DAMIAN MIOJLIC In Person v CITY OF ONKAPARINGA COUNCIL [2024] SASC 152

On Appeal from SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL (MEMBER DUNSTONE) 2024/SA000404 Appellant: DAMIAN MIOJLIC In Person Respondent: CITY OF ONKAPARINGA COUNCIL Counsel: MR J HENDERSON - Solicitor: KELLEDY JONES Hearing Date/s: 14/11/2024, 21/12/2024 to 22/11/2024 File No/s: CIV-24-009059 B SUPREME COURT OF SOUTH AUSTRALIA (Appeal to a Single Judge) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. MIOJLIC v CITY OF ONKAPARINGA COUNCIL [2024] SASC 152 Judgment of the Honourable Justice B Doyle 20 December 2024 ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL ANIMALS - LIABILITY OF OWNERS AND KEEPERS IN RESPECT OF INJURIES BY ANIMALS - STATUTORY PROVISIONS - SOUTH AUSTRALIA The applicant sought leave to appeal a decision of the South Australian Civil and Administrative Tribunal ('the Tribunal') affirming the decision of the City of Onkaparinga Council to make a prohibition order against the applicant pursuant to s 59A of the Dog and Cat Management Act 1995 (SA). The prohibition order prohibited the applicant from acquiring or becoming responsible for the control of any dog for a period of five years and required that each dog in the control of the applicant be surrendered to the respondent and destroyed. Held, refusing leave to appeal: 1. The Tribunal did not act on any wrong principle in affirming the respondent's Prohibition Order. 2. The applicant has not identified reasonably arguable grounds of appeal in relation to the Tribunal's decision to affirm the Prohibition Order. Animal Welfare Act 1935; Dog and Cat Management Act 1995 (SA) s 59A and s 72; South Australian Civil and Administrative Tribunal Act 2013 (SA) ss 34, 37 and 71; Uniform Civil Rules 2020 (SA) r 25.6, referred to. Briginshaw v Briginshaw (1938) 60 CLR 336; Fletcher v Australian Health Practitioner Regulation Agency [2023] SASCA 36; Giancaspro v SHRM (Australia) Pty Ltd (2005) 93 SASR 32; Henderson v South Australian Housing Trust [2024] SASCA 55; Jackson v Lepp Investments Pty Ltd [2016] SASC 62; Khoo v Bartholomaeus [2020] SASCFC 122; Pix v South Australian Housing Trust (2016) -- 1 of 26 -- 125 SASR 10; Shah (a pseudonym) v Medical Board of Australia [2022] SASC 140; Wilson v City of Onkaparinga [2024] SASC 139, considered. -- 2 of 26 -- MIOJLIC v CITY OF ONKAPARINGA COUNCIL [2024] SASC 152 Civil: Single Judge Appeal 1 B DOYLE J: By notice of appeal filed on 23 September 2024, the applicant seeks leave to appeal against a decision of the South Australian Civil and Administrative Tribunal (‘the Tribunal’) made on 20 August 2024, and an extension of time within which to do so. The extension of time was not opposed. 2 For reasons which accompanied the order made by the Tribunal (‘Tribunal Reasons’), the Tribunal essentially affirmed the decision of the respondent, City of Onkaparinga (‘the Council’), on 24 January 2024 to make a ‘Prohibition Order’ against the applicant pursuant to s 59A of the Dog and Cat Management Act 1995 (SA) (‘the Act’). 3 That section relevantly provides as follows: 59A—Prohibition orders (1) A council or the Board may, in accordance with this Division, make a Prohibition Order against a person. (2) A Prohibition Order— (a) prohibits the person from acquiring or becoming responsible for the control of any dog for the period specified in the order; and (b) requires each dog owned by the person, or for the control of which the person is responsible, at the time the order takes effect— (i) to be destroyed or, if the order so allows, disposed of in a specified manner, within a specified period (but not less than one month after the order takes effect); and (ii) until destroyed or disposed of, to be kept or detained at a place specified in the order (or at some other place subsequently approved by the council or the Board (as the case requires)). (3) A council or the Board may, on its own initiative or on application, make a Prohibition Order against a person if satisfied that— (a) while the person owned or was responsible for the control of a dog, the dog attacked, harassed or chased a person or an animal or bird owned by or in the charge of a person in circumstances that would constitute an offence against this Act; and (b) — (i) the dog was already subject to a Destruction Order or a Control (Dangerous Dog) Order; or -- 3 of 26 -- [2024] SASC 152 B Doyle J 2 (ii) during the 5 years preceding the event referred to in paragraph (a), a Destruction Order or a Control (Dangerous Dog) Order was made in relation to some other dog on grounds that arose while the person owned or was responsible for the control of that other dog. (3a) … (4) However, a council or the Board may not make a Prohibition Order if the person satisfies the council or the Board that— (a) the person did not intend the event referred to in subsection (3)(a) to occur and the event did not result from any failure on the part of the person to take all reasonable steps to avoid the occurrence of the event; or (b) the event referred to in subsection (3)(a) occurred while the dog was, without the person's consent, in the possession or control of another person. … Prohibition Order 4 As affirmed, the Prohibition Order made in this case prohibits the applicant from acquiring or becoming responsible for the control of any dog for a period of five years, expiring on 21 August 2029, and required that each dog owned or in the control of the applicant be surrendered to the respondent and destroyed. 5 At the time of the making of the order by the respondent, the applicant owned or controlled two dogs, Mini Skip (a female brindle Staffordshire Bull Terrier cross) and Schutz Wow Wha (a male black Staffordshire Bull Terrier cross). 6 The basis for the making of the Prohibition Order, as set out in the order made by the respondent, was that: • in circumstances that would constitute an offence against the Act, the dog Mini Skip along with another dog Schutz Wow Wha attacked another dog, being a brindle female Staffordshire Terrier cross Rottweiler (named Jezabelle) on Sabina Crescent Christies Downs at about 6.00 pm on Thursday 4 January 2024, causing the victim dog significant injuries to its head and chest;1 and • at the time of the attack, Mini Skip was subject to a Control (Dangerous Dog) Order issued on 31 October 2022.2 7 In a letter accompanying the Prohibition Order, Mr Ashenden, of the respondent, advised that consideration had been given to the applicant’s submission received on 18 January 2024, which included a witness statement of 1 Section 59A(3)(a) of the Act. 2 Section 59A(3)(b)(i) of the Act. -- 4 of 26 -- [2024] SASC 152 B Doyle J 3 Samantha Burgess and character references supplied by Luke Gowrgens, Christerpher Mota and Adette Hanley-McClure. Mr Ashenden wrote that his review of the evidence suggested a dog attack took place at the time and place indicated in circumstances where the applicant’s two dogs were being exercised off-leash at a nearby oval. It was noted that Mini Skip was subject to the Control (Dangerous Dog) Order as a result of an attack that occurred at a similar location in similar circumstances in June 2022 and that she had, despite the order, not been under the applicant’s effective control by physical restraint, nor been wearing a muzzle, nor been in receipt of the required training. It was further noted that Schutz Wow Wha had not been compliant with the requirements of the Act in that he had not been de-sexed, microchipped or registered. 8 The letter explained that the determination had been made because: • the severity of the attack on 4 January 2024 was to be characterised as ‘level 6’ on the DCMB Incident Severity Guideline, because the dogs inflicted a life-threatening attack (potential grievous bodily harm) for which the recommended outcome is a Destruction Order; • reasonable steps to control the dogs had not been taken and extreme measures were required to separate the dogs from the victim dog; • following Mini Skip’s attack in June 2022, no changes were implemented regarding the management of Mini Skip to prevent the incident from recurring or steps taken to comply with the resulting order; • Mini Skip had demonstrated outbursts of unduly dangerous behaviour and at these times the applicant had been unable to execute effective control over her by verbal command or physical restraint; • the applicant’s history of non-compliance with basic obligations under the Act had proven he was unable to comply with the complex requirements of a Control (Dangerous Dog) Order; and • the applicant’s continued dog ownership has resulted in aggressive and dangerous behaviour being fostered in additional dogs, presenting an ongoing risk to the community that had to be considered. 