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Imbrogno v Brisbane City Council[2017] QCATA 148

Imbrogno v Brisbane City Council[2017] QCATA 148

CITATION:

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

PARTIES:

Albert Imbrogno

Jeffrey John Langford

(Applicants)

v

Brisbane City Council

(Respondent)

APPLICATION NUMBER:

APL450-16

MATTER TYPE:

General administrative review matters

HEARING DATE:

22 August 2017

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

DELIVERED ON:

20 December 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. Leave to appeal refused.
  2. Appeal dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – WHAT IS – GENERALLY – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – WRONG PRINCIPLE – GENERALLY – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – FUNCTIONS OF APPELLATE COURT – WHERE FINDINGS BASED ON CREDIBILITY OF WITNESSES – NECESSITY FOR FINDING TO BE CLEARLY WRONG – where applicants assert error by Tribunal in exercise of discretion – where applicants assert Tribunal erred in preferring particular evidence as to circumstances of dog attack – where applicants assert no evidence that injuries sustained by dog in attack satisfied definition of grievous bodily harm – where no error of law or fact by Tribunal below  

Animal Management (Cats and Dogs) Act 2008 (Qld) s 3(c), s 3(d), s (4)(g), s (4)(l),  s (4)(m), s 60,  s 61(a), s 89(1), s 89(2), s 89(7), s 90(1),  s 90(1)(d), s 94, s 180, s 181, s 186(1)(b), s 187(2), s 188, Schedule 2

Criminal Code Act 1899 (Qld) s 1

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20, s 142(1), s 142(3)(b), s 147

Cachia v Grech [2009] NSWCA 232

Devries v Australian National Railways Commission (1993) 177 CLR 472

Ericson v Queensland Building Services Authority [2013] QCA 391

Fox v Percy (2003) 214 CLR 118

Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388

House v The King (1936) 55 CLR 499.

Imbrogno & Anor v Brisbane City Council [2016] QCAT 455

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

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 Attorney-General and Minister for Justice and Minister for Training and Skills [2017] QSC 308

Van Cuylenburg v Tablelands Regional Council [2012] QCATA 60

APPEARANCES:

APPLICANT:

The applicants represented themselves

RESPONDENT:

Mr Kevin Cartledge, Brisbane City Council

REASONS FOR DECISION

  1. [1]
    The applicants, Mr Imbrogno and Mr Langford, are the owners of two Doberman dogs, Zeus and Thor. The Brisbane City Council declared Zeus and Thor to be dangerous dogs in accordance with the provisions of the Animal Management (Cats and Dogs) Act 2008 (Qld) (the AM Act) following an attack upon another dog, Miffy, at an off leash dog park.
  2. [2]
    The applicants applied to the Tribunal for a review of the Council’s decision. The Tribunal confirmed the decision of the Council to declare Zeus and Thor to be dangerous dogs.[1] The applicants appeal the Tribunal’s decision.

The legislative framework – the AM Act

  1. [3]
    The purposes of the AM Act include providing for the effective management of regulated dogs and promoting the responsible ownership of cats and dogs.[2] 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.[3]
  2. [4]
    A regulated dog is: a declared dangerous dog, a declared menacing dog or a restricted dog.[4] A local government may declare a dog to be dangerous, menacing or restricted.[5] A declared dangerous dog includes a dog declared to be dangerous under s 94 of the AM Act.[6] A dangerous dog declaration may be made if a dog:
  1. has seriously attacked, or acted in a way that caused fear to, a person or another animal; or
  2. may, in the opinion of an authorised person having regard to the way the dog has behaved towards a person or another animal, seriously attack, or act in a way that causes fear to, the person or animal.[7]
  1. [5]
    ‘Seriously attack’ means to attack in a way causing bodily harm, grievous bodily harm or death.[8] ‘Grievous bodily harm’ and ‘bodily harm’ have the meaning given by the Criminal Code Act 1899 (Qld) (“Criminal Code”), s 1.[9]
  2. [6]
    If a local government proposes to make a regulated dog declaration it must first give to the owner of the dog a proposed declaration notice.[10] The local government must consider any written representations and evidence submitted by the dog owner.[11] If the local government is satisfied that a ground for making the declaration still exists, it must make the regulated dog declaration.[12]

