensure that the community is protected from the risk of harm.[32]
- [23]In her reasons, the learned member below correctly observed that s 127 of the AM Act contains no specific criteria for the exercise of the discretion to make a destruction order.[33] The learned member also observed that it was necessary for her to look to the objects of the AM Act to determine the legislative intent and to look at the legislative scheme as a whole.[34] The learned member referred to the decision in Thomas and those passages of the judgment dealing with ss 3, 4, 59, 97, 125 and 127 of the AM Act.[35]
- [24]
- [25]Having referred to the legislative provisions, the learned member considered the evidence and made the findings of fact referred to earlier in these reasons.
- [26]Mr Nguyen complains about the finding by the learned member that Max was poorly controlled and says that there was no evidence, or insufficient evidence, upon which the learned member could make such a finding. The reasons refer at some length to the evidence of Ms Monaghan, the Council animal inspector. The learned member noted the evidence of Ms Monaghan that Max was so aggressive following the incident that he had to be seized with a pole for safety reasons.[38] Ms Monaghan’s evidence was that after being seized, Max’s behaviour had deteriorated and that he reacted extremely aggressively when people walked past his enclosure.[39] Ms Monaghan said that she had observed Max’s owners interact with the dog after he had been seized and that on 25 of 32 occasions, Max was observed to fail to comply with commands given by the owners. Commands were observed by Ms Monaghan to require to be repeated at least eight times before being complied with.[40]
- [27]Ms Monaghan was experienced in animal control management.[41] Her evidence was that Max’s owners had no control over the dog.[42] Mr Nguyen gave evidence that after Max escaped from the premises, he shouted for the dog to return. Mr Nguyen’s evidence was that the dog became distracted by the noise of the wheels of the pram being pushed by Ms Green.[43]
- [28]There was sufficient evidence upon which the learned member was entitled to make the finding that Max was poorly controlled. No error is established.
- [29]Mr Nguyen says that the learned member failed to apply the test in Winika and applied in Thomas. Contrary to this submission, if there is any test to be discerned, it was propounded in Thomas and followed in Winika. In any event, Thomas does not, in my view, identify any test as such for the application of s 127. The Appeal Tribunal in Thomas in referring to the destruction of a dog as a ‘last resort’ was, in my view, reflecting upon what s 127 makes clear. An order for a destruction of a dog will be made in circumstances where a dog is dangerous and cannot be controlled. It is correct to say that s 127 does not identify any criteria for the exercise of the discretion to order the destruction of a dog. The learned member, referring to Thomas, acknowledged this in her reasons.
- [30]Section 127 of the AM Act applies to regulated dogs.[44] A regulated dog is a dangerous dog, a menacing dog or a restricted dog.[45] If a dog is reasonably believed to be dangerous by an authorised person and the person cannot control the dog, it may be destroyed upon the elapse of time after service upon the dog’s owner of a destruction order and subject to any successful review of the decision to destroy the dog.[46] In circumstances where a dangerous dog declaration has been made, a decision maker will need to consider whether the dog can be controlled. Whether a dog can be controlled will be a matter of fact and degree in every case.
- [31]I would pose the question posited by the Appeal Tribunal in Thomas slightly differently: the essential question is whether the dog can be controlled taking into consideration the threat, or likely threat, to the safety of other animals or to people by attacking them or causing fear, posed by the dog.
- [32]Determining whether a dog can be controlled will require a consideration by a decision maker of a range of matters which might include:
- The relevant history of the behaviour of the dog giving rise to consideration of the making of a destruction order;
- Any other relevant history of the behaviour of the dog including the circumstances giving rise to the declaration that the dog is a regulated dog;
- The current behaviour of the dog including whether the behaviour of the dog has been, and/or could be, modified through appropriate training;
- The arrangements for the dog at its place of residence including the security of any enclosure and whether any interaction by the dog with persons, including household members and other persons entering upon the property, poses a threat of harm to such persons;
- The risk the dog poses to community health or safety including the risk of harm to people and other animals outside the place of residence of the dog;
- Compliance by the owner of the dog with any permit conditions imposed as a result of the dog being declared a regulated dog;
- Whether the owner of the dog demonstrates insight into, and understanding of, the dog’s behaviour and has acted appropriately to mitigate any risk posed by the dog to people or animals;
- The rights of individuals, including the owner of the dog.
