Do v Brisbane City Council[2021] QCATA 99

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   On 25 May 2020, the Tribunal confirmed the decision of the respondent to declare ‘Jay-Jay’, a large Rhodesian Ridgeback, a dangerous dog pursuant to s 89 of the Animal Management (Cats and Dogs) Act 2008 (Qld). The applicant, the owner of Jay-Jay, now appeals that decision. The applicant on appeal was also the applicant at first instance.

1. [2]
   In the decision at first instance, it was found that on 26 November 2018 Jay-Jay attacked a much smaller dog, a toy poodle named ‘Fudge’. While Fudge was being walked on a leash on the footpath, Jay-Jay ran out through the open gate of the property of its owner, seized Fudge by the neck and shook it. After releasing Fudge, Jay-Jay repeated that action. Fudge suffered serious injuries, requiring extensive veterinary attention and surgery. Those facts were not and are not in dispute.^[1] At the hearing at first instance, the applicant acknowledged that there was no question as to what happened in relation to the attack and that her entire case was predicated on the argument that prior provocation by Fudge should be taken into account.^[2]  

1. [3]
   The grounds of appeal may be summarised as follows (ground 1 simply states that the appeal is on questions of both fact and law):

1. (a)
   There was a denial of procedural fairness, in that the Tribunal did not allow the applicant to show CCTV footage of what occurred at the time of the attack (Ground 2).
2. (b)
   The representative for the respondent ‘cautioned’ the Member of the Tribunal against setting aside the decision of the decision-maker, giving rise to a breach of natural justice (ground 3).
3. (c)
   In the reasons for the decision no reference was made or consideration given to a video recording that was said to show that the owner of Fudge was uncooperative, intimidating and an irresponsible pet owner (Ground 4).
4. (d)
   Errors of fact were made by the Tribunal at first instance, or there were discrepancies in the evidence of witnesses, or undue weight was given to particular evidence (Grounds 1, 5 to 8 and 10 to 18).
5. (e)
   The Tribunal failed to take steps to establish the qualification of Dr Alisa Voss, who provided a written letter on behalf of the applicant in relation to animal behaviour (Ground 9).

1. [4]
   Some of the grounds of appeal raise questions of law: grounds 2 and 3 (denial of procedural fairness), ground 4 (adequacy of reasons or failure to take account or relevant considerations), and ground 9 (failure of the Tribunal to make inquiries). The remaining grounds raise questions of fact or mixed law and fact.

1. [5]
   By s 142(3)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), an appeal on a question of fact or mixed law and fact requires the leave of the Tribunal. By s 147(2) of the QCAT Act, if leave is given, the appeal must be decided by way of rehearing, with or without the hearing of evidence additional to that before the Tribunal at first instance. The question of whether leave should be given is addressed below. The issue of fresh evidence is first discussed and is considered on the assumption that leave were given and the matter proceeded to a rehearing pursuant to s 147 of the QCAT Act.

Applications to file fresh evidence

1. [6]
   There were separate applications by the appellant and respondent to file fresh evidence in the appeal. On the part of the respondent, the fresh evidence is in the form of affidavits sworn by an officer of the respondent dated 20 and 27 of January 2021, the effect of which is to confirm that the applicant is now fully compliant with the conditions for keeping a ‘Regulated and Declared Dangerous Dog’. On 3 February 2021, the applicant advised the Tribunal that she did not wish to make any submissions in response to the application made by the respondent.

1. [7]
   The applicant seeks leave to file the following evidence: CCTV footage showing JayJay attacking Fudge on 26 November 2018 and, 12 days earlier, Fudge running at Jay-Jay and other dogs held on a lead by the applicant; the qualifications of the witness Dr Alisa Voss (re appeal ground 9); evidence said to reflect on the witness Naomi Wehl and her dog ‘Pearl’; email correspondence said to show the difficulty and stress involved in living next door to the owner of Fudge, and a USB recording of a conversation between the applicant’s husband and the owner of Fudge.

1. [8]
   On 19 March 2021, the respondent filed submissions opposing the applicant’s application for leave to file fresh evidence and, on 7 April 2021, the applicant filed submissions in reply.

1. [9]
   Section 146(c)(i) of the QCAT Act allows for the admission of additional evidence ‘as directed by the appeal tribunal’. The power to receive further evidence under the then Rules of the Supreme Court was considered in Clarke v Japan Machines (Australia) Pty Ltd.^[3] Those Rules provided that further evidence ‘shall not be admitted except on special grounds’. As to what constituted ‘special grounds’, Thomas J, with whom Campbell CJ and Andrews SPJ agreed, stated:^[4]

First it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive: third, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.