The legislative framework – appeals to the Appeal Tribunal

  1. [7]
    An appeal on a question of law is as of right.[13] An appeal on a question of fact or mixed law and fact may only be made with the leave of the Appeal Tribunal.[14]
  2. [8]
    If an appeal is one against a decision on a question of fact only or a question of mixed law and fact, and subject to leave to appeal being granted, the appeal must be decided by way of rehearing with or without the hearing of additional evidence as decided by the Appeal Tribunal.[15] In deciding the appeal, the Appeal Tribunal may confirm or amend the decision or set aside the decision and substitute its own decision.[16]
  3. [9]
    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;[17] is there a reasonable prospect that the applicant will obtain substantive relief;[18] is leave necessary to correct a substantial injustice to the applicant caused by some error;[19] 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.[20]
  4. [10]
    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.[21]
  5. [11]
    The grounds in the present appeal raise both questions of law and questions of fact.

The hearing below and the decision of the Tribunal

  1. [12]
    In the hearing below, evidence was given by a number of witnesses including various Council officers and the owner of Miffy, the dog involved in the incident with Zeus and Thor. The applicants represented themselves and gave evidence.
  2. [13]
    It is appropriate to pause here to comment on the decision made by the Council which was the subject of the review application. The Council made a regulated dog declaration in respect of each of Zeus and Thor on 21 October 2015. As a result of what was identified as a typographical error, the Council made further regulated dog declarations in respect of Zeus and Thor on 15 January 2016. It was these decisions the applicants sought to review below. The decisions by the Council were based upon two separate incidents. The first occurred on 18 July 2015 when Thor and Zeus attacked Miffy. The second incident was alleged to have occurred on 25 July 2015 when Zeus, while being walked off leash, attacked another dog.
  3. [14]
    During the hearing below the Council advised the learned member that the relevant declaration was made solely on the basis of the 18 July incident.[22] The hearing was accordingly limited to a consideration of the 18 July 2015 incident.
  4. [15]
    The learned member found:
    1. Thor and Zeus had been involved in a savage altercation with Miffy;[23]
    2. Miffy sustained an eye injury resulting in a lack of blink reflex;[24]
    3. Miffy subsequently underwent surgery to cleanse and close the wounds sustained;[25]
    4. There was no clear evidence as to which dog first displayed aggressive behaviour and that even if Miffy had been aggressive, the response by Zeus and Thor was disproportionate;[26]
    5. The injuries sustained to Miffy’s left eye took several months to resolve;[27]
    6. The injuries sustained by Miffy satisfied the definition of ‘grievous bodily harm’ under the AM Act.[28]
  5. [16]
    The learned member found that the correct and preferable decision was that made by the Council on 11 April 2016 declaring Zeus and Thor to be regulated dangerous dogs.[29]

The grounds of appeal

  1. [17]
    The grounds of appeal relied upon by the applicants are somewhat difficult to discern from the applicants’ material including the Application for leave to appeal or appeal and the further material filed in the appeal. During the course of the appeal hearing, and not without some difficulty, the applicants were able to identify the grounds of appeal as:
    1. The learned member erred in finding that Miffy had sustained grievous bodily harm on the basis that the evidence did not support such a finding;
    2. The learned member erred in placing weight on the photographs of the injuries sustained by Miffy in finding that Miffy had sustained grievous bodily harm;
    3. There was no reasonable basis upon which an opinion could be formed that Zeus and Thor may attack or act in a way that causes fear to a person or animal;[30]
    4. The learned member failed to give sufficient weight to the evidence of Dr Cam Day;
    5. The learned member erred in preferring the evidence of the owner of Miffy in relation to the circumstances of the incident;
    6. The discretion to make the dangerous dog declaration miscarried and the correct and preferable decision was that Zeus and Thor be declared menacing dogs. 

