Allen v Gold Coast City Council [2025] QCAT 555

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Allen v Gold Coast City Council [2025] QCAT 555 PARTIES: MICHELLE ALLEN (applicant) v GOLD COAST CITY COUNCIL (respondent) APPLICATION NO/S: GAR 041-25 MATTER TYPE: General administrative review matters DELIVERED ON: 17 December 2025 HEARING DATE: 14 November 2025 HEARD AT: Southport DECISION OF: Member Taylor ORDERS: The decision of the Gold Coast City Council dated 28 January 2025 to make a regulated dog declaration under s 94 of the Animal Management (Cats and Dogs) Act 2008 (Qld), more particularly a ‘dangerous dog declaration’ relative to a dog named ‘Honey’ (Registration number 962833) is confirmed. The decision of the Gold Coast City Council dated 28 January 2025 to make what purports to be a concurrent regulated dog declaration and destruction order under s 127A of the Animal Management (Cats and Dogs) Act 2008 (Qld) relative to a dog named ‘Honey’ (Registration number 962833) is set-aside and substituted with the following decisions: (a) There is no concurrent declaration and order in terms of Honey under s 127A of the Animal Management (Cats and Dogs) Act 2008 (Qld). (b) Honey is not subject to a destruction order as that term is used in the Animal Management (Cats and Dogs) Act 2008 (Qld). (c) Pursuant to s 131(3)(a) of the Animal Management (Cats and Dogs) Act 2008 (Qld), the Council must now return Honey to Michelle Allen as soon as practicable. -- 1 of 19 -- 2 CATCHWORDS: ANIMALS – VARIOUS STATUTORY PROVISIONS – REGULATION OF COMPANION ANIMALS – SEIZURE AND DESTRUCTION – DESTRUCTION – JUSTIFIABLE DESTRUCTION – where a young boy sustained serious injuries when he was riding his bike on the footpath and became entangled with a dog being walked on a leash on that same footpath – where the local authority declared that dog to be dangerous as a consequence of that event – where the local authority also made a destruction order in terms of the dog – where the dog’s owner did not press a challenge of the destruction order and otherwise accepted it as being valid - where the dog’s owner challenged the destruction order – where the dog had not been ‘seized’ by the local authority but rather was surrendered to the local authority by the dog’s owner - - where the local authority purported to make a ‘concurrent regulated dog declaration and destruction order’ as provided for under the legislation but failed to follow the express procedures therein and issued an information notice for the regulated dog declaration as well as a destruction order - where the there was no other history of the dog being dangerous or menacing – where the question was whether there was power to have made a destruction order in the absence of the dog having been seized – where the question was whether there was power to make a destruction order given the declaration notice had been issued – where there was otherwise no justification for the destruction order Acts Interpretation Act 1954 (Qld), s 14B Agricultural and Fisheries and Other Legislation Amendment Act 2024 (Qld), s 67 Agricultural and Forestry Legislation Amendment Act 2013 (Qld), s 49, s 51, s 53 Animal Management (Cats and Dogs) Act 2008 (Qld), s 60, s 61, s 89, s 90, s 94, s 95, s 126, s 127As 127AA, s 180, s 181, s 183, s 185A, s 186, s 187 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 18, s 19, s 20, s 21, s 24 Cutbush v Scenic Rim Regional Council (No 2) [2019] QCATA 167 Nguyen v Gold Coast City Council Animal Management [2017] QCATA 121 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 R v Allen [2020] QCA 233 Thomas v Ipswich City Council [2015] QCATA 97 Younger v City of Gold Coast Council [2025] QCAT 402 -- 2 of 19 -- 3 APPEARANCES & REPRESENTATION: Applicant: Mr O. Cook - Counsel instructed by Bespoke Legal Group Respondent: Mr N. Hatcher – Solicitor of Woods Hatcher Lawyers REASONS FOR DECISION Overview [1] Honey is an American Staffordshire dog. The Gold Coast City Council (the “Council”) has declared her to be a dangerous dog and simultaneously ordered her destruction. [2] Her owner, Mrs Allen, applied to this Tribunal for review of both those decisions seeking orders that they be set-aside. At the hearing she pressed only for a review of the destruction order. She did not further challenge the dangerous dog declaration. [3] She succeeded in her efforts to have the declaration order set aside. Given the way which the Council conducted itself in the leadup to making the destruction order, as the effective decision-maker on review I am not seized of any power under the Animal Management (Cats and Dogs) Act 2008 (Qld) (the “Animal Management Act”) to make a destruction order. Thus, it is not within the Tribunal’s jurisdiction to confirm the decision to give the destruction