1. [10]
   There is no requirement of ‘special grounds’ under the QCAT Act, nor is there any other express limitation on the exercise of the discretion to allow further evidence. However, s 146(c)(i) of the QCAT Act should be read consistently with the objects of the Act, including, at s 3(b), the object of having ‘the tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick’. Consistent with that object, factors such as those considered in Clarke might be taken into account.

1. [11]
   The applications to file additional evidence should be refused. While the material of the respondent showing that the applicant is now fully compliant with the conditions for keeping a ‘Regulated Declared Dangerous Dog’ is noteworthy, it does not go to the question of whether or not the Tribunal should have upheld the decision to declare Jay-Jay a dangerous dog.

1. [12]
   The fresh evidence sought to be filed by the applicant is either not relevant or simply confirms undisputed evidence that was before the Tribunal, including the fact of the attack and the lack of any direct provocation.^[5] Equally, the footage of Fudge running at Jay-Jay and other of the applicant’s dogs twelve days prior to the attack, relates to evidence acknowledged by the Tribunal.^[6] The Tribunal rejected as lacking credibility the claim that the prior conduct of Fudge or its owner constituted provocation for the attack on 26 November 2018. Also, the evidence of any discord between the applicant and the owner of Fudge and any views expressed by a separate neighbour, or the behaviour of that neighbour in response to the attack, are irrelevant. None of it alters the fact of Jay-Jay running through the open gate of the property of its owner and effecting a serious attack on Fudge, or adds materially to the evidence of the claimed provocation.

1. [13]
   By s 89(2) of the Act, the respondent may make a dangerous dog declaration if the dog ‘has seriously attacked’ a person or another animal. By s 89(7) ‘seriously attack’ means ‘to attack in a way causing bodily harm, grievously bodily harm or death’. That such harm was caused is not in dispute. If it is proposed to make a dangerous dog declaration, notice of the proposal must be given to the owner of the dog.^[7] By s 94(2), once any response made by the owner is considered, if the respondent is satisfied that the s 89 ground still exists, a regulated dog declaration must be made.

1. [14]
   The applications to adduce fresh evidence are refused.

Whether there should be leave to appeal

1. [15]
   As noted above, leave to appeal is required in relation to grounds 1 (to the extent that it states that the appeal includes an appeal on questions of fact), 5 to 8 and 10 to 18. The Appeal Tribunal in Harrison and Anor v Meehan^[8] set out the criteria for determining whether leave should be granted, the Appeal Tribunal said (citations omitted):^[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; Is there a reasonable prospect that the applicant will obtain substantive relief; Is leave necessary to correct a substantial injustice to the applicant caused by some error; 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;

1. [16]
   Leave will not be granted where a party simply desires to reargue the case on existing or additional evidence.^[10] A clear purpose of the requirement for leave is to prevent any attempt to simply conduct a retrial on the merits of the case.^[11] Also, the Appeal Tribunal will not readily interfere with findings of fact of the tribunal at first instance, unless they are demonstrated to be wrong by ‘incontrovertible facts or uncontested testimony’, or they are ‘glaringly improbable’ or ‘contrary to compelling inferences.^[12]

1. [17]
   For the reasons that follow, leave to appeal on grounds 1, 5 to 8 and 10 to 18 should be refused.

1. [18]
   As is noted above, the primary question to be considered is whether Jay-Jay ‘seriously attacked’ Fudge. As is also noted above, that is not in dispute. None of the matters arising in grounds 1, 5 to 8 or 10-18 alter that fact, or materially impact the decision of the Tribunal at first instance.

1. [19]
   Ground 5 is that the Tribunal indicated the incorrect body weight of Jay-Jay. It remains that Jay-Jay was a much larger dog than Fudge and undertook the attack. Grounds 6, 7 and 10 refer to an unrelated incident occurring on 11 September 2019, several months after the attack in question, relating to the conduct of Jay-Jay and involving a neighbour Naomi Wehl and her dog ‘Pearl’. In the reasons at first instance it is stated:^[13]

The evidence of Ms Wehl raises a strong allegation that the dog Jay-Jay does display aggressive behaviour towards other dogs and people, other than the neighbour and Fudge. I consider that Ms Do was downplaying the severity of the incident, which occurred on 11 September 2019, in her evidence.

1. [20]
   The applicant questions that evidence. It remains that it was open to the Tribunal to accept the evidence of the neighbour and, in any event, it related to events occurring months after the attack and was not central to the finding of the Tribunal at first instance. The fact of the attack and its effect on Fudge was not in dispute, and the Tribunal rejected evidence of provocation arising prior to the attack.

