Symons v Scenic Rim Regional Council
[2023] QCATA 111
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- Unreported Judgment
- Symons v Scenic Rim Regional Council[2023] QCATA 111
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Symons v Scenic Rim Regional Council[2023] QCATA 111
Symons v Scenic Rim Regional Council[2023] QCATA 111
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Symons v Scenic Rim Regional Council [2023] QCATA 111 |
PARTIES: | Darryl Keith Symons (applicant) v SCenic rim regional council (Council) |
APPLICATION NO/S: | GAR404-22, GAR405-22 and GAR406-22 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 31 August 2023 |
HEARING DATE: | 21 August 2023 |
HEARD AT: | Brisbane |
DECISION OF: | Member Richard Oliver |
ORDERS: |
|
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – animals – dangerous dogs – where unprovoked attack causing physical injury and fear – where identity of the dogs in dispute – where respondent satisfied that the applicant was the owner of the dogs – where menacing dog declarations made – whether the applicant responsible for the dogs wandering onto the street – whether applicant owner of the dogs – whether a dangerous dog declaration should be made on review. Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24 and 66 Animal Management (Cats and Dogs) Act 2008 (Qld), 60, s 89, and s 94 Criminal Code s 7 and Ch V Roy v Brisbane City Council [2019] QCAT 311 Brisbane City Council v Roy [2020] QCATA 147 |
APPEARANCES & REPRESENTATION: | |
Applicant: | Self-represented |
Council: | Mr Dillon of counsel instructed by King & Co |
REASONS FOR DECISION
- [1]On the morning of 22 April 2022, Jane[1] went for a morning jog in the locality where she lives in Beaudesert. As part of her usual jogging route she passes the property owned by the applicant at 106 Brolga Road, Beaudesert. She left her house about 6:10am but had to be home to get the school bus at 6:45am.
- [2]As she was passing the applicant’s property she was unexpectedly attacked by three dogs. This resulted in physical injury, fear and distress from the trauma of the attack. She was assisted during the attack by a passer-by Mr Dunn. The dogs returned to the applicant’s property and she then jogged home and told her mother about the incident. Jane’s mother then reported the attack to the respondent Council.
- [3]An investigation was undertaken by the Council. It was satisfied Jane was the subject of a dog attack and the three dogs that attacked her were Wombat, Reno and Rawhide (“the dogs”). The dogs belonged to the applicant, Mr Symons.
- [4]On 29 June 2022 the Council issued a Proposed Regulated Dog Declaration Notice under s 90 of the Animal Management (Cats and Dogs) Act 2008 (“AMA”) in respect of the dogs proposing to declare them menacing dogs. After considering a response from Mr Symons and then undertaking a further review process the Council, on 11 August 2022, issued a Regulated Dog Declaration Notice in respect of each dog. They were all declared menacing dogs under s 90 of the AMA.
- [5]After receiving the Council’s decision Mr Symons applied to the Tribunal for a review of the decision. The Tribunal’s function in reviewing an administrative decision is to consider the matter afresh on the material filed in the proceeding, and any further evidence, and produce the correct and preferable decision.[2]
Further Background
- [6]Jane has provided a statement setting out in some detail the circumstances of the attack. As she was jogging along the road she heard loud barking and something touching her lower leg near her calf muscle. She slowed her pace and turned around to see what it was and then two of the dogs jumped up at her. As she describes it in her statement:[3]
As I turned around two dogs jumped up at me. They were snarling at me. I could see their teeth and their noses were scrunched up.
When I turned around I could see a third dog close to me on the road behind the other two dogs. It wasn't jumping up at me, but it was barking aggressively at me. I recognise the dogs as the three orangey-brown looking dogs that I see jumping up on the big round hay bales along the fence line of the house on Brolga Rd….
The two dogs kept jumping up at me. I shuffled to the middle of the road and the two dogs moved with me. The two dogs continued to jump up at me and smile. I don't remember exactly where the third dog was at this point in time. I felt scared and stressed by the three dogs. I don't know what to do to make them stop. I thought maybe if I kept moving to the other side of the road I could possibly jump onto a fence to get away from the dogs.
I got across the other side of the road. At about the same time I saw a white ute driving towards me, driving in the opposite direction from the way I was jogging. I saw the ute slow down and the three dogs started to run back to the house with the hay bales.
The ute stopped near me, where I had shuffled onto the grass on the other side of the road. There were two older men in the Ute. I knew one of the men, and his name is Brian.