9 The respondent later prepared and provided a statement of its reasons (‘Council Reasons’) which set out a number of findings of material fact relating to an attack by Mini Skip on another dog, a Kelpie cross Pointer called Cobber, in June 2022. This resulted in the Council issuing the Control (Dangerous Dog) Order in respect of Mini Skip on 31 October 2022. 10 In respect of the incident on 4 January 2024, there were findings that: -- 5 of 26 -- [2024] SASC 152 B Doyle J 4 • at approximately 6 pm, a male person (elsewhere identified as Samuel Fisher) was walking Jezabelle along a footpath in close vicinity to the applicant’s Sabina Court premises; • he saw a dog run through a fence panel from the Christies Beach High School oval towards him and his dog. He observed who he believed to be the owners of the dog on the oval calling for the dog to return; • this dog, determined to be Schutz Wow Wha, rushed over to Jezabelle, knocking her over before grabbing her head in its mouth and biting at her face; • Mr Fisher attempted to lift Jezabelle into the air to stop the attack continuing, before the male owner, who was identified as the applicant, tried to pull Schutz Wow Wah away; • at some point, another dog, identified as Mini Skip, came over and joined the attack, growling and biting at Jezabelle’s neck and forcing Mr Fisher to let go of his dog and retreat; • eventually, Mini Skip let go and was returned to the applicant’s premises by a female who was with the applicant whilst Schutz Wow Wha was still attacking and latched on to Jezabelle’s neck; • when Schutz Wow Wha let go, the applicant attached a lead to the dog and walked away. The female person was confronted by Mr Fisher who requested contact details, which she did not provide; • Mr Fisher called the police and officers attended but were unable to locate the dogs or the applicant and the female person; • as a result of the attack, Jezabelle suffered serious wounds/lacerations to the head and chest requiring extensive veterinary treatment and surgery. 11 The Council Reasons describe the course of the investigation. It was identified that the applicant had previously been issued with a Destruction Order on 1 April 2016 in relation to a Staffordshire Bull Terrier cross previously owned by him named ‘Skip’, which had been euthanised. It was found that neither dog involved in the incident was registered and that Mini Skip was not complying with the order issued in respect of her. On 10 January 2024, the Council determined to issue the applicant with a notice of intention to issue a prohibition order and invited his submission. On that occasion, when Council officers attended at his premises, the applicant, under caution, denied to Council officers that his dogs were involved in any attack. 12 That said, his later submission included a witness statement from him in which he said that: -- 6 of 26 -- [2024] SASC 152 B Doyle J 5 • Jezabelle was not on a leash and may have provoked the response from the dogs; • Mr Fisher was aggressive and threatening; and • Jezabelle did not appear to be bleeding. 13 The Council Reasons detail the evidence relied upon and conclude as follows: 53. The Order was issued pursuant to section 59(3) of the Act because the Council was duly satisfied that: 53.1 whilst in the care and control of the Applicant, the Dogs attacked another animal owned by a person, namely Jezabelle the Staffordshire Bull Terrier C Rottweiler owned by the Second Witness, in circumstances that would constitute an offence against the Act; and 53.2 the First Dog, at the time of this attack, was already subject to a Control (Dangerous Dog) Order, issued on 31 October 2022 following the First Incident. 54. Specifically, the Council was satisfied on the basis of the evidence obtained during its investigation into the Second Incident and to the requisite standard of proof specified in Briginshaw v Briginshaw 60 CLR 336, that the circumstances of the Second Incident constitute an offence under the Act as follows: 54.1 the Dogs were on public property, other than their own, and not under effective control, which circumstances constitute a wandering at large offence contrary to section 43 of the Act and, with respect to the First Dog, was contrary to the Control (Dangerous Dog) Order in contravention of section 55 of the Act; and 54.2 the Dogs attacked Jezabelle, which constitutes an offence under section 44(2) of the Act. 55. In forming its opinion that there were grounds to issue the Order under the Act, the Council: 55.1 served on the Applicant, in person on 10 January 2024, Notices of Detention for the Dogs and have notice of the Council’s intention to Issue the Order, together with a cover letter informing the Applicant of the Incidents and inviting the Applicant to provide submissions with respect to the proposed Order; and 55.2 on 24 January 2024, served the Applicant in person with the Order and informed him of his right to review the order through SACAT. 56. Prior to issuing the Order the Council considered and ruled out the application of section 59A(4) of the Act on the basis of the evidence in its possession because, whilst the Council does not suggest that the Applicant intended for the Second Incident to occur, the Council is not satisfied that the Second Incident arose in circumstances where the Applicant took all reasonable steps to avoid its occurrence. -- 7 of 26 -- [2024] SASC 152 B Doyle J 6 The Council formed this view on the basis that the following steps could have reasonably be taken by the Applicant to avoid the Second Incident: 56.1 ensuring that the Dogs were properly controlled on a leash when in a public place; and 56.2 the First Dog, at the very least, should have been wearing a muzzle as required by the Control (Dangerous Dog) Order. 57. The Council acknowledges that a Prohibition Order imposes significant restrictions on a person. Such orders are reserved for extenuating circumstances where a dog owner has consistently and repeatedly failed to demonstrate a willingness or commitment to comply with the Act. In this case, having weighed up all considerations, the Council was satisfied that its decision to issue the Order was reasonable and appropriate, including in the interest of community safety because: 57.1 the Applicant’s history of breaching his obligations under the Act (including failing to register, microchip and desex the Dogs) and not effectively managing dogs that he owns so that they do not cause harm to other persons and pet is demonstrative of the Applicant, at best, not having the capacity to comply with the Act and, at worst, having complete disregard for the operation of the Act and his obligations thereunder; 57.2 of particular concern, there is a history of the Applicant failing to comply with Control Orders issued to him in respect of his dogs. The Applicant previously owned a dog that was euthanised by the Council following an attack incident. Further, after the Control (Dangerous Dog) Order being issued in respect of the First Dog, the Applicant failed to manage the First Dog in accordance with the requirements of that order; 57.3 there have been at least 2 instances within the last 5 years where a dog owned by the Applicant has attacked a person or another animal; 57.4 the Applicant’s attitude is complacent and seeks to assert that the Dogs do not pose a risk to the community. The Council considers that the Applicant’s refusal to acknowledge or accept the risk that the Dogs pose to the community is a factor that is