Fry v West[2003] QSC 220

SUPREME COURT OF QUEENSLAND

[1] This is an application pursuant to s 20 of the Judicial Review Act 1991 (“the Act”) for a statutory order of review in relation to two decisions.  The first decision is that of the second respondent on 31 July 2002 to issue Dangerous Dog Orders B328 and B329 and the second decision that of the second and third respondents on 27 August 2002 to confirm these orders.

[2] Dangerous Dog Orders are issued under Local Law No. 12 (Control of Animals) (“the law”).

[3] Under s 57(1) of the law, the Chief Executive Officer may issue a dangerous dog order to any person who keeps a dog which, in the opinion of the Council, is dangerous. Pursuant to s 57(2) of the law any dangerous dog order issued must address that person, identify the document as a dangerous dog order, and the relevant provision of the local law under which it is issued, set out the facts and circumstances forming the basis of its opinion that the dog is dangerous and give the keeper of the dog 14 days after the date the order issues to give the Council “written reasons why the dog should not be deemed dangerous”.  The same s 57 provides that the dog order issued be signed by the Chief Executive Office (“CEO”).  After the allowed 14 day period the CEO is then to consider any written reasons and to decide whether the dangerous dog order in question should be confirmed or withdrawn.  The CEO is then to notify the keeper of the relevant dog or dogs of the decision and if that decision is that the dangerous dog order is to be confirmed, the CEO is to state that he or she has considered any written reasons provided in making that decision.

[4] If the order is confirmed then a notice, warning of the keeping of a dangerous dog must be continuously displayed on the land; the dog must be securely muzzled in any public place against biting and is to be effectively controlled.  The annual registration fee for any dog the subject of such an order is increased.

The factual background

[5] On Friday, 22 March 2002 the applicant’s two dogs (a male Rottweiler and a female Rottweiler cattle dog crossbred) and an Alsatian dog were involved in a fight.  The Alsatian dog required veterinary facial surgery as a result.[1]  In response to a complaint about this dog fight, the Council’s then Animal Control Officer, a Mr. West, visited the owner on 26 March 2003 with the intention of completing, in consultation with her, two forms, a Dog Attack Form and a Dog Attack Assessment Form.[2]

[6] Mr West left the applicant’s premises before Questions 3 and 4 of the Assessment for either dog had been completed.[3]  Question 3 asked whether the dog was desexed.  Question 4 sought to know whether the owner was willing to have the dog attend a dog obedience school.  The Animal Control Officer already knew the answer to Question 3 for this female dog Jessie and it attracted no negative rating.  The applicant had given no answer in respect of these questions.  In respect of the female dog, the Animal Control Officer gave Question 4 the points listed on his Dog Attack Assessment, namely, 10.  With respect to the male dog, he gave 10 points each to Questions 3 and 4.  Mr Phipps, the second respondent, stated that if the owner refused to answer a question on these topics it was Council policy to record the answer as a negative.[4]  His evidence is contained in the following passage:-

“It’s a practice.  So if an owner refuses to answer questions you score them at the highest negative level? – This - this form is a guide to help an Animal Control Officer make a decision.  It is not a form that is – comes out of any legislation or anything like that.  It’s just an internal form for Council to try to make up a – some sort of guide for that office and which way you should go with it.  It’s a – it’s an assessment form but it has no bearing in – in - out of the local law or anything like that.

It has no statutory or legislative authority? – None whatsoever.

But there must be some policy that led to it being drawn up? – It’s just a process that we’ve developed within that unit… over the years to - with experienced officers.”

[7] Mr. West, the first respondent, could not recall having any discussion with Mr Phipps to advise that the information contained in the assessment form was inaccurate and was based on that practice.[5]

[8] A further issue arose with respect to the assessment form.  Mr West believed that he had no discretion as to the number of points he could assign to particular questions.  For example, to the question whether the animal appeared to be aggressive, Mr West believed if he answered in the affirmative he was required to assign 10 points to that question regardless of the level of the dog’s aggression.  However Mr Phipps believed that the officer would make a score relative to the behaviour of the animal.  He said:- 

“ And you would say that the person could score that out of – out of 10, not necessarily at 10? – Yes.  Out of 10.  Could have been scored at …

Could be 7 or 8 or 5? – Yes – or five? Thankyou.