- [7]The reference to Brian, is Brian Dunn. On the day of the incident Mr Dunn provided a handwritten statement to the Council describing what he observed. He said that as he was driving along the road he witnessed a teenage girl “being attacked by 3 dogs, 2 were biting at her heels and 1 was jumping up trying to bit her face”. He stopped the vehicle to assist her and to ensure she was alright and realised it was Jane. As she walked over to the vehicle, he saw that the dogs “went back through the open gate to the property which they lived”. They then had a discussion about her wellbeing and he offered her a lift home but she decided jog home instead. Mr Dunn also said that as he continued on his way, he noticed the gate though which the dogs had previously gone, was now closed.[4]
- [8]When she got home, Jane told her mother, about the incident with the dogs. Jane's mother then made contact with the Council to lodge a formal complaint about the incident. The following day she took photos of the injury to Jane’s leg which are included in the Council’s statement of reasons.[5] The photos clearly demonstrate bodily injury to Jane’s leg.
- [9]The Council then took steps to investigate the complaint and a ranger employed by the Council, Mr Patten, attended the applicant’s premises later that morning. The circumstances of the complaint were explained to Mr Symons and during the course of the conversation, which is recorded,[6] Mr Symons told Mr Patten that he was struggling with short term memory and that late the afternoon before he had forgotten to shut the front gate to the property. He then went onto say that he had shut the gate at about 6am that morning, that is the morning of the attack. He conceded that there was no excuse for leaving the gate open. There was further discussion about previous incidents involving his dogs wandering from the property.
Conclusion about the attack
- [10]At the commencement of the hearing, and having regard to the above evidence which had been provided to Mr Symons, he was invited to inform the Tribunal whether he conceded that Jane had been harassed by three dogs in the manner described by her and witnessed by Mr Dunn. He declined to do so, as he said he did not see the incident.
- [11]This was raised with him because as part of the review process, in coming to the correct and preferable decision, the Tribunal must firstly decide whether in fact the attack occurred as described by Jane, and secondly, whether it was Mr Symons’ dogs that were responsible for the attack.
- [12]As for the attack the evidence provided by Jane, Jane's mother and Mr Dunn leaves no doubt in my mind that the attack did occur and I so find. To find to the contrary would be perverse in the face of this uncontested evidence.
Identity of the dogs
- [13]That then leaves the question as to whether it was Mr Symons dogs that were involved in the attack. The dogs were at the Mr Symons property, indeed he confirmed they were there the day before the attack and the day of the investigation. Jane recognised the dogs as being the same as those she had seen on the bales of hay inside the boundary fence of 106 Brolga St.
- [14]Mr Symons disputes that the dogs were the culprits in the attack. He basis that on the fact, contrary to what he told Mr Patten, that the dogs were locked up at his premises all night. If one were to accept the information he gave to Mr Patten at the first interview, it would be reasonable to conclude, on the balance of probabilities, that the dogs were on the premises, and escaped through the front gate sometime prior to the attack because the gate had been left open all night.
- [15]However, as the investigation progressed, Mr Symons began to resile from his initial statement about leaving the gate open, but not that his dogs were responsible for the attack. In a submission to the Council for its meeting of 20 May 2022 he said the following:
On the early evening Thursday 21st April 2022 I secured my working dogs in their enclosures, opened the gate of my house yard and drove my ute to my house driveway. There I loaded several drums into my ute and drove back through the house yard to store the drums in a shed outside the rear of the house yard.
After unloading the drums I came back through the rear gate of the house yard and parked the ute. I closed the rear gate and may not have closed the front gate of the hour yard (which is always my procedure to close all gates).
On Friday morning at 0610 hours I was awoken by my working dogs outside my bedroom windows. I immediately got up and saw the front gates of the house yard were open which I may have left open the previous evening. The working dogs were then secured in the house yard and front gates latched.[7]
- [16]There was a further variation on the theme of whether My Symons left the gate open in his email letter to the Council of 16 July 2022. In that email he asserts that he shut the gate the night before because it was part of his usual night duties when in the fire service, that is, to secure the perimeter fencing of the fire station.
This is just one of the reasons why I would have closed the gates on the evening of Thursday 21/04/2022.
My 3 working dogs were constantly with me in the house all through that night only going out occasionally. They were never away for an extended period of time, like if they were ‘wandering at large” out on the road reserve. Sometimes when they went out for a bark they never went off my property as the gates were shut!
It was only in the early hours of the morning that my 3 working dogs were “wandering at large” (unbeknown to me). Every time that I woke during the night my 3 working dogs were asleep besides me.