contributing to his repeated failure to comply with the Act; 57.5 the Applicant’s history is evidence of an inability on the part of the Applicant to manage dogs and the risk to the community arising from this is exacerbated by the breed of the dogs that the Applicant chooses to own. Specifically, Staffordshire Bull Terriers are a large and strong dog breed that have a greater capacity to cause harm to others in comparison to other smaller dog breeds; 57.6 in light of the above, the Council has no confidence that the Applicant can or will manage dogs in his possession in a responsible manner that is necessary to avoid harm to other persons or animals in the community; and 57.7 the Order is consistent with and necessary to achieve the objects of the Act to: 57.7.1 reduce public and environmental nuisance caused by dogs; and 57.7.2 promote the effective management of dogs. -- 8 of 26 -- [2024] SASC 152 B Doyle J 7 Application for review 14 The applicant apparently made an application to the Tribunal for a review of the decision to issue the Prohibition Order pursuant to s 72 of the Act. 15 The reason for my use of the word ‘apparently’ is that, on the hearing of the appeal before me, a submission was made on the applicant’s behalf that he had never instituted a review of the Prohibition Order and was not responsible for the application that had been made to the Tribunal. 16 The application contained the applicant’s mobile telephone number and email address and included statements expressed in the first person, such as: Describe why you think the decision was wrong: Neither of my 2 dogs are dangerous and the information the council have is incorrect, being I was unable to give my side of events and a statement wasn’t taken from me. The person who owns the dog made a statement to the police and then the council appeared at my house with the police to arrest me and take my dogs away. [T]here were no documents provided to me and [I] was not able to respond to the order. The only information [I] was given was that my dog had attacked someone. 17 The review proceeded to a hearing before a member of the Tribunal on 13 August 2024. There had been three directions hearings held on 5 April 2024, 7 May 2024 and 30 May 2024. The applicant attended and participated in each directions hearing and the substantive hearing. There was no suggestion that he had not brought the review,3 no explanation for how he came to be present if he had not done so, and no suggestion that he was in any way confused about the reason for his attendance.4 The proposition (advanced orally at the appeal, but unsupported by, and contrary to all, the evidence) that the applicant was not responsible for the institution of the review application is rejected. 18 The Tribunal’s pre-hearing directions requiring the applicant to provide a response to the respondent’s outline of submissions and any video footage sought to be relied upon by him were not complied with. The substantive hearing 19 At the substantive hearing, the Tribunal received a book of documents, body camera video footage of the attendance of Council officers to seize the dogs on 10 January 2024, video footage of the issuing of the Prohibition Notice on 24 January 2024, RSPCA observation notes with respect to the dogs, veterinarian notes with respect to Jezabelle and a small number of other documents. 20 The applicant attended, together with Ms Burgess and a further person, unidentified on the transcript other than as ‘support driver’ but who, it has later 3 Indeed, at the substantive hearing, when asked to confirm that it was the Prohibition Order that he wanted to review, he said it was. 4 Nor did he cavil with the proposition put to him by the member that it was his application that he had lodged some months prior to the hearing. -- 9 of 26 -- [2024] SASC 152 B Doyle J 8 been confirmed, was Ms Hanley-McClure, a friend of the applicant. The respondent was represented by counsel. The member conducting the hearing explained the process that would be followed and gave the parties an opportunity to identify the evidence they would be relying on. It was noted that Mr Fisher, the owner of Jezabelle, was present in response to a summons that had been issued by the Tribunal for his attendance. The applicant’s case 21 The applicant said he would rely on the observations made of the two dogs by the RSPCA, the support letters he had provided, evidence from Ms Burgess and possibly video footage of the events of 10 January 2024. When asked how the latter was relevant to whether the Prohibition Order was the correct and preferable decision, he said he was not 100% sure. It was apparent, however, that he had objections to the conduct of the Council and police officers on that occasion. 22 The applicant called Ms Burgess as a witness, and she gave an account of the events of 4 January 2024. In brief outline, she said that: • she lived at the applicant’s premises for about six months and therefore knew the two dogs; • she was not aware that Mini Skip was subject to a Control (Dangerous Dog) Order; • she had only been aware of the dogs going on walks two times; • she left home and was walking towards the bypass when she saw a man with a dog which was not on a lead; • she is cautious around dogs. Having noticed a dog that was not on a lead which was looking at her ‘as dogs do’, she was about to ask the man if the dog would be alright when she saw Schutz Wow Wha running through the panel that was missing in the fence and ‘go straight for Jezabelle’; • Schutz Wow Wha latched on to Jezabelle’s jaw; • she dropped her bike and ran over and grabbed hold of his harness. She tried to get Schutz Wow Wha to let go and was yelling at him to do so but without success; • she thought about putting her hands in his mouth but did not want to get bitten; • the applicant arrived and so did Mini Skip who also then latched on to Jezabelle (she subsequently said it was more like pinching her skin, in the shoulder area) before the applicant got Mini Skip to disengage; -- 10 of 26 -- [2024] SASC 152 B Doyle J 9 • she then took Mini Skip home by holding her harness and came back with a rope to act as a leash for Jezabelle; and • Jezabelle’s owner was yelling at her and abusing her. 23 At one stage in her evidence in chief, the applicant asked Ms Burgess whether Schutz Wow Wha attacking Jezabelle ‘would have been for the protection of you?’, she responded, ‘yeah, definitely’. However, her evidence was that when Schutz Wow Wha attacked Jezabelle she was not in close proximity to Jezabelle and she accepted in questioning from the Tribunal member that she was not in immediate danger from Jezabelle. 24 After Ms Burgess’ evidence, the applicant requested that footage of the events of 10 January 2024 be shown. A transcript was also in evidence. 25 In further exchanges with the Tribunal, and, in the course of questioning of him by the respondent’s counsel, the applicant said: • that he had no idea that Mini Skip had been under a Control (Dangerous Dog) Order; • that he did not read the subsequent expiation notice he received which asserted a contravention of that order; • that he had not seen the book of documents until the day of the hearing; • that the RSPCA records suggested Mini Skip is not dangerous; • that he had taken the dogs out on numerous occasions off lead when there he considered there were no other dogs around. If there were other dogs around, he would not put other dogs ‘in that predicament’; • that his dogs did ‘exactly what they were … raised and taught to go ahead and do. Which is if they find themselves in an uncontrolled sort of situation or scenario, they actually just grab a hold of whatever it is that’s threatening them and wait until I get there to give them further instructions’. He emphasised that they had done what he trained them to do ‘down to a T’. When asked whether he contemplated training his dogs neither to latch on to in order to detain, nor to attack, other dogs, he said ‘no-no, not whatsoever’; • that Mini Skip was not registered; • that his son is severely disabled and the two dogs were ‘like almost his medical dogs’, but his