Is that made clear to the officers, that they have a discretion to? – I believe so, sir.”[6]

[9] The applicant claims that Mr West’s reports were false and that Mr Phipps thus improperly relied upon them in that he took account of reports he knew to be false in deciding to issue and to confirm the Orders.

[10] Mr West subsequently recommended to the Council’s Manager of Environmental Assessment that a Dangerous Dog Order in respect of each dog be issued.  That occurred on 27 March 2002, but both orders were withdrawn on 27 July 2002.  That same day, however, two new Dangerous Dog Orders Numbers B328 and B329 were issued.  It is these orders which are the subject of this application.

[11] The applicant sought a reconsideration of these orders on 9 August 2002 and on 21 August met with two Council officers to discuss the matter.  On 3 September 2002 the Orders were confirmed.

[12] The applicant seeks a review of those decisions on the following grounds:-

1. That a breach of the rules of natural justice has happened in relation to the making of the decision;

2. That procedures that are required by law to be observed in relation to the making of the decision have not been observed;

3. That the making of the decision was an improper exercise of the power conferred by s 57 of the Local Law in that the second respondent –

(a) took into account an irrelevant consideration;

(b) failed to take into account a relevant consideration;

(c) exercised the power in accordance with the rule or policy without regards to the merits of the case;

(d) exercised the power in such an unreasonable way that no reasonable person could have so exercised the power;

(e) exercised the power in a way that constitutes an abuse of the power.

4. That the decision involved an error of law.

5. That there was no evidence or other material to justify the conduct or the making of the decision.

Was there a breach of the rules of natural justice?

[13] This is a permissible ground on which to base an application for a review of a decision (Judicial Review Act s 20(2)(a)).   The applicant invokes, in particular, the right to be heard, which is one of the rules of natural justice.  She has cited the Federal Court which, in Dixon v Commonwealth (1981) 55 FLR 34 at 41, declared that:

“…the obligation to extend…[an applicant] the opportunity of being heard will involve ensuring that he [she] is given the opportunity of ascertaining the relevant issues and being informed of the nature and content of the material which is being considered against him [her]”.

On the evidence I find that, whilst the Animal Control Officer did not visit the applicant without notice as she claims, she was informed that there had been a complaint that her dogs had been out on the street and had attacked another dog.

[14] It is not in issue that, during the Animal Control Officer’s visit, the applicant was not given access to the two witness statements constituting this complaint and that she was obliged to pursue a somewhat protracted process of extracting the information in these witness statements from Council records under Freedom of Information legislation. 

[15] However, Council has not taken any action on the original orders, they having been withdrawn on 27 July 2002 because “the specified procedure was not followed.” [7] Thus it is not these orders which are the subject of this application.  I consider then that, whilst Council’s treatment of her justifiable requests for further information was reprehensibly tardy, if not totally unresponsive, it is not relevant to pursue the matter of the witness statements not having been sighted before the initial orders were issued.  When the Dangerous Dog Orders (“the Orders”), which are the subject of this application (Nos B328 and B329), were issued by Council the applicant had been able to ascertain the relevant issues and the nature and content of the material being considered against her.

[16] I likewise note that, whilst she was not provided with a copy of the law during Mr West’s initial visit, the relevant law was attached to the newly issued orders.  Thus I do not consider that the issue, of not having been given a copy of the relevant By-Law at the initial visit of the Animal Control Officer, is of any relevance to any question as to whether there had been a breach of the rules of natural justice in respect of Dangerous Dog Orders Nos. B328 and B329.

[17] After the issuing of the new Orders, a further meeting was held at the Council’s  office to discuss the case the applicant had presented for the reconsideration of the Orders. There was conflicting evidence as to who requested this meeting to be held and who determined the basis upon which it was held, but I am satisfied that it was initiated with a view to determining whether the re-issued Dangerous Dog Orders should be confirmed or not.   

[18] I find, in respect of the Orders, that no breach of the rules of natural justice occurred in relation to the decision to issue Dangerous Dog Orders B328 and B329.  Indeed, arguably, the Council had done more than Local Law No. 12 s 57 required to hear Mrs Fry on the matter.  It was not required to conduct any further inquiry beyond that made by Mr West, but it did do so.  As in The State of South Australia v O'Shea[8] it was open to the decision-maker (in that case the Governor-in-Council) to act or to decline to act on the recommendation of the recommending body (in that case a Parole Board recommending a sex offender’s release on bail).