order, but rather the only outcome is that the decision must be set aside. However, if I am wrong about the relevant points of law, the outcome is the same. This is because, on the evidence as it was before me, there was no premise for a destruction order to be made. Relevant Facts [4] Mrs Allen is the registered owner of a dog named Honey. On 23 December 2024, at around 11 am Mrs Allen’s husband, Ronny Allen, was returning to their home after having taken Honey for a walk. He and Honey, together with their other dog named Jaan, were on the footpath of the street outside their house. [5] At this same time, an eight-year-old boy, whom I will refer to in an anonymised manner as AYB, was out on the same street riding his bike, but at the time in issue he was riding on the footpath and came up behind Mr Allen and his dogs. What happened next is that the dogs and AYB became entangled with Honey biting AYB on his leg causing a significant injury which required AYB to receive substantial medical treatment. (the “Incident”) It is a matter of contention as to how the Incident occurred. There were no persons who witnessed the Incident as it occurred other than Mr Allen and AYB. [6] Mr Allen’s description is that:1 (a) he had the dogs on their leashes on his right-hand side between the footpath and the wall of his house; 1 Ex 2 and as described by Mr Allen in oral testimony. See also his statement given to the Council shortly after the Incident, a copy of which appears in Ex 1 at page 31. The italicised words are as they appear in his statement to the Council. -- 3 of 19 -- 4 (b) he did not hear AYB coming up behind him; (c) the first he knew of his presence was when AYB tried to pass him and his dogs on his right-hand side between the footpath and the house; (d) in the process of doing so AYB’s bike became entangled with the dogs’ leashes; (e) Honey “got spooked and startled” and bit AYB on the leg; (f) Mr Allen pulled both dogs back to separate them from AYB. [7] AYB’s description is that:2 (a) He “saw the man and dogs from afar”; (b) He “rode slowly up to them and said “excuse me”, then the dog owner moved over onto the grass”; (c) “one dog was sniffing a tree, the other dog was looking at me, then lunged at me”. [8] Following a complaint to the Council about the Incident, the Council’s relevant officer, Mr Dean Rogers, investigated the circumstances of it. Following contact by Mr Rogers, Mr and/or Mrs Allen attended at the Council’s Pound and surrendered Honey pending the outcome of the investigation.3 There is no material before me to show that at any time the Council ‘seized’ Honey, as that term is used in the Animal Management Act, whether acting under s 125 of the Act or otherwise with the benefit of a warrant. [9] As is relevant to this proceeding, during that investigation the Council issued a Proposed Regulated Dog Declaration in terms of Honey, more particularly a dangerous dog, such being done on 8 January 2025.4 As she was entitled to do, on 9 January 2025 Mrs Allen made submissions to the Council as to why the declaration should not be made.5 [10] On 28 January 2025, Mr Rogers responded to those submissions. He informed Mrs Allen that he saw no reason to change the proposed declaration, and that he recommended that the declaration of Honey as a dangerous dog be confirmed. Simultaneously, he did two more things, namely: (a) He issued a ‘Regulated Dog Declaration Information Notice’ declaring Honey to be a dangerous dog, shown thereon as having been issued under s 89 and 95 of the Animal Management Act, such being accompanied with a document entitled “Conditions for Keeping Declared Dangerous Dog” (the “Dangerous Dog Declaration”);6 and (b) He issued a ‘Destruction Order Information Notice’, shown thereon as having been issued under s 127A of the Animal Management Act, effectively ordering the destruction of Honey (the “Destruction Order”).7 2 Ex 14 para 15. The italicised words are as they appear in AYB’s statement given to the Council. 3 Ex 13. 4 Ex 1 at pg 41. 5 Ex 1 pg’s 86 to 88. 6 Ex 1 pg’s 88 to 92. 7 Ex 1 pg’s 93 and 94. -- 4 of 19 -- 5 [11] The reasons given by Mr Rogers in each of those documents was identical. The Destruction Order did not contain any reasons for ordering destruction beyond the reasons given for declaring Honey to be dangerous. [12] Mrs Allen then sought internal review of both the Dangerous Dog Declaration and the Destruction Order.8 In a document shown before me to be dated 6 March 2025, the Council issued its response to the internal review application, such being to confirm what was described therein as being the “concurrent dangerous dog declaration and destruction order for the dog ‘Honey”. In giving reasons for same, the author of that response noted what appears to be acceptance of AYB’s version of the Incident. 