son had subsequently moved out of the premises after the dogs had been removed; • that Schutz Wow Wha had not had any formal training and was not de-sexed because he ‘didn’t sort of see fit’; -- 11 of 26 -- [2024] SASC 152 B Doyle J 10 • that he agreed that Schutz Wow Wha had latched onto the lower jaw of Jezabelle and, consistently with his training, would not release the dog merely on the applicant’s command, and would only do so once he was physically present; • that Mini Skip reached the dogs before he did and she ‘attached herself, well with her front teeth’ – in what he described as a ‘pinching type motion’ to Jezabelle’s shoulder or ‘maybe side’; • that he rejected the characterisation of Schutz Wow Wha’s conduct as an attack, saying it was the ‘furthest thing from it’; • that after he had grabbed Mini Skip’s and Schutz Wow Wha’s harnesses and verbally instructed them to let go, they did so, but he didn’t do this immediately. He wanted first to ascertain if the other dog was going to start to attack either of his two dogs. He instructed Mini Skip to release first, and Ms Burgess then took him home. 26 The applicant then indicated, in response to a question from the Tribunal member, that there were no further points he wanted to make in the documentation or otherwise. The respondent’s case 27 The respondent called Mr Samuel Fisher, Jezabelle’s owner. Prior to the January incident, he went out exercising with Jezabelle five or six days a week. On this occasion he had been riding his bike, as opposed to running, which was his more usual form of exercise. He said she was a very good and gentle dog who did not approach cats or birds and was well trained. He would carry a lead with him but usually did not need or use it unless he was concerned about an aggressive dog. 28 On this occasion he had a lead with him but, correcting what he had said to the contrary in his written statement, Jezabelle was not on lead at the time of being approached by the applicant’s dogs. He said he was very worried the first dog was going to kill Jezabelle because it went quite close to her jugulars and there was blood on the ground. Mr Fisher said: There were three things I remember. I’m not 100% sure in what order. There was a bite. Then there was rooting of the head. And it turned around and then it latched on. And then when we were trying to pull them off, it disengaged but then latched on again. … That’s why there are two different sort of injuries as you can see with the vet. 29 Mr Fisher said that the bites and latching corresponded with the places where the dog had required stitches and he said that ultimately the injuries did not heal with the result that they had to put Jezabelle down. Mr Fisher thought that the first -- 12 of 26 -- [2024] SASC 152 B Doyle J 11 dog was in contact with Jezabelle for a minute, or a minute and a half, during which time Jezabelle was in shock and not doing anything. 30 He described another dog that attended that did not seem as aggressive as the black dog. That dog joined in, but Mr Fisher’s perception was that the dog thought it was ‘a bit of a game’. He thought that the second dog might have nipped or nuzzled but ‘wasn’t like latching on’. He described seeing both a female and a male, who he identified as the applicant. 31 When the lady came back, he accepted he had sworn at her as he was quite emotional. He took Jezabelle to a vet straight away. She was there overnight and required stitches. At first, they tried to ‘do it without a drain’ but the dog did not heal well, so she had to be returned for more surgery (on two occasions). He identified photographs of the dog post-surgery and post-stitches. He confirmed that the visible wounds were caused in the incident. 32 Mr Fisher’s evidence was that Jezabelle had otherwise been in good health. She had required an operation to remove her reproductive organs because she had not been de-sexed when young, but otherwise she had not needed to see a vet apart from vaccinations. He had been hoping she would make it to about 15 or 16 years old. Although there was a period after the procedures where she seemed to be recovering, she started not eating and was not really healing. In April 2024, Jezabelle was put down. 33 The applicant was then asked whether he wanted to ask Mr Fisher any questions. He responded, ‘None whatsoever’, commenting: Lying piece of shit. 34 … He’s a lying piece of shit … He’s not the person that was at, like on site in that instance. Not even close mate. Fucking corrupt bloody. 35 Questioning from the Tribunal member resulted in the witness stating unequivocally that he was indeed Mr Fisher and had been with his dog Jezabelle on the day of the incident. 36 Mr Phillip Jeffery of the respondent Council then gave evidence by reference to a ‘Schedule of Incidents’ involving the applicant and his dogs. Shortly after his evidence commenced, the applicant requested a toilet break, which he was granted, but from which he did not return. 37 The applicant’s support person informed the Tribunal he had left and had done so because he considered that the Tribunal had already made its decision. 38 The hearing then proceeded in the applicant’s absence. -- 13 of 26 -- [2024] SASC 152 B Doyle J 12 39 Mr Jeffery gave evidence as to the practice pursuant to which the Control (Dangerous Dog) Order would have been posted to the applicant, together with a subsequent expiation notice for its contravention, and the absence of any ‘return to sender’ notification. He also referred to records of the respondent which noted that in July 2023 an officer had spoken with the applicant about non-compliance with the earlier order. In that entry, there is a reference to the applicant wanting to review the order, but no suggestion he was unaware of its existence. 40 He explained that before issuing a prohibition order he considered it appropriate to invite a submission from the applicant. This was provided to the applicant on the occasion when the dogs were seized, on 10 January 2024. Mr Jeffery explained that in order to seize the dogs he required a warrant, and that an affidavit was required to be filed in connection with that. The affidavit and the warrant, which was issued pursuant to s 25D of the Act, were in the book of documents and in evidence before the Tribunal. So was the letter to the applicant dated 10 January 2023 (but plainly in error, the date should have been 10 January 2024) which notified him of the respondent’s intention to issue a prohibition notice (for a period of not less than five years) and inviting a submission from him. 41 Mr Jeffery explained that he arranged for SA Police to accompany the respondent’s officers on that occasion in anticipation that a person might not react well to the seizure of their dog. He recounted, as can be seen on the footage, that on that occasion a male (not the applicant) sought to take Schutz Wow Wha away on a lead whilst they were present, ostensibly to avoid seizure. 42 I interpolate, at this juncture, that, on 10 January 2024: • Council officers explained their authority under the Act to take the dogs; • the applicant stated that the allegations of an attack involving the dogs were false; • the applicant declined to permit the Council officers to take the dogs; • after warnings that if he did not let go of the dog he was holding he might be arrested for hindering, the applicant was arrested by the police; and • the applicant was informed that he could make a submission in opposition to a prohibition order in relation to the dogs. 43 Mr Jeffery explained that in fact subsequent submissions and documents were received from the applicant. This included Ms Burgess’ written statement. Mr Jeffery explained that these documents were considered but that the Prohibition Order was ultimately made (and notified to the applicant on 24 January 2024). 44 Mr Jeffery gave evidence that to his knowledge it is extremely difficult to re- home dogs that are under a Control (Dangerous Dog) Order. He explained that he decided a five-year preclusion on ownership was appropriate as neither excessive -- 14 of 26 -- [2024] SASC 152 B Doyle J 13 nor lenient in all the circumstances, with a view to the applicant being ready, after that period, to responsibly own another dog. He explained that at the time the decision was made, Jezabelle had still been alive. 