- [33]The decision maker must also take into consideration the purposes of the Act generally,[47] the purposes of Chapter 4 specifically,[48] and how the Act states those purposes are to be achieved.[49] As the Appeal Tribunal said in Thomas any decision must be made in the context of the legislative scheme, and specifically Chapter 4 of the AM Act, in which the protection of the community is clearly given a higher priority than individual rights of dog owners.
- [34]Central to Mr Nguyen’s ground of appeal that the learned member misapplied the test in Thomas and Winika, is his submission that the learned member confirmed the destruction order in circumstances where the Council had, prior to the incident involving Ms Green, advised Mr Nguyen that the enclosure for Max at Mr Nguyen’s residence was adequate.
- [35]Mr Nguyen says that the learned member found that the Council considered that the enclosure to keep the dog was acceptable. It follows, says Mr Nguyen, that there is an acceptable alternative to destroying the dog which will sufficiently protect the public or other animals from the dog.[50] The difficulty with this submission is that the learned member did not make such a finding.
- [36]In the hearing below, the following exchange took place between the representative for Mr Nguyen and the Council and the Tribunal:
MR SULTAN: … he’s (the Council’s representative, Mr Soloai) satisfied that provided the dog stays within those enclosure areas identified at the backyard, he believes that the dog would be of no risk to the public. And I’ve got the permission of Mr Solowai (sic) to say that to you. So if we could just confirm that please.
…
MR SOLOWAI: No. No. Council’s going to hold its position, in terms of the destruction order. The visit to the property was done in anticipation of an answer today and if the dog is returned that there would be a suitable enclosure, if the dog is returned to the owner. So that was just to expedite the process should Council be required – well, would be required to do an inspection but we did that prior to coming here, in case that decision was made.[51]
- [37]The learned member made no findings as to the adequacy or otherwise of the modifications to the enclosure at Mr Nguyen’s property. The only finding the learned member made regarding the enclosure was that despite the modifications thereto restricting the egress of the dog, Max remained a significant threat to both the owners and the public.[52]
- [38]As the reasons reveal, the learned member considered the circumstances of the attack upon Ms Green.[53] The learned member considered the history of Max’s behaviour including the previous attack upon a person at a residence at which Max was then residing.[54] The learned member considered the evidence regarding behavioural training Max had undergone and the dog’s current behaviour including whether Max’s behaviour could be modified through appropriate training.[55] The learned member considered the arrangements for the dog at Mr Nguyen’s residence and the modification to the enclosure.[56] The learned member considered the risk Max posed to the public and to other animals.[57] The learned member considered compliance by Mr Nguyen with registration permit conditions imposed upon Max.[58] The learned member considered the insight and understanding demonstrated by Mr Nguyen in relation to Max’s behaviour and whether steps had been taken by Mr Nguyen to mitigate any risk to persons or animals posed by Max.[59] The learned member considered the purposes of the AM Act generally and Chapter 4 specifically and how the purposes are to be achieved.[60]
- [39]Having considered the matters set out in her reasons, and making the findings at reasons [26], the learned member concluded that the weight of the evidence indicated that the dog was a risk to the community and that there was no other way of managing the threat other than the destruction of the dog. The conclusion by the learned member was clearly based upon a consideration of the matters set out in her reasons and the purposes of the AM Act and specifically Chapter 4.
- [40]The exercise of the discretion to make an order for the destruction of a dog requires a consideration of all the relevant facts and circumstances in the context of the clear legislative intent that the community be protected from damage or injury, or the risk of damage or injury, from regulated dogs and that dogs are not a risk to community health or safety and are adequately controlled. It is not, as Mr Nguyen contends, sufficient to establish that an enclosure may be adequate to contain a dog. This is but one factor that falls for consideration, but it cannot be considered in isolation to all of the other relevant factors.