So the burning question is who opened the gates in the early hours of Friday morning 22/04/2022
- [17]Then when cross-examined about his inconsistent statements about shutting the front gate, Mr Symons became more emphatic that the gate was closed. His evidence was that after his evening meal he took the wheelie bin out to the road and shut the gate, presumably realising it was open. Asked why he told Mr Patten he had forgotten to close the gate he said words to the effect that he was “trying to soften this down again”. His final position, it seems, was that between about 9pm on 21 April 2022 and 6:10am on 22 April 2022, some unknown person, who had something against Mr Symons, opened the gate. His precision about the timing of shutting the gate is also self-serving when it was hearing the dogs that caused him to get up and close the gate. It seems to suggest this was before the attack given Jane's evidence about when she went for her run.
- [18]The best evidence in any contested matter is the evidence about what occurred given closest to the event when matters are fresh in ones mind. Mr Symons statement to Mr Patten about leaving the gate open was an open and frank statement devoid of any qualification or uncertainty suggesting he “may” have left them open.
- [19]Mr Symons obfuscation about this issue, and his clear and unqualified statements to Mr Patten, leaves me in no doubt that the gate was left open, remained open all night and only closed after the dogs returned to his property after the attack on Jane. Having accepted this to be the case, there is again no doubt, and I find as a fact that the three dogs that attacked Jane were Wombat, Reno and Rawhide.
Conclusion about ownership of the attacking dogs
- [20]I should also say that in the end, it really doesn’t matter whether Mr Symons left the gate open or not because there is ample evidence to conclude that the dogs were Mr Symons dogs. That is the direct evidence of Jane identifying the dogs and from Mr Dunn who saw the dogs go through the gate.
- [21]Importantly, Mr Symons does not deny, nor could he with any credibility, that it was his dogs that attacked Jane. He has effectively put the Council to proof.
- [22]In summary, in terms of the issues of fact to be decided in this case, I find that Jane was the subject of a dog attack. I also find the dogs that attacked her were Mr Symons’ dogs, Wombat, Reno and Rawhide.
Legislation
- [23]The Council can declare a dog dangerous in certain circumstances. Section 89 of the Act relevantly provides that:
- (1)Any local government may, by complying with the requirements of this part –
- (a)declare a particular dog to be a declared dangerous dog (a dangerous dog declaration); or
- (b)declare a particular dog to be a declared menacing dog (a menacing dog declaration); or
…
- (2)A dangerous dog declaration may be made for a dog only if the dog:
- (a)has seriously attacked, or acted in a way that caused fear to, a person or another animal; or
- (b)may in the opinion of an authorised person having regard to the way the dog has behaved towards a person or other animal, seriously attacked, or acted in a way that causes fear to, the person or animal.
- (3)A menacing dog declaration may be made for a dog only if a ground mentioned in subsection (2) exists for the dog except that the attack was not serious.
…
- (7)In this section seriously attacked means to attack in a way causing bodily harm, grievous bodily harm or death.
- [24]Upon undertaking the investigation and considering the response from the issuing of the Notice, if the Council considers that the requirements of s 89 have been satisfied, it can then make a declaration under s 94. That section provides that:
- (1)The local government must consider any written representations and evidence accompanying them within the period stated in the proposed declaration notice.
- (2)If after complying with subsection (1), the local government is satisfied that the relevant ground under section 89 still exists, it must[8] make the regulated dog declaration for the dog.
- [25]The application of the Animal Management Act (Cats and Dogs) Act 2008 was discussed at some length Roy v Brisbane City Council.[9] In that case I considered the role of the Tribunal in circumstances where there was no dispute about the attack or the identity of the dog that did the attacking. The comments there are apposite here now that I have made a finding of fact that Jane was attacked by the dogs, and that those dogs belonged to Mr Symons.
The Council submits that because the bite resulted in bodily harm within the definition of serious attack, s 89(2)(a) applies and therefore there is no alternative under s 94(2) but to declare the dog a dangerous dog. It is submitted by the Council that once it has considered the representations after giving notice of the proposed declaration, and it is satisfied that the relevant ground still exists, it must make the regulated dog declaration for the dog under s 94(2) of the Act.
This submission in effect means that the Council has no choice, where it is admitted that the dog did cause bodily harm and irrespective of the circumstances or what is contained in the representations in response to the Notice, but make the proposed declaration. Similarly, if the legislation mandates that the Council must make the declaration in these circumstances, then it follows that this Tribunal must also make the declaration and the review process, both internally and before this Tribunal, is pointless.