45 Following the conclusion of Mr Jeffery’s evidence, there were exchanges about the fact that Ms Burgess had tended to suggest a greater involvement by Mini Skip than Mr Fisher had and that, on either account, Mini Skip was not the initial aggressor. The respondent submitted that it was not necessary (in order for the requirements for the issuing of a Prohibition Order to have been met) that Mini Skip actually be involved in the attack, but that she had in fact been, albeit in a lesser way than Schutz Wow Wha. 46 Having reviewed the entirety of the proceeding before the Tribunal, I consider that the approach that was adopted was consistent with the nature of the Tribunal’s review jurisdiction as contemplated by ss 34 and 37 of the South Australian Civil and Administrative Tribunal Act 2013 (SA) (‘SACAT Act’). Tribunal Reasons 47 One week after the hearing, the Tribunal made an order affirming the decision under review and provided detailed reasons. 48 The Tribunal Reasons contain a summary of the procedural history, an identification of the main matters raised by the applicant at the hearing, and a summary of the evidence of Ms Burgess, the applicant, Mr Fisher and Mr Jeffery. The Tribunal Reasons then set out the findings of the Tribunal. 49 Relevantly, and having regard to all of the evidence, the Tribunal found that: • the person who answered the witness summons was Mr Fisher, Jezabelle’s owner (Tribunal Reasons [79]-[80]); • the dogs described by Mr Fisher were Schutz Wow Wha and Mini Skip, for whose control the applicant was responsible (Tribunal Reasons [81]-[82]); • although Mini Skip’s participation was for a lesser period of time, each of Schutz Wow Wha and Mini Skip attacked Jezabelle within the meaning of s 44 of the Act (Tribunal Reasons [83]-[93]); • as Mr Fisher had said, in addition to yelling, the applicant was required to use his strength to remove Schutz Wow Wha’s locked jaw and pull him off Jezabelle (Tribunal Reasons [94]); • the assertion that it was not an attack because it was what the applicant trained the dogs to do was rejected, and such training was inappropriate in any event (Tribunal Reasons [95]); • the attack by both dogs was unprovoked (Tribunal Reasons [96]-[97]); -- 15 of 26 -- [2024] SASC 152 B Doyle J 14 • Ms Burgess’ and the applicant’s claim that the Schutz Wow Wha may have been protecting her was rejected (Tribunal Reasons [98]) • the applicant’s argument he did not know about the Control (Dangerous Dog) Order in respect of Mini Skip was rejected (Tribunal Reasons [100]-[101]); • contrary to the requirements of the order, Mini Skip was not wearing a muzzle or collar as required when she attacked Jezabelle (Tribunal Reasons [102]), and nor had the required training been undertaken (Tribunal Reasons [103]); • the dogs’ attack on Jezabelle constituted an offence under s 44(2) of the Act with respect to both of the applicant’s dogs (Tribunal Reasons [106]); • having regard to the schedule of incidents and the applicant’s poor history of responsible dog ownership, the Tribunal’s firm view was that the applicant is presently not equipped to responsibly manage Schutz Wow Wha or Mini Skip (Tribunal Reasons [111]); • the applicant lacks insight and has not taken his obligations seriously, nor has he taken the action that the respondent took prior to the 4 January 2024 attack seriously (Tribunal Reasons [111]); • the requirements for the making of a Prohibition Order were made out, either on the basis of s 59A(3)(b)(i) or s 59A(3)(b)(ii) (Tribunal Reasons [112]); • whilst the decision was made on an independent review, it was also appropriate to give weight to the original decision maker’s conclusion as required by the SACAT Act (Tribunal Reasons [113]); • the decision to issue the Prohibition Order was the correct and preferable order but with two aspects varied being that the five-year period should commence on the date of the Tribunal’s order and that the order for destruction should be delayed (in order not to frustrate the applicant’s appeal rights) (Tribunal Reasons [114]). The proceeding in this Court 50 As has been noted, the proceeding in this Court was filed on 23 September 2024. 51 The grounds of appeal are as follows. (1) Injustice and discrepancies from the Council Members, Christie’s Beach Police Station, Kelledy Jones lawyers, SACAT and Samuel Fisher. Perjury was committed. (2) There was no proper legal procedure upon any investigative process throughout the whole time. -- 16 of 26 -- [2024] SASC 152 B Doyle J 15 (3) I was wrongfully Arrested hindered, berated and removed from my property whilst they seized my dogs. (4) Samuel Fisher isn’t the male who was present on the day of the incident. (5) Samuel Fisher committed perjury on the witness stand stating he rang his ex partner on the day and she took him to the vets. But he rang the police not his ex partner. (6) Description of both mini skip and Jezabelle completely wrong. (7) Past history between Damian Miojlic and Phillip Jeffrey’s prior to his role as a council member. He’s had a vendetta against myself since I was a teenager. (8) The SACAT judge and [counsel appearing for the respondent before the Tribunal] have a personal connection outside of work. Frequent lunch dates etc. It’s conflict of interest. (9) They prevented myself from having any support people during each hearing just to antagonise me strip me of my dignity trying to cause me to go off and potentially be locked up. (10) All documentation and [pictures] supplied by the vets and Samuel Fisher supposed evidence towards this case are false and had nothing to do with the incident they were from a previous health issues that jezabelle had causing her to have quite extensive surgery few months prior to the day of the incident. (11) On the day of the last hearing the lawyer from Kelledy Jones lawyers supplied wrongful evidence stating it was mini skip when in fact it was her daughter Jess who was owned by someone else and she has been seized and destroyed due to a prior incident not this one at present. (12) My dogs have been deemed dangerous and put on the order to be seized and destroyed, but the RSPCA staff observations whilst in care says the complete opposite it clearly states they are beautiful well behaved dogs no behavioural problems, no aggression nor aggressive behaviour shown towards staff what so ever and have been mingling with other dogs whilst in care and no aggression nor aggressive behaviour towards any of them at all. They have stated however both my dogs have declined and starting to withdraw due to fretting for their family and home. Shutz has deteriorated dramatically and they’ve put him on antidepressants due to this. Mini skip has started being vocal all day everyday crying to come home. (13) False statement from my next door neighbour who wasn’t even present on the day of the incident. (14) I have been left in the dark throughout the process leading up to court, no one came and got a statement from myself my sister Joanne and my housemate/witness who was present on the day of the incident. I’ve never had a fair day of justice to tell my side of the incident nor have I been allowed the right to defend myself and my dogs. (15) They completely disregarded any information or statements made from myself in regards to shutz and mini skip being service/medic dogs for my son Simon who has type 2 SMA and has carers who come in and help around my home. My son has now moved out due to the stress of losing his dogs/family it’s impacted us both quite extensively. -- 17 of 26 -- [2024] SASC 152 B Doyle J 16 52 The order sought on the proposed appeal is: All false accusations and allegations to be rectified, the prohibition order to be dropped and destruction of my dogs to be dropped and rectified. All parties who committed perjury throughout this case to be dealt with accordingly and all Respondents acting on Samuel fishers behalf be penalised for their discrepancies and injustice throughout this whole process. 