- [41]The principles to be applied in an appeal against the exercise of a discretionary judgment are found in House v R:
It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution, for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.[61]
- [42]The learned member did not act upon wrong principle, nor did she allow extraneous or irrelevant matters to guide her. Mr Nguyen has not demonstrated that the learned member erred in relation to the facts or that she failed to take into account a material consideration. Mr Nguyen has established no error by the learned member in the exercise of her discretion in deciding to confirm the decision of the Council to order Max’s destruction.
- [43]Insofar as Mr Nguyen’s grounds of appeal rely upon an error of fact, Mr Nguyen has failed to demonstrate any error by the learned member. It follows that there is no substantial injustice caused by error that requires the grant of leave to appeal. Leave to appeal is refused.
Orders
- Leave to appeal refused.
- Appeal dismissed.
Footnotes
[1]Van Nguyen v Gold Coast City Council Animal Management, unreported, Queensland Civil and Administrative Tribunal, Member McDonald, 5 October 2016.
[2]Applicant’s submissions filed 01.03.2017.
[3]Transcript in the hearing of the Application for leave to appeal or Appeal, 1-40, line 35.
[4]Reasons at [4].
[5]Ibid at [23].
[6]Ibid at [26].
[7][2015] QCAT 436.
[8]Applicant’s submissions filed 01.03.2017 at [32(e)].
[9]Transcript in the hearing of the Application for leave to appeal or Appeal, T1-40, line 34 to T1-42, line 47.
[10]Respondent’s submissions filed 10.03.2017.
[11]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”), s 142(1).
[12]Ibid, s 142(3)(b).
[13] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[14]Cachia v Grech [2009] NSWCA 232 at [13].
[15]Op cit 13.
[16]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
[17]QCAT Act, s 147(1) and (2).
[18]Ibid, s 147(3).
[19]Ericson v Queensland Building Services Authority [2013] QCA 391.
[20]AM Act, s 3(c) and (d).
[21]Ibid, s (4)(g), (l) and (m).
[22]Ibid, s 89(1).
[23]Ibid, s 89(2).
[24]Ibid, s 97.
[25]AM Act, s 60 and s 61.
[26]Ibid, s 125(1)(a).
[27]Ibid, s 127(2).
[28]Ibid, s 59(1).
[29][2015] QCATA 97.
[30]Ibid, [18] and [20].
[31][2015] QCAT 436.
[32]Ibid, [15].
[33]Reasons at [17].
[34]Ibid.
[35]Ibid at [18] – [20].
[36]Ibid at [21].
[37]Ibid at [22].
[38]Reasons at [12]; Transcript of the Tribunal Hearing below, T1-25: lines 24 – 32; T1-26: line 45; T1-27: lines 1 – 17.
[39]Reasons at [12]; Transcript of the Tribunal Hearing below, T1-25: lines 46 – 47, T1-26: lines 8 – 15.
[40]Reasons at [12]; Transcript of the Tribunal Hearing below, T1-26: lines 18 – 3.
[41]Transcript of the Tribunal Hearing below, T1-25, lines 9 – 14.
[42]Ibid, T1-26, lines 20 and 30.
[43]Statement of Van Khoa Nguyen filed 01.06.2016 – it is noted that Mr Nguyen referred to the pram as a ‘trolley’.
[44]AM Act, s 127(1).
[45]Ibid, s 60.
[46]AM Act, s 127(2) and s 127(6).
[47]Ibid, s 3.
[48]Ibid, s 59(1).
[49]Ibid, s 4 and s 59(2).
[50]Applicant’s submissions filed 01.03.2017 at [29].
[51]Transcript of the Tribunal Hearing below, T1-4, lines 17-31.
[52]Reasons at [26].
[53]Ibid at [6], [10] and [13].
[54]Ibid at [7] and [8].
[55]Ibid at [9] and [12].
[56]Reasons at [4] and [11].
[57]Ibid at [8] and [12].
[58]Ibid at [23].
[59]Ibid at [12] and [24].
[60]Ibid at [17] – [22].
[61]House v The King (1936) 55 CLR 499 at pp 504-505.