1. [21]
   Ground 8 refers to the finding of the Tribunal at first instance that there was no direct provocation and that immediately prior to the attack ‘Fudge was simply being walked on a lead on the footpath past the open gate’ of the applicant’s house.^[14] It is then said by the applicant that there was evidence that initially Fudge was without a lead and that its owner ‘only loosely placed the lead on Fudge on her way back home’. It is also stated that after the attack Jay-Jay returned to its property ‘without any interference from anyone’. These assertions relate to the claimed history of provocation, which was rejected by the Tribunal. They do not alter the fact of the attack or its severity.

1. [22]
   At Ground 10, the applicant refers to an affidavit of a neighbour that indicated aggressive behaviour by Jay-Jay towards other dogs, and states: ‘How can one give weight to an affidavit that is highly opinionated and contains incorrect facts’. It remains that the applicant gave evidence before the Tribunal and the Tribunal was entitled to draw conclusions on the basis of that and other evidence before the Tribunal.^[15] In any event, the issue was not central to the decision of the Tribunal, which, in its reasons, placed emphasis on the fact of the attack on 26 November 2018 and the lack of any relevant provocation.^[16]

1. [23]
   Grounds 11 and 12 refer to the earlier behaviour of Fudge, which was said to be aggressive and a nuisance. This evidence was considered by the Tribunal at first instance  and it was noted that ‘there was no direct provocation of any sort’ by Fudge.^[17] The Tribunal referred to Lee v Brisbane City Council,^[18] where Holmes JA observed that ‘hostile behaviour by the animal which is the victim may be relevant’, giving as an example where a dog is acting in defending itself.^[19] Reference was also made by the Tribunal at first instance to other decisions, where direct provocation was raised as potentially relevant.^[20] In addition to finding that the there was no direct provocation, the Tribunal found that the evidence of indirect provocation was lacking in credibility.^[21] That conclusion was open on the evidence.

1. [24]
   Ground 13 relies on an interlocutory decision of the Tribunal to permit a stay of the respondents decision in the present case, pending the hearing of the application to review. However, the granting of a stay is not a final determination of any questions of fact. That is a matter for the Tribunal conducting the hearing. Ground 14 refers to an investigation by the respondent’s rapid response team following the attack and an indication given by the response team that fencing was secure and a consequent decision not to seize Jay-Jay that evening. Again, that outcome does not impact any decision to be made by the Tribunal in this matter.

1. [25]
   Grounds 15 and 16 assert that no weight was given to what was said to be the continuation of the excessive barking of Fudge and the provocative behaviour of the owner of Fudge after 26 November 2018, including allowing the dog to wander at large and/or walk without a lead in front of the applicant’s property. As is noted above, the Tribunal did consider the behaviour of Fudge, to the extent that it might have been relevant to the decision of the Tribunal. It was concluded that there was no direct provocation and that the declaration of Jay-Jay as a dangerous dog was appropriate. That conclusion was open on the evidence before the Tribunal.

1. [26]
   Ground 17 refers to the conclusion of the Tribunal at first instance that the applicant ‘has adduced no credible evidence supporting her contention that Jay-Jay only acted defensively as a result of a long history of provocation’.^[22] The applicant then refers to other decisions where a declaration was set aside in the absence of a behavioural report. Those cases rested on their own facts and conclusions drawn. In the present case, the Tribunal concluded: ‘I do not accept that the dog Jay-Jay was provoked to attack Fudge by the history of previous conflict between its owner and the neighbour’. That conclusion was open on the evidence.

1. [27]
   Ground 18 refers to the decision in Acaroglu v Moreton Bay Regional Council,^[23] which cited the decision in the Victorian case of Willis v Hume CC^[24] to the effect that the consequence of declaring a dog to be a dangerous dog is significant. The Victorian case also listed some criteria relevant to the making of a declaration, including the conduct of the owner, the circumstances of the attack, and the apparent nature of the dog. Other than in relation to the other grounds of appeal listed above, it is not clear how it is said that proper consideration or weight was not given to factors relevant to the decision of the Tribunal. 

1. [28]
   Grounds of appeal 1, 5 to 7 and 10 to 18 are without merit. There is no reasonably arguable case of error on the part of the Tribunal at first instance. Nor is leave necessary to correct a substantial injustice to the applicant caused by some error, or a question of general importance in terms as set out in Harrison. Leave to appeal on those grounds should be refused.