53 Underneath the appeal grounds appears a raft of apparent requests for documents, audio footage and video footage. However, no interlocutory application for discovery (or production of documents) in connection with the appeal was ever pursued. 54 At a directions hearing in this matter on 23 September 2024, McDonald J granted a stay of the part of the Prohibition Order that required that the dogs be destroyed. At a subsequent directions hearing on 27 September 2024, the respondent indicated it did not oppose the extension of time for the bringing of the application. 55 The application for leave,5 and any appeal, were listed for hearing before me on 14 November 2024. The applicant did not file any written submissions within the time frame provided by the Uniform Civil Rules 2020 (SA), or at all. 56 At the commencement of the hearing on 14 November 2024, the applicant requested an adjournment so that he could finalise arrangements for legal representation. Over the respondent’s opposition, I granted an adjournment of the matter until 21 November 2024, indicating that if legal representation had by that time been secured, I would contemplate a further short adjournment. 57 On 21 November 2024, the applicant informed me he had not secured legal representation. He did not seek a further adjournment. 58 He did, however, seek that his friend, Ms Hanley-McClure, be permitted to make submissions on his behalf. The basis was that the applicant was said to suffer from anxiety and could not properly express himself. He told me that Ms Hanley-McClure had been involved in the matter and he was confident she would act in his interests. Ms Hanley-McClure assured me she was familiar with all the papers, had some familiarity with law having studied it for several years and was comfortable that she understood what the applicant wanted her to advance on his behalf. The respondent was not opposed to Ms Hanley-McClure being given permission to make submissions for the applicant. In the somewhat unusual circumstances of the case, and not without some hesitation, I granted her permission to speak for the applicant.6 5 Leave to appeal is required by reason of s 71(2) of the SACAT Act. 6 Uniform Civil Rules 2020 (SA) r 25.6(4). In respect of r 32.01 of the Supreme Court Rules 1987 (SA), see Giancaspro v SHRM (Australia) Pty Ltd (2005) 93 SASR 32 at [8]-[22] (Bleby J, Doyle CJ agreeing), at [75]-[80] (Gray J). -- 18 of 26 -- [2024] SASC 152 B Doyle J 17 59 Ms Hanley-McClure made oral submissions addressing some (but not all) of the grounds of appeal. She also made some further submissions not raised by the grounds of appeal. She completed her submissions just as the Court adjourned for lunch. When the hearing resumed after lunch, Ms Hanley-McClure said that she did not know where the applicant had gone (he had not returned to Court), and she was worried for his safety. I decided that I should adjourn the hearing to permit Ms Hanley-McClure to look for the applicant, given her concerns. I adjourned the matter to the following afternoon. At that time, neither the applicant nor Ms Hanley-McClure appeared, although the applicant had earlier sent an email indicating wished to appear by telephone (and a response had been sent indicating that would be permitted). Telephone calls to the applicant’s number were unsuccessful. The respondent’s counsel informed me he had, the previous afternoon, seen that the applicant had been located and was with Ms Hanley-McClure and appeared, physically at least, to be safe and well. I determined to proceed with the respondent’s oral submissions, but to grant the applicant the opportunity to make any submissions in reply and with the benefit of the transcript. A five-page document was subsequently filed on the applicant’s behalf. Leave to appeal and nature of appeal 60 In considering whether leave to appeal should be granted, the ordinary principles governing leave to appeal in civil appeals apply.7 The overriding principle is the interests of justice, having regard to whether the appeal is reasonably arguable, whether it raises any matter of principle or general importance, and whether the subject matter involves a matter of sufficient substance. Further, where the proposed appeal relates to a matter involving an application of the Tribunal’s specialist knowledge, that may be a matter militating against a grant of leave.8 61 In considering whether grounds of appeal are reasonably arguable, it is relevant to consider the nature of the Court’s function on appeal if leave is granted. In the context of appeals by way of rehearing from a decision of the Tribunal, a distinction is drawn between a discretionary decision and a non-discretionary decision.9 62 By and large, the appeal grounds appear to relate either to the process adopted by the Tribunal, or to factual matters which appear to go to the foundational requirements for the imposition of the Prohibition Order. Any asserted errors with 7 Jackson v Lepp Investments Pty Ltd [2016] SASC 62 at [19] (Parker J), referred to (with approval) in Pix v South Australian Housing Trust (2016) 125 SASR 10 at [3] (Kourakis CJ, Bampton and Doyle JJ agreeing); Khoo v Bartholomaeus [2020] SASCFC 122 at [10] (Kelly J, Livesey and Bleby JJ agreeing); Fletcher v Australian Health Practitioner Regulation Agency [2023] SASCA 36 at [16] (Livesey P and Lovell JA). 8 Henderson v South Australian Housing Trust [2024] SASCA 55 at [40] (Lovell and Doyle JJA, Kimber AJA), referring (inter alia) to Pix v South Australian Housing Trust (2016) 125 SASR 10 at [3], [6] (Kourakis CJ, Bampton and Doyle JJ agreeing). 9 Shah (a pseudonym) v Medical Board of Australia [2022] SASC 140 at [202] (Blue J). -- 19 of 26 -- [2024] SASC 152 B Doyle J 18 respect to factual matters of that kind likely attract the ‘correctness standard’ of appellate review. It is not entirely clear whether, if all of the complaints about process or factual findings are rejected, there is any distinct challenge to the decision whether and on what terms to impose the Prohibition Order. As explained in Wilson v City of Onkaparinga,10 I consider such grounds would engage the deferential standard of appellate review. 63 I now turn, for the purposes of considering leave to appeal and the ultimate merits, to address the grounds of appeal, together with the further arguments advanced orally. I will endeavour to group the complaints apparently raised by the grounds and arguments, rather than deal with them in the sequence in which they were listed or were presented. Grounds relating to the respondent’s conduct, decision or actions 64 Ground 1 makes an unparticularised assertion of injustice and discrepancies involving, inter alia, unidentified ‘Council Members’. The complaint was not developed. To the extent it relates to the respondent’s officers, it is not reasonably arguable. 65 Insofar as ground 2, which complains that there was no ‘proper legal procedure upon any investigative process throughout the whole time’, might relate to the respondent, it is not reasonably arguable. Mr Jeffery’s evidence, coupled with the documents tendered, reveals that an investigation was undertaken and that, prior to the Prohibition Order being made, the applicant was given an opportunity to raise materials or arguments he wished to rely upon. Moreover, and in any event, since the Tribunal independently reviewed and affirmed the Prohibition Order based on evidence before it, and the appeal to this Court, in order to succeed, the applicant must impugn the Tribunal’s decision. The contention that the Council’s decision-making process was flawed is not to the point. 66 Ground 3 complains that the applicant was wrongfully arrested, hindered, berated and removed from his property whilst his dogs were seized. This complaint appears to relate more to the conduct of South Australia Police than to the respondent, and for that reason, and because the lawfulness of the seizure of the dogs is a separate question from the validity of the Prohibition Order, it does not avail the applicant. Although it is unnecessary to comment, having reviewed the relevant footage, I see little basis to criticise the conduct of the police. If other material does provide a basis for such criticism, it is a matter the applicant would need to raise in a different forum. 