9 (the “Decision”) [13] What then followed is that Mrs Allen applied to this Tribunal for a review of the Decision seeking the following outcome:10 (a) that Honey is not declared dangerous but rather only as menacing, and that the Destruction Order is not proceeded with; in the alternative (b) only that the Destruction Order is not proceeded with. [14] It is against those relevant facts that the proceeding came before me for hearing and determination. At the commencement of the hearing, via her Counsel Mrs Allen informed me that she no longer pressed for review of the Dangerous Dog Declaration and merely sought to have the Destruction Order set aside. [15] After hearing the evidence and argument by way of oral closing submissions, I sought written submissions on a matter of law arising on the material as it was before me, such which I expressed as this question: What is the effect in this proceeding of s 95(2) and s 127A(1)(b) and (4) of the Animal Management (Cats and Dogs) Act 2008 (Qld) given the fact that the respondent issued a Regulated Dog Declaration Information Notice under s 95 of the Act and a Destruction Order Information Notice under s 127A of the Act. [16] Those submissions were received generally in accordance with the timeline I set. The Issue [17] Whilst the arguments and evidence presented before me were somewhat broad in nature, the issue was a narrow one, namely – should the Destruction Order be confirmed or set-aside. That turned on effectively two questions: (a) Is it open for me, as the effective decision-maker, to make a concurrent destruction order under s 127A of the Animal Management Act? (b) If the answer to that was yes – should such an order be made? 8 Ex 1 pg 95. 9 Ex 1 pg’s 147 to 158. 10 There is some confusion on the material before the Tribunal because Mrs Allen’s Application for Review cites a decision dated 4 March 2025. There was however no contest before me that the Decision was not the decision under Review. The difference in the dates was not explained. -- 5 of 19 -- 6 Relevant Law [18] The determination of that issue turns on the interpretation of relevant provisions of the Animal Management Act, such which I refer to in the paragraphs that follow here. [19] A regulated dog means a declared dangerous dog, a declared menacing dog, or a restricted dog.11 The relevant part of that in this proceeding is where the dog is declared to be dangerous under s 94 of the Act.12 [20] A dangerous dog declaration may be made if a dog:13 (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 another animal, seriously attack, or act in a way that causes fear to, the person or animal. [21] Under the Act, ‘seriously attack’ means, as is relevant here being in relation to a person, attack the person in a way causing bodily harm, grievous bodily harm, or death.14 [22] If a local government proposes to make a regulated dog declaration, it must first give to the owner of the dog a proposed declaration notice.15 The local government must then consider any written representations and evidence submitted by the dog owner in response thereto.16 [23] If the local government is satisfied that a ground for making the declaration still exists, it must make the regulated dog declaration.17 What then follows is that as soon as practicable after deciding to make the declaration, the local government must give the owner of the dog the subject of the declaration an information notice about the decision.18 The decision that the dog is a regulated dog takes effect on the day the owner of the dog is given the information notice, or any later day of effect stated in the information notice.19 [24] However, as relevant in this proceeding, the local government must not give an information notice if an authorised person has made a destruction order under s 127A of the Act in relation to the dog.20 That reference to s 127A is to the power afforded a local government to make a ‘concurrent regulated dog declaration and destruction order’, such which is found in Chapter 5 Part 4 of the Act, that part expressly being applicable in circumstances where the authorised officer has, acting under s 125 of the Act or a warrant, seized the dog.21 11 Animal Management Act s 60. 12 Ibid s 61(a). 13 Ibid s 89(2). 14 Ibid s 89(7). 15 Ibid s 90(1). 16 Ibid s 94(1). 17 Ibid s 94(2). 18 Ibid s 95(1). 19 Ibid s 95(3). 20 Ibid s 95(2). My emphasis by underlining. 21 Ibid s 126. -- 6 of 19 -- 7 [25] Section 127A applies if a local government has made a regulated dog declaration under s 94 of the Act for the dog but has not given the owner of the dog an information notice under s 95 of the Act about the decision to make the declaration.22 It affords the authorised person a discretion to make a destruction order for the dog.23 [26