Appeal on questions of law

1. [29]
   As noted at [4] above, grounds 2, 3, 4 and 9 raise questions of law. Each of those grounds is addressed in turn

1. [30]
   Ground 2 of the grounds of appeal argues a breach of procedural fairness, in that the Tribunal at first instance denied the applicant an opportunity to show CCTV footage of what occurred on 26 November 2018, the date of the attack.^[25] The footage was not provided to the respondent or filed in the Tribunal prior to the hearing.^[26] The applicant said that she did not do so as she was of the view that if the owner of Fudge had the opportunity to view the footage it might have altered her answers to questions in crossexamination.^[27]

1. [31]
   As noted by the Tribunal, directions had been issued well before the hearing requiring the applicant to file in the Tribunal any statements of evidence to be relied upon.^[28] The explanation provided by the applicant for not filing the CTTV footage is unsatisfactory. Arguably, it denies the respondent procedural fairness in not having the opportunity to provide evidence in response. An object of the QCAT Act is to have the Tribunal ‘deal with matters in a way that is accessible, fair, just, economical, informal and quick’. That is not facilitated by the production of ‘surprise’ evidence, which might require an adjournment to enable a response. 

1. [32]
   There has been no denial of procedural fairness. The applicant knew of the CCTV footage and for her own reasons elected not to provide a copy to the respondent or to file it in the Tribunal. In any event, as acknowledged by the applicant at the hearing at first instance, in her statement she had described everything that could be seen in the CCTV footage.^[29]

1. [33]
   Ground 3 also rests on a claimed breach of procedural fairness, in that at the conclusion of the telephone hearing the solicitor for the respondent ‘cautioned’ the Tribunal ‘in setting aside the decision to declare Jay-Jay a dangerous dog’. It is said that this ‘is not only intimidating, but also a breach of natural justice’. In fact, in the transcript passage in question the solicitor for the respondent was making submissions in relation to cases relied upon by the applicant. With reference to one of those cases, it was stated: ‘I would ask that the tribunal be cautious with that decision’.^[30] There has been no breach of procedural fairness. It is standard for parties to make submissions in relation to the applicability or relevance of any given case law.

1. [34]
   Ground 4 of the appeal is that there was a failure to provide adequate reasons or a failure to take account of relevant considerations. It is said that the Tribunal made no mention of or gave consideration to a recording of a conversation that took place between the applicant’s husband and the owner of Fudge approximately four months prior to the attack. It is said that the recording shows the bullying and lack of cooperation by the owner of Fudge. While no express reference was made in the reasons for the decision to that recording, the Tribunal did refer to the applicant’s submission that the ‘extensive and ongoing provocative behaviour’ from the neighbour and Fudge for several months prior to the attack is relevant and should be taken into consideration.^[31] The Tribunal at first instance, with reference to the case law, made a distinction between immediate provocation and the sort of provocation alleged by the applicant and stated that the applicant:^[32]

has adduced no credible evidence supporting her contention that Jay-Jay only acted defensively as a result of a long history of provocation. I do not accept that the dog Jay-Jay was provoked to attack Fudge by the history of previous conflict between its owner and the neighbour.

1. [35]
   It is evident that the history of conflict was taken into account. In relation to the adequacy of reasons, in Applicant WAEE v Minister for Immigration and Indigenous Affairs,^[33] the Full court of the Federal Court Stated: ‘It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons’. It is evident that the applicant’s evidence in relation to provocation was considered but was rejected by the Tribunal. This ground of appeal should be dismissed.

1. [36]
   Ground 9 of the grounds of appeal is that the Tribunal failed to take steps to establish the qualifications of Dr Alisa Voss, who provided a written letter on behalf of the applicant in relation to animal behaviour. In her statement, with reference to what was said to be aggression and provocation by Fudge, including when Fudge had run and barked at Jay-Jay and other of the applicants’ dogs 12 days earlier, Dr Voss states that ‘Jay-Jay may have been exhibiting a small amount of defensive aggression’. In the Tribunal at first instance it was stated that the basis of Dr Voss’ qualification was not indicated, other than ‘the curious post-nominal of (DAnimSt), which is not a familiar qualification’.

1. [37]
   As noted in Minister for Immigration and Citizenship v SZIAI:^[34]

Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a "duty to inquire", that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.

1. [38]
   Dr Voss was not called upon to give evidence.^[35] Her qualifications were not a critical fact such that any failure on the part of the Tribunal to seek clarity gave rise to jurisdictional error. It is noted that the Tribunal at first instance found her evidence to be ‘confused and unconvincing’ and considered:^[36]

her use of the expression ‘a small amount of defensive aggression’ in this matter, where the much larger dog Jay-Jay has twice seized the much smaller dog by the throat, and has inflicted very serious injuries on the much smaller dog, to be minimising a very serious attack.

1. [39]
   This ground of appeal also is dismissed.

1. [40]
   In consideration of the above, the final orders are as follows:

1. The applications to file fresh evidence are refused.
2. Leave to appeal in relation to grounds of appeal 1, 5 to 8 and 10 to 18 is refused.
3. The appeal in relation to grounds of appeal 2, 3, 4 and 9 is dismissed.