67 Ground 7 asserts, without detail, that there was some history between the applicant and Mr Jeffery and that the latter ‘had a vendetta’ against the applicant since he was a teenager. There was not a word of this before the Tribunal, and the 10 [2024] SASC 139 at [74]-[78]. -- 20 of 26 -- [2024] SASC 152 B Doyle J 19 contention was not developed before me. It lacks any evidential foundation and is not reasonably arguable. 68 In the course of the hearing, Ms Hanley-McClure advanced complaints pointing to asserted discrepancies concerning the ‘Notice to Owner of Detention of Dog’ given in respect of each dog (‘Detention Notices’). 69 She said that on the relevant forms under ‘Particulars of seizure’, the only box ticked was adjacent to the text ‘the authorised person reasonably believes that the dog is unduly dangerous’. She pointed out that neither the box adjacent the text ‘the person who owns or is responsible for the control of the dog is subject to a Prohibition Order under Division 3A’, nor the box adjacent to the text ‘the authorised person reasonably believes it necessary to detail the dog in order to ensure that an order under this Act for the destruction or disposal of a dog is carried out’, had been ticked. 70 Ms Hanley-McClure then submitted that this was to be contrasted with an ‘On Hold’ form filled out by the respondent on the same date which noted that the dogs were on hold with the RSPCA ‘pending prohibition order’. 71 Ms Hanley-McClure also relied on a note on the Detention Notices which reads: [i]f the dog was seized in order to prevent or stop it attacking, harassing or chasing a person or an animal or bird or because it is unduly dangerous, Council must, as soon as practicable, proceed to consider making an order in relation to the dog or apply to the Magistrates Court for an order in relation to the dog. If notice of an intention to make an order in relation to the dog has not been given, or an application to the Magistrates Court has not been made, within 7 days after the dog was seized, the dog must be returned to a person entitled to its return. 72 The answer to these submissions is that the boxes on the Detention Notices correspond to the various circumstances pursuant to which, under s 60(1) of the Act, an authorised person may seize and detain a dog. As the respondent submitted, perhaps additional boxes could have been ticked here, but there was no necessity to do so. Section 61(2) of the Act provides that if the dog was detained following seizure, it is necessary for the person who owns or is responsible for the dog to be given notice of the detention and, under s 61(4), if the dog was seized because it was unduly dangerous, the Council must, as soon as practicable, proceed to consider making an order or applying to the Magistrates Court for an order. It was only if the Council failed to do so that the dog had to be returned. 73 Here, as the respondent submitted, notice had been given to the applicant of the detention of the dogs when they were seized on 10 January 2024, and the Council had proceeded to consider making an order in relation to the dogs (the Prohibition Order) and notified the applicant of that fact as well. The obligation to return the dogs therefore did not arise. -- 21 of 26 -- [2024] SASC 152 B Doyle J 20 74 Ms Hanley-McClure also pointed to the fact that the ‘On Hold’ forms had two dates on them (10 and 11 January 2024). I cannot see any significance (as relates to the challenge to the Prohibition Order) in this discrepancy, if indeed it is one. 75 She also advanced submissions which took as their premise that the bases for seizure or detention under the Animal Welfare Act 1985 (SA) had not been complied with. The answer to that is that legislation contains a separate and independent regime. The dogs were seized and are now subject to the effect of a Prohibition Order under the Act. 76 In any case, none of these contentions about the lawfulness of the dogs’ seizure and detention ultimately go to the lawfulness or appropriateness of the Prohibition Order, which acts a separate preclusion upon the applicant possessing the dogs. None of these grounds are sufficiently arguable to warrant a grant of leave to appeal and were I to grant leave, I would reject the grounds of appeal. Grounds relating to the conduct of the matter in the Tribunal 77 Ground 1 makes an unparticularised complaint that extends to the Tribunal. Ground 14 also appears to impinge the Tribunal’s processes. In her oral submissions, Ms Hanley-McClure variously submitted that: • the applicant did not get to stand up for himself at the hearing and that Ms Hanley-McClure was ‘shut down’; • the applicant was ‘made a mug’ in the hearing and it was not fair; and • the applicant was prevented from speaking with her during the lunch break. 78 Having reviewed the transcript of the hearing, I do not consider those complaints to be properly founded. In respect of the first matter, which is also raised by Ground 9, the transcript does not suggest that the applicant sought to have Ms Hanley-McClure represent him before the Tribunal. Since she was there in a support role, it was not appropriate for her to speak, other than if she was to give evidence. The member certainly questioned the applicant about his position quite thoroughly but that was appropriate in seeking to understand his contentions and to provide him with an opportunity to respond to any reservations the member may have had about those contentions. 79 In relation to the member’s statement to the applicant that he should not speak to Ms Hanley-McClure over lunch, the statement made was a proper reminder to him that whilst he was giving evidence under cross-examination, he should not discuss the evidence with her (or others). When I directed Ms Hanley-McClure’s attention to the relevant part of the transcript, she said that it ‘wasn’t put to us like that’. This Court can only proceed on the basis that it was. -- 22 of 26 -- [2024] SASC 152 B Doyle J 21 80 Ground 8 asserts a connection between the Tribunal member and the counsel who appeared for the respondent in the Tribunal, who was not counsel for the respondent on the appeal. No complaint of this kind was raised before the Tribunal and no evidence of the connection was adduced before this Court. There is no reason to think that there is any connection of any kind between the two individuals which was required to be disclosed (if any existed at all), and I reject this ground as lacking foundation and as being not reasonably arguable. Grounds relating to the witness Samuel Fisher and/or Jezabelle’s vet 81 Ground 1 includes an unparticularised complaint in respect of Mr Fisher. In oral submissions, Ms Hanley-McClure drew attention to his statement having described Jezabelle as being on a lead. To the extent that ground 1 was driving at this issue, it is not made good. As was noted earlier in my summary of proceedings before the Tribunal, Mr Fisher’s original statement suggested his dog was on a lead. He corrected this in his evidence in chief. This is a relatively unremarkable occurrence and it is very difficult to see how, even if it bore on the reliability of Mr Fisher’s evidence as a witness, it alters the fact that on Ms Burgess’ account, both of the applicant’s dogs were off lead and engaged in conduct towards Jezabelle which the Tribunal was entitled to consider amounted to an attack. 82 Ground 4 complains that Mr Fisher was not the male who was present on the day of the incident. The effect of this complaint is that an imposter attended the Tribunal hearing in answer to the summons. There is no acceptable evidential foundation for such an alarming and surprising state of affairs. I reject it as unarguable. 83 Ground 5 is a complaint that Mr Fisher committed perjury by saying he rang his ex-partner who took him to the vet when, in fact, he rang police. There was no cross-examination of Mr Fisher, nor any submission made to the Tribunal, which would suggest anything turns on whether he rang one or both of the police or his ex-partner or in what sequence. 84 Ground 10 complains that all documents and pictures supplied by the vets and Mr Fisher’s ‘supposed evidence’ towards the case were false and had ‘nothing to do with the incident’ because they related to a previous health issue Jezabelle had which necessitated extensive surgery a few months prior to the day of the incident. 85 There was in evidence a report by Dr Mason, of Paws Galore Veterinary Centres, which described the emergency consultation he undertook of Jezabelle on 4 January 2024 and the surgery undertaken on 5 January 2024. Amongst other things, he reported that it appeared from the bite marks that she had been bitten by very large dog. Also in evidence were photographs labelled 9 January 2024 showing quite significant wounds and stitching to parts of Jezabelle’s head and upper body below the neck. Those photographs were attached to the affidavit sworn for the purposes of obtaining a warrant under s 25D of the Act. Ms Hanley-McClure submitted that the dates on the photographs could have been -- 23 of 26 -- [2024] SASC 152 B Doyle J 22 doctored. In essence her submission is that the photographs looked worse than the nature of the injuries described by the vet. That is debatable but in any event, there is no sufficient reason to speculate that evidence has been dishonestly fabricated. Mr Fisher’s sworn evidence was that the photographs reflected the injuries caused in the attack. There was no substantive challenge to his evidence, nor any challenge at all beyond the assertion that he was a ‘lying piece of shit’. Other grounds relating to the evidence or the facts 86 Ground 6 and Ground 11 are difficult to follow and were not meaningfully developed at the hearing. To the extent that they are intended to suggest confusion or doubt about which dogs were involved in the interaction with Jezabelle on 4 January 2024, they go nowhere because on the evidence led by the applicant, his two dogs were the dogs involved. Whether other witnesses used differing language to describe the colour of the dogs is not significant given that it is clear on all accounts that one dog advanced first and was more involved in the interaction with Jezabelle, and another arrived later. Both the applicant and Ms Burgess agreed that the dogs were Schutz Wow Wha and Mini Skip respectively. 87 Ground 13 complains of a false statement by the applicant’s neighbour. This appears to be a reference to a witness statement of Ms Leslie which, whilst consistent with the observations of other witnesses, does not appear to have been relied upon in any material way by the respondent or the Tribunal. Even if there were a basis to challenge it as false, the ground would not avail the applicant. 88 In oral submissions, Ms Hanley-McClure contended that the applicant was made out in the Tribunal to be a vicious dog breeder that breeds dogs to attack when, in fact, it was the other person’s dog that ‘pursued Damian’s witness, Samantha Burgess, as she was coming up to bring water to Damian and his dogs’. Ms Hanley-McClure claimed that the transcript supported the notion that Jezabelle had been coming towards Ms Burgess, but she was not able to point me to a passage that makes that proposition good. The evidence simply does not support that contention. Grounds potentially relevant to appropriateness of the Prohibition Order 89 To this point, the grounds that have been considered have related either to the processes of the respondent or the Tribunal or to matters which might go to the bases for making the Prohibition Order. For the reasons I have given, I am not persuaded that there is a proper basis to grant leave to appeal on any ground which would go to the process or reasoning by which it was concluded that the power to make the Prohibition Order was enlivened. 90 There is no reasonably arguable basis to disturb the findings which met the statutory criteria in question. In this case there, there was nothing in the evidence that gave rise to a need to consider whether s 59A(4) (or any defences to s 44) were -- 24 of 26 -- [2024] SASC 152 B Doyle J 23 engaged.11 Even if there was scope for debate about the characterisation of the conduct of Mini Skip as involving an ‘attack’ that would amount to an offence contrary to s 44, the finding that Schutz Wow Wha attacked Jezabelle at a time when the applicant was subject to a Control (Dangerous Dog) Order was sufficient to enliven the power to issue a Prohibition Order. The applicant’s argument that because Schutz Wow Wha had been trained effectively to detain another dog until his owner arrived (by latching onto its head) it did not involve an ‘attack’ within the meaning of the Act, is unmeritorious. It was rightly rejected. Indeed, the evidence of the applicant that the dogs acted as they were trained to was itself a factor supporting the exercise of any discretion to make the Prohibition Order. 91 It remains to consider whether there is any reasonably arguable ground for contending that the Tribunal was wrong in deciding that, the statutory criteria for doing so having been met, the preferable decision was to proceed to impose a Prohibition Order, and in the terms that were imposed, involving, as they did, a lengthy preclusion period, and the destruction of the dogs. 92 Ground 12 (relating to the RSPCA observations) and Ground 15 (relating to the possible benefit of the dogs to the applicant’s son) potentially relate to those questions. I do not consider the contentions associated with those grounds make out an error of a kind required to be established, having regard to the applicable ‘deferential standard’ of appellate review. 93 The Tribunal Reasons state that all the relevant material was considered. The RSPCA observations did not bear significantly on the question whether the Prohibition Order was appropriate, or the preferable content of that order. The observations suggested that the dogs had behaved acceptably with volunteers or staff but did not suggest that they were safely interacting with other dogs, which was the real behavioural issue with the dogs. The evidence of Mr Jeffery as to the difficulty in re-homing dogs such as these was unchallenged. As to the beneficial impact of the dogs on the applicant’s son, whilst not irrelevant, that consideration could not carry the day, and it was not at the forefront of the applicant’s submissions in the Tribunal in any event. The Tribunal came to what was described as a firm view that the evidence demonstrated that the applicant was not capable of responsibly looking after these dogs, having regard to his record. Given the applicant’s adherence to the view that the dogs behaved appropriately, and the lack of insight revealed by that, that view is understandable. 94 On Mr Fisher’s evidence, the conduct of Mini Skip towards Jezabelle may not have been particularly serious or harmful, but the fact is that the applicant had made no real attempt to comply with the requirements of the Control (Dangerous Dog) Order to which, for ostensibly good reasons, Mini Skip was subject. The conduct of Schutz Wow Wha is particularly troubling. More troubling is the applicant’s position that the dogs acted precisely as he had trained them. The conclusion that he was the proper subject of a Prohibition Order is not shown to 11 Cf Wilson v City of Onkaparinga [2024] SASC 139 at [95]-[115]. -- 25 of 26 -- [2024] SASC 152 B Doyle J 24 be erroneous. Sad as the consequences are for him, his son and the dogs, there is no basis for this Court to intervene. 95 In the end, I am not persuaded that the grounds that might relate to the appropriateness of the Prohibition Order, as distinct from whether the criteria for its making were established, are sufficiently arguable to justify a grant of leave to appeal. If I were to grant leave to appeal, I would dismiss the appeal in any event. Disposition 96 I would refuse leave to appeal. 97 I will hear the parties as to costs and any consequential or incidental matters. -- 26 of 26 --