- [26]The review here could not be said to be pointless because the Tribunal had to make a finding about whether the attacking dogs were Mr Symons’ dogs. However, once that determination is made, and it is consistent with the Council’s decision, I, like the decision maker on behalf of the Council, must make the declaration. Therefore, it follows that the decision of the Council will be confirmed.
- [27]There is a slight twist though to this case. The Council submits that it may be open on a construction of the legislation to upgrade the Council’s decision from one of a menacing dog declaration to a dangerous dog declaration.
- [28]The decision under review in this case is the Council’s final decision after the internal review. Section 94(2) mandates that if the relevant ground under s 89(2) still exists then the decision maker “must” make the regulated dog declaration for the dog. A regulated dog is
- a declared dangerous dog; or
- a declared menacing dog; or
- a restricted dog[10]
- [29]In this case as the ground for the regulated dog declaration existed under s 94(2) and therefore the regulated dog declaration must be made. What the section does not mandate, is the type of regulated dog declaration that must be made. That is for the final decision maker. That equally applies to the Tribunal making the correct and preferable decision.
- [30]The decision maker here concluded that the dogs be categorised as menacing dogs. One of the difficulties facing the decision maker is the role of each dog in the attack. Which dog was responsible for the physical injury causing bodily harm? However, each of the dogs caused “fear” to Jane. She felt “scared and stressed” and tried to get away and moved to the other side of the road. During this time the dogs still, in effect, had her bailed up. Each of the dogs could have lunged at her at any time. It would seem that it was the intervention of Mr Dunn which caused, or influenced the dogs to desist.
- [31]The relevance of all of this is that, hypothetically, if another person was on the street and the dogs got out of the yard, it is reasonable to predict that they would behave in a similar fashion. That being the case they are a danger to the public and the AMA has mechanisms to ensure that this does not occur.
- [32]As the dogs acted as a pack the Council submits that the consideration of a dangerous dog declaration could be approached adopting the principles of criminal law as contained s 7 of the Criminal Code. That is, the dogs embarked on a joint enterprise and therefore each one should be responsible of the actions of the other. Although in general principle that might be a useful analogy, I am of the view it could not be applied strictly because s 7 also contemplates the notion of criminal responsibility and the includes the exculpatory provisions contained Chapter V of the Code, which could have no application here. A common sense approach will suffice and it is the behaviour of the dogs in each individual case which dictates the outcome in relation to the application of the AMA.
- [33]There is no doubt the behaviour of the dogs was certainly menacing. However, it was a prolonged attack and as a pack they caused significant fear and distress to Jane. She was in situation where she had no idea whether one of the dogs would lunge for her and bite and cause more harm. She tried to remove herself from the situation by crossing the road but to no avail. Their behaviour could be categorised as “dangerous” even though each acted differently, one dog even hanging back, as it were, and barking, which might have encouraged the other dogs. She was at a loss to know what to do until Mr Dunn arrived. For a teenage individual, out for morning exercise before school, to be confronted with this situation and not knowing the outcome, is unacceptable. It is the very of animal behaviour to which the provisions of the AMA are directed.
- [34]Because of both the physical injury causing bodily harm, and the fear caused to Jane the correct and preferable decision is that all three dogs, Wombat, Reno and Rawhide be declared dangerous dogs.
- [35]There is one other matter, the Tribunal made an order declaring the witness Jane as a special witness as she is a minor under the age of 18 and did not want to confront the applicant in the hearing room. She gave evidence from a separate room at the tribunal by audio link. An application was filed seeking an order that her identity not be disclosed. I am of the view that given her age, and the circumstances of the incident, a non-publication order pursuant to s 66 of the QCAT Act is appropriate to protect her identity.
- [36]Pursuant to s 24 of the Queensland Civil and Administrative Tribunal Act, I propose to set aside the decision of the Council making the menacing dog declarations and substitute that the decision with dangerous dog declarations.
Footnotes
[1]A pseudonym for the young girl who was attacked by the dogs whose name has been de-identified. Refer to [32] hereof.
[2] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20.
[3] Exhibit Statement of Jane dated 28 April 2023
[4] Exhibit 1 – Statement of Reasons page 45
[5] Also see Exhibit 5
[6] Included in the statement of reasons and played during the hearing.
[7] Exhibit 1 page 39
[8] My emphasis
[9] [2019] QCAT 311 and upheld on appeal in Brisbane City Council v Roy [2020] QCATA 147 (save for the menacing dog declaration).
[10] AMA s 60