Were procedures that were required by law to be observed in relation to the making of the decision not observed?

[19] The applicant contends that correct procedures were not followed in the issuing and confirming of the orders.  She does so on three grounds:-

(a) The first respondent failed to assess the dogs as required by the relevant assessment form.

(b) The orders were not signed by C.E.O.

(c) The third respondent failed to advise what constitutes a sufficient enclosure for the purpose of Local Law No.12.

[20] The Dog Attack Assessment Forms completed by Mr West were in-house instruments.  They had no legal status at all and did not “require” him to do anything in that sense.  Further, in his repeated attempts to make contact with the applicant[9], Mr West had had ample opportunity to observe the dogs’ behaviour.

[21] It is true that the instrument of assessment was of its nature a crude totalling of raw scores made.  The scores were meant to allow for the exercise of some measure of discretion on the part of the Animal Control Officers, a discretion which Mr West failed to exercise, but there is no basis in law for complaining about his failure to assess the dogs He did assess the dogs as dangerous and did so upon a body of evidence which included eye witness statements.  A recasting of the scores in the assessment forms to correct the inaccuracy and the failure to exercise the officer’s discretion would not make any material difference.

[22] As to the issue of the signing of the Orders, it is the case that a Dangerous Dog Order is required to be signed by the Council’s Chief Executive Officer but, as counsel for the respondent has submitted, the local law must be interpreted in the light of the Local Government Act 1993 which, by its terms, specifically permits the Chief Executive Officer to delegate his or her powers to another local government employee subject to the exceptions noted in s 1132 of that Act.[10]   It is quite clear that Mr Phipps, as Manager Environmental Assessment, had been delegated the power to issue and to sign a Dangerous Dog Order.  Pursuant to s 27A(7) of the Acts Interpretation Act 1954, the action taken by Mr Phipps to issue and sign the Dangerous Dog Orders is taken to be that of the Chief Executive Officer, as delegator of those particular powers.

[23] The applicant argues that the third respondent has not defined what is meant by “a sufficient enclosure”. As to this point, I do not accept that it is incumbent on a local government authority to specify what constitutes a sufficient enclosure.  It is its duty, in order to protect the community against risk of injury and damage which it might suffer in relation to the keeping of dogs, to instruct the keeper of dogs that the enclosure he or she has erected is not “sufficient…to effectively contain the dog at all times”.  This it has done.  It has instructed the applicant that the current enclosure is not sufficient.  The proper course is for the applicant to now take the obvious step of creating, in effect, an enclosure within the yard itself and if necessary to fit that enclosure with a childproof lock. 

[24] The application for a statutory order of review based on ground 20 2(b) of the Judicial Review Act 1991 must hence fail.

Was there an improper exercise of the power conferred on the second respondent? (s 20(2)(e))

[25] The meaning of “improper exercise of power” is set out in s 23 of the Act.  It relevantly includes those matters which the applicant relies upon in ground 3 of her application (see para 12 hereof).

[26] The applicant again relies upon the assertion that the first respondent’s reports to the second respondent were false. The assessment forms which constitute part of those reports were in fact false because of the application of the rule or policy or practice to ascribe scores to questions for which no response had been given by the interviewee.  That appears to be the substance of the allegation of taking into account irrelevant consideration and exercising a power in accordance with a rule without regard to the merits of the case. 

[27] The alleged failing to take into account relevant considerations appears to be based on the applicant’s assertion that:-

(a) The first respondent failed to take into account the applicant’s version of events;

(b) The first respondent failed to take into account a statutory defence of provocation;

(c) The second respondent failed to give relevant weight to a submission that it was physically impossible for her dogs to have done what the eye witnesses described; and

(d) The second respondent failed to consider that the first respondent might be wrong in his assessment.

[28] In considering this issue the starting point is to look at the terms of the Orders.  The making of a valid, dangerous dog order depends upon the formation of an opinion that the dog is dangerous.  The basis of that opinion – the facts and circumstances – must be set out in the order.[11]   In this instance the facts relied upon were the attack upon and injury to another animal.[12]

[29] The separate written Reasons for the decision refer to the decision-maker’s reliance upon the eye witnesses’ accounts of the incident, Mr West’s direct observation of the dogs and his assessment as detailed in the assessment forms.  As discussed above these forms contained information which was false and relied upon scores resulting from a failure to exercise a discretion.  The false information arises directly from the application of a rule or practice allowed by the third respondent.

[30] What is not clear, however, is the extent to which the false information impacted on the decision-making process.  This was not a point which was particularly canvassed by the second respondent in his evidence.  It was clear at the time he made his decision that he was aware that the applicant had not responded to questions 3 and 4 in the assessment form.  He would have been aware that the scoring was therefore undertaken as part of the practice that existed within his department and it seems he may have presumed, incorrectly, that a measure of discretion had been exercised.

[31] The respondents argue that, for the applicant to succeed upon this ground, she must demonstrate, not only that the relevant decision-maker did in truth fail to take into account one or more of the consideration that she refers to, but that the decision-maker was, in point of law, bound to take the particular consideration into account in making the decision under challenge.  The respondents refer to Minister for Aboriginal Affairs v Peko-Wallsend [13] Mason J (as he then was) said:-

“It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power…I say “generally” because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance.  The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations but that the decision is “manifestly unreasonable”.

[32] None of the considerations referred to by the applicant was affected by any statutory indication. The limited quest for the decision-maker was the formation of his opinion.  His opinion was based on considerations, sometimes conflicting, which he was required to weigh up.  What weight he gave to those considerations was a matter entirely for the second respondent but, in the end result, there was ample evidence, particularly from the eye witness statements, for him to come to the view that the applicant’s dogs did attack and did injure another animal.  I am not satisfied there was any improper exercise of power as asserted in ground 3 of the application.

[33] As to the further suggestion that the second respondent did not give weight to the plaintiff’s claim that it was physically impossible for the dogs to have caused the harm.  The second respondent did in fact himself make a personal inspection of the scene to test that assertion, so there can be no doubt the topic was considered. 

[34] Similarly, and for the same reasons as given above, I reject the claim under the Wednesbury principle that the decision was so unreasonable that no reasonable decision-maker could reach that conclusion.  The fundamental issue is the formation of the opinion that the dogs were dangerous.  The fact that the attack was made against another animal which may have provoked the attack by its barking does not exclude the attraction of the description “dangerous”.  As Wilson J said in Holland v Crisafulli[14] (at para 9):-

“It was common ground that “dangerous” was not restricted to “dangerous to human beings”, an interpretation which is consistent with decisions on similar English legislation. For example, in Williams v Richards [1907] 2 K.B. 88 it was held that the fact that a dog had attacked and killed sheep was evidence that it was “dangerous” within s 2 of the Dogs Act 1871.”

[35] The objects of the Local Law are clear.  They are to protect the community against the risk of injury and damage; to ensure that animals do not create a nuisance or hazard to health or safety; and to ensure that animals are kept and used in a way that is consistent with the rights and expectations of the local community.  There is ample evidence for the decision-maker to come to the view that he did.  It is not open to me to review the merits of that decision nor, in particular, to attempt to re-assess the evidence to establish whether another decision-maker could come to a different view as to what the decision should have been.  See Buderim Ginger Ltd v Booth[15].

Did the decision involve an error of law?

[36] A further ground for the applicant’s submission for a statutory order of review is s 20(2)(f), namely, that the decision involved an error of law.  She submits that it is an error of law because she, as keeper of the animal, did “not bring into or permit an animal to be brought into or allow an animal to be in a public place”.[16]  The dogs were on the street allegedly because they were able to escape from the house through a gate which had been left open.  She had no part in it.  The applicant was not there.  I accept that she, personally, did not bring the animals into the street.  But to permit or allow something to take place does not necessarily import positive action on any person’s part.  Events may readily occur because sufficient action has not been taken to prevent them from happening.  That is precisely the case here.  An enclosure for the dogs had not been created which served to confine the dogs independently of the doors of the house and/or the gates to the yard.

[37] Thus I am satisfied that, in all the circumstances, the Dangerous Dog Orders were rightly issued and confirmed.

Orders

[38] I order:

1.That the application be dismissed.

2.The question of costs is adjourned to a date to be fixed  to permit the parties to make and exchange submissions as to the appropriate Order for costs.