Consideration

  1. [18]
    The first two grounds of appeal relate to the finding by the learned member that Miffy had sustained grievous bodily harm in the incident. These grounds of appeal raise questions of fact.
  2. [19]
    In evidence below was an affidavit by Tamsin Sutherland, the owner of Miffy. Ms Sutherland gave evidence at the hearing. Ms Sutherland’s evidence was that Miffy sustained severe and extensive injuries around her head as a result of Thor and Zeus grabbing her around the head and neck.[31] Ms Sutherland’s evidence was that Miffy was taken to Greencross Veterinarian Surgery immediately following the incident where she underwent surgery to cleanse and close the multiple wounds she had received.[32] Ms Sutherland’s evidence was that Miffy sustained a serious injury to her left eye which inhibited her ability to blink.[33]
  3. [20]
    Exhibited to Ms Sutherland’s affidavit were records of Greencross Veterinarian Surgery relating to treatment administered to Miffy.[34] The treatment records for 18 July 2015, the day of the incident, include notations that wounds around Miffy’s head and neck were observed; nerve damage to the right eye including a lack of blink reflex was noted; wounds would require surgery and the possibility of an x-ray to assess damage to the skull; multiple large and small full depth puncture wounds over the head and neck region were noted with significant underrunning. The records note that Miffy underwent surgery on the day after the incident which included the suturing of the wounds. The records note that three days after the attack there continued to be no blink in the right eye. On 3 August 2015, two weeks after the incident, the records note that Miffy’s right eye was not blinking properly. By 28 September 2015 the right eye and blink were noted as seemingly improving however there was still weeping. 
  4. [21]
    There was no evidence given at the hearing below by the treating veterinarian.  Directions were made in the proceeding below for the Council to file and serve any witness statements, including expert witnesses.[35] The applicants were also directed to file and serve statements by witnesses. The applicants filed no statements of evidence addressing the issue of the nature and extent of the injuries sustained by Miffy in the attack.
  5. [22]
    Ms Sutherland gave evidence at the hearing that Miffy underwent surgery and sustained eye damage resulting in difficulties with blinking and closing the eye that took some months to resolve.[36]
  6. [23]
    As I have observed ‘seriously attack’ means to attack in a way causing bodily harm, grievous bodily harm or death.[37] The definition of ‘grievous bodily harm’ contained in the Criminal Code is:
  1. the loss of a distinct part or an organ of the body; or
  2. serious disfigurement; or
  3. any bodily injury of such a nature that, if left untreated, would endanger or be likely to endanger life, or cause or be likely to cause permanent injury to health;

whether or not treatment is or could have been available.[38]

  1. [24]
    ‘Bodily harm’ is defined as:

any bodily injury which interferes with health or comfort.[39]

  1. [25]
    The learned member found that the injuries sustained by Miffy satisfied the definition of ‘grievous bodily harm’ under the Criminal Code. The argument by the applicants’ that this finding was erroneous appears to turn on what they say is the lack of evidence that, if Miffy’s injuries had been left untreated, the injuries would have been likely to endanger her life or cause or be likely to cause permanent injury to health. I do not accept this submission.
  2. [26]
    The evidence before the learned member was that Miffy sustained extensive and serious injuries in the attack. Ms Sutherland referred in her evidence to Miffy having become completely limp during the attack and Ms Sutherland thought she had been killed.[40] Ms Sutherland’s evidence was that immediately following the attack she took Miffy from her husband’s arms, felt a heartbeat and only then knew that the dog was still alive.[41]
  3. [27]
    The evidence before the learned member was that the injuries to Miffy’s head and specifically the nerve damage to her right eye took several months to recover.[42] At one stage, the opinion of the treating veterinarian was that the normal blink in the right eye may not return.[43]
  4. [28]
    No objection was raised by the applicants to the veterinary surgery records going in to evidence in the absence of a witness from the veterinary surgery being called nor was any objection raised, or submission made, by the applicants in relation to the content of the surgery records. The applicants made no submissions at the hearing regarding the weight that might be placed by the learned member on the records. The applicants were given the opportunity to, and did, cross examine Ms Sutherland. In the course of cross examination no questions were asked of Ms Sutherland in relation to the nature and extent of the injuries sustained by Miffy nor was it put to Ms Sutherland that there was a lack of evidence as to the extent of Miffy’s injuries. At no time during the hearing below did the applicants raise with the Tribunal, or any witness, that there was a lack of evidence to support a finding that, insofar as the nature and extent of the injuries sustained in the incident was concerned, Miffy had been seriously attacked. 
  5. [29]
    There was sufficient evidence before the learned member to enable her to conclude, as she did, that the incident constituted a serious attack causing Miffy to sustain grievous bodily harm. The evidence of Ms Sutherland was clear and unequivocal. Her evidence was supported by the veterinary surgery records in relation to which the applicants raised no objection. Even if the injuries sustained by Miffy did not satisfy the definition of grievous bodily harm, and as the applicants rightly conceded in the course of the hearing of the appeal, the injuries satisfied the definition of bodily harm under the Criminal Code which was sufficient for the learned member to find that Zeus and Thor had seriously attacked Miffy for the purposes of s 89(2) of the AM Act.
  6. [30]
    The applicants have not raised as a specific ground of appeal that the failure by the Council to call a witness from the veterinary surgery constituted a lack of procedural fairness. It is, however, a contention implicit in the applicants’ arguments that the evidence did not support a finding that Miffy had sustained grievous bodily harm. A failure to afford procedural fairness is an error of law. There was, in my view, no lack of procedural fairness afforded to the applicants. They had every opportunity to adduce evidence as to the injuries sustained by Miffy including the personal observations of Mr Imbrogno who witnessed the incident and its aftermath. No such evidence was led. As I have observed, the applicants had the opportunity to cross examine Ms Sutherland regarding the nature and extent of the injuries sustained by Miffy. They did not do so. The applicants had the opportunity to object to the veterinary surgery records going into evidence. They did not do so. Finally, the applicants had the opportunity to make submissions to the learned member regarding the weight to be given to the veterinary surgery records. Again, they did not do so. 
  7. [31]
    Even if I was persuaded, which I am not for the reasons I have set out, that the failure by the Council to call a witness from the veterinarian surgery resulted in a lack of procedural fairness to the applicants, the applicants face two hurdles they are unable to overcome in the disposition of this appeal. Firstly, the evidence of Ms Sutherland alone was sufficient for the learned member to make a finding that the injuries sustained by Miffy satisfied the definition of grievous bodily harm. Secondly, and as the applicants conceded during the appeal hearing, the evidence before the learned member clearly supported a finding that Miffy had sustained bodily harm in the attack. This was sufficient for a finding that Miffy had been seriously attacked in the incident.
  8. [32]
    The applicants say that the learned member erred in placing undue weight on the photographs of Miffy following the incident. When this ground of appeal was further explored at the appeal hearing it became apparent that the complaint by the applicants was that firstly, the photographs did not support the learned member’s finding that Miffy had sustained grievous bodily harm in the incident and, secondly, it should be assumed that the learned member had an emotional response to the photographs which, in some unspecified way, infected her decision with error.
  9. [33]
    The photographs of Miffy following the incident were exhibited to the affidavit of Ms Sutherland.[44] The learned member makes no mention of the photographs in the reasons. There is nothing in the reasons to suggest that the member placed any weight on the photographs in concluding, as she did, that the injuries sustained by Miffy in the incident satisfied the definition of grievous bodily harm. This ground of appeal is not made out.  
  10. [34]
    The applicants say that there was no reasonable basis upon which an opinion could be formed that Zeus and Thor may attack or act in a way that causes fear to a person or animal. The difficulty for the applicants with this submission is that s 89(2) of the AM Act is expressed in the alternative. A dangerous dog declaration may be made for a dog only 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.
  11. [35]
    Although the learned member did not expressly find, using the words found in s 89(2) of the AM Act, that Thor and Zeus had seriously attacked Miffy, it is clear from the reasons she was satisfied that such an attack had occurred. Section 89(2)(a) provides that a dangerous dog declaration may be made if a dog has seriously attacked a person or another animal. The learned member made such a finding. It was unnecessary for the learned member to consider the alternative grounds under s 89(2). This ground of appeal is not made out.
  12. [36]
    The applicants say that the learned member failed to give sufficient weight to the evidence of Dr Cam Day. This ground appears to be a distillation of a more diffuse argument set out in the Application for leave to appeal or appeal in which the applicants say that the Brisbane City Council failed, in making the declaration, to consult dog experts or acknowledged and experienced people.[45]
  13. [37]
    Before the learned member were the submissions made by the applicants to the Council prior to the decision by the Council to make the regulated dog declarations.[46] Attached to the submissions was a letter from Dr Cam Day, an animal behaviour veterinarian.[47] Dr Day was not called to give evidence at the hearing. Dr Day stated that he had not undertaken formal aggression training of Zeus and Thor, however the dogs exhibited a good understanding of bite inhibition and that it was likely good success could be achieved with targeted training to reduce their reaction to other dogs.
  14. [38]
    The learned member referred in her reasons, at some length, to the evidence of Dr Day.[48] It is clear from the reasons that the learned considered and weighed the evidence of Dr Day. The learned member found that there was no evidence Thor and Zeus had undergone the targeted training referred to by Dr Day. The learned member found, correctly in my view, that whether such training had been undertaken was not material to the outcome of the proceeding if a finding was made that Thor and Zeus had seriously attacked Miffy. This ground of appeal is not made out.   
  15. [39]
    The applicants say that the learned member erred in preferring the evidence of Ms Sutherland regarding the circumstances of the incident. This ground of appeal raises a question of fact.
  16. [40]
    In Devries v Australian National Railways Commission, the High Court held:

More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact. If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”.[49]

  1. [41]
    The evidence of Ms Sutherland was that both Zeus and Thor attacked Miffy at the same time and that both dogs had hold of Miffy most of the time during the incident but one more so than the other.[50] Ms Sutherland gave evidence that she and her husband had difficulty forcing Zeus and Thor to release Miffy.[51] In her statement of evidence, Ms Sutherland said that both Zeus and Thor lunged at Miffy and grabbed her around the head and neck.[52]
  2. [42]
    Mr Imbrogno’s evidence was that Zeus took Miffy in his mouth[53] but that Thor was not involved in any way in the attack on Miffy.[54] In their submissions to the Council in response to the proposed regulated dog declaration, the applicants appeared to concede that an incident involving both Thor and Zeus had occurred and that the larger dogs were engaging in ‘mouth playing’ (play biting) with Miffy.  
  3. [43]
    Whilst the learned member made no specific finding regarding whose evidence she preferred, it is implicit in her reasons that she accepted the evidence of Ms Sutherland.[55] The evidence of Ms Sutherland was clear and unequivocal. The learned member had the opportunity to assess the evidence and the demeanour of both Ms Sutherland and Mr Imbrogno. The learned member was entitled to prefer Ms Sutherland’s evidence to that of Mr Imbrogno. The applicants have demonstrated no error on the part of the learned member in making the findings of fact she made regarding the circumstances surrounding the incident.
  4. [44]
    The final ground of appeal relied upon by the applicants is that the discretion exercised by the learned member in making the regulated dog declaration in respect of Thor and Zeus miscarried. To succeed on this ground of appeal, the appellants must show that the learned member acted upon a wrong principle or gave weight to irrelevant matters or failed to give weight or sufficient weight to a relevant consideration or made a mistake as to the facts or that the decision by the learned member is so unreasonable or unjust that, in this appeal, it can be inferred that there has been a failure to properly exercise the discretion.[56] In dealing with this ground of appeal, it is appropriate to consider the various steps associated with the making of a regulated dog declaration under Chapter 4 Part 4 of the AM Act.
  5. [45]
    The ground relied upon by the Council to issue the prescribed declaration notice was the attack by Thor and Zeus upon Miffy. The notice included the reasons for the proposed declaration.[57] The Council considered the submissions by the applicants and the further evidence they submitted. The Council, after receiving the applicants’ submissions and further evidence, was satisfied that the relevant ground under s 89 of the AM Act still existed, the relevant ground being the attack upon Miffy. The Council, relying upon s 94(2) of the Act, made the regulated dog declaration in relation to Thor and Zeus.
  6. [46]
    The Tribunal below was required to produce the correct and preferable decision.[58] The learned member was required to hear and decide the review by way of a fresh hearing on the merits.[59]
  7. [47]
    The steps required to be undertaken in deciding whether to make a regulated dog declaration under Chapter 4, Part 4 of the AM Act include the local government giving to the owner of a dog a proposed declaration notice, the dog owner being given the opportunity to make written representations and provide evidence, the local government considering any representations and evidence by the dog owner and the local government deciding whether to make a regulated dog declaration. It is appropriate to pause here to consider the mechanisms under the AM Act for reviewing a decision.
  8. [48]
    Every review of an original decision must be, in the first instance, by way of an application for internal review.[60] An original decision is one about which an information notice must be given.[61] An information notice is a notice setting out a decision and the reasons for the decision, that the decision may be internally reviewed and how to apply for the review.[62] An application for internal review of an original decision may be a designated review application or a general review application.[63] An application for internal review of a decision under Chapter 4 Part 4 of the AM Act is a general review application. The chief executive of a local government must make a decision about the general review application, called the internal review decision.[64] After making an internal review decision, the chief executive must give to the applicant a review notice of the internal review decision.[65] A person who is given, or is entitled to be given, a review notice for a decision under Chapter 8, Part 1 of the AM Act may apply to the Tribunal for a review of the decision.[66]
  9. [49]
    In Van Cuylenburg v Tablelands Regional Council[67] the QCAT Appeal Tribunal held that, on an application to review a decision under s 94 of the AM Act, an applicant is entitled to have reviewed the decisions taken at each step of the process set out in Chapter 4, Part 4 of the Act. The Appeal Tribunal held that Chapter 4, Part 4 of the AM Act provides for a single process consisting of a number of steps.[68]
  10. [50]
    I do not understand Van Cuylenburg to be authority for the proposition that a review of a decision made under s 94 of the AM Act also involves a review of the decision to issue a notice of proposed declaration under s 90 of the Act. A decision by a local government to issue a proposed declaration notice under s 90 of the AM Act is not a reviewable decision for the purposes of s 188 of the Act. Such a decision is not an ‘original decision’ in relation to which an information notice must be given. The AM Act sets out various circumstances in which an information notice must be given. An information notice is not required to be given at the time a proposed declaration notice under s 90 is given. 
  11. [51]
    An application for a review of a decision under s 94 of the Act cannot, in my view, extend to what is in effect the review of a decision under s 90 of the Act which is not otherwise a decision for the purposes of s 188 of the Act.  The steps referred to in Van Cuylenburg, and which are required to be considered as part of the review of a decision under s 94 of the Act, are those relating to the circumstances relevant to s 89(2), (3) or (4), a consideration of any written representations and evidence submitted by a dog owner, and a determination as to whether the relevant ground under s 89 still exists. 
  12. [52]
    Of the application of s 89 of the AM Act, the QCAT Appeal Tribunal has 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.[69]

  1. [53]
    It is apparent from her reasons that the learned member considered the various steps set out in Chapter 4 Part 4 of the AM Act. The learned member considered whether a ground existed for the making of a dangerous dog declaration as required by s 89(2) of the AM Act. In making this finding the learned member, as required by s 94(1) of the Act, considered the submissions by the applicants and the evidence upon which they relied.
  2. [54]
    The learned member considered whether the attack had been provoked by Miffy. The evidence of Mr Imbrogno at the hearing below was that he did not see Miffy bite either Thor or Zeus.[70] The learned member, as she was required to do, considered all of the evidence and submissions as to the circumstances of the incident.[71] The learned member found that the evidence was unclear as which of the three dogs first growled or displayed aggressive behaviour but that even if Miffy had been aggressive, the response by Thor and Zeus was disproportionate.[72]
  3. [55]
    The learned member found that Thor and Zeus had seriously attacked Miffy. 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.[73] As was held in Lee v Brisbane City Council (No 2)[74] 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.[75] The discretion exercised by the learned member did not miscarry. This ground of appeal fails.
  4. [56]
    The applicants have failed to establish any of their grounds of appeal. Insofar as leave to appeal is required, the applicants have failed to demonstrate any error on the part of the learned member. There is no reasonable prospect that the applicants will obtain substantive relief or that leave to appeal is required to correct a substantial injustice nor is there any question of general importance to be argued and decided. Accordingly, leave to appeal is refused. The appeal is otherwise dismissed.

Footnotes

[1] Imbrogno & Anor v Brisbane City Council [2016] QCAT 455.

[2]  AM Act, s 3(c) and (d).

[3]  Ibid, s (4)(g), (l) and (m).

[4]  Ibid, s 60.

[5]  Ibid, s 89(1).

[6]  Ibid, s 61(a).

[7]  Ibid, s 89(2).

[8]  Ibid, s 89(7).

[9]  Ibid, Schedule 2.

[10]  Ibid, s 90(1).

[11]  Ibid, s 94(1).

[12]  Ibid, s 94(2).

[13] Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”), s 142(1).

[14]  Ibid, s 142(3)(b).

[15]  QCAT Act, s 147(1) and (2).

[16]  Ibid, s 147(3).

[17] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.

[18] Cachia v Grech [2009] NSWCA 232 at [13].

[19]  Op cit 17.

[20] 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.

[21] Ericson v Queensland Building Services Authority [2013] QCA 391.

[22]  Transcript T1-43, lines 16-18.

[23]  Reasons [3].

[24]  Ibid.

[25]  Ibid.

[26]  Ibid, [15].

[27]  Ibid, [17].

[28]  Ibid, [21].

[29]  Ibid.

[30]  AM Act, s 89(2)(b).

[31]  Affidavit of Tamsin Sutherland sworn 21 July 2016 at [19].

[32]  Ibid, [23].

[33]  Ibid, [24].

[34]  Ibid, exh TS/02.

[35]  GAR124-16, Directions made 20 June 2016.

[36]  Transcript T1-41, lines 5-7.

[37]  AM Act, s 89(7).

[38]  Criminal Code, s 1.

[39]  Ibid.

[40]  Affidavit of Tamsin Sutherland sworn 21 July 2016 at [17].

[41]  Ibid at [20].

[42]  Transcript T1-41, lines 5-7.

[43]  Affidavit of Tamsin Sutherland sworn 21 July 2016, exh TS/03.

[44]  Affidavit of Tamsin Sutherland sworn 21 July 2016, exh TS/01.

[45]  Application for leave to appeal or appeal at [8] and [9].

[46]  Affidavit of Brad Kelso, exh BK/01.

[47]  Letter Dr Cam Day To Whom it May Concern, 18 August 2015.

[48]  Reasons [11].

[49]Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 referred to with approval in Fox v Percy (2003) 214 CLR 118.

[50]  Transcript T1-37, lines 38-41.

[51]  Ibid T1-38, lines 27-40; T1-39, lines 12-16.

[52]  Affidavit of Tamsin Sutherland sworn 21 July 2016 at [14], [15].

[53]  Transcript T1-27, line 37.

[54]  Ibid T1-28, line 24.

[55]  Reasons [18].

[56]House v The King (1936) 55 CLR 499.

[57]  AM Act, s 90(1)(d).

[58]  QCAT Act, s 20(1).

[59]  Ibid, s 20(2).

[60]  AM Act, s 180.

[61]  Ibid, Schedule 2.

[62]  AM Act.

[63]  Ibid, s 181.

[64]  Ibid, s 186(1)(b).

[65]  Ibid, s 187(2).

[66]  Ibid, s 188.

[67]  [2012] QCATA 60 [12]. 

[68]  Ibid at 5 [11].

[69] Lee v Brisbane City Council (No 2) [2012] QCATA 64, 6 [30].

[70]  Transcript T1-25, line 30 and line 36.

[71]  Reasons [13]-[16].

[72]  Reasons [15].

[73]  Ibid [13].

[74]  [2012] QCATA 64.

[75] Thomas v Attorney-General and Minister for Justice and Minister for Training and Skills [2017] QSC 308.

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Editorial Notes

  • Published Case Name:

    Albert Imbrogno and Jeffrey John Langford v Brisbane City Council

  • Shortened Case Name:

    Imbrogno v Brisbane City Council

  • MNC:

    [2017] QCATA 148

  • Court:

    QCATA

  • Judge(s):

    Senior Member Brown

  • Date:

    20 Dec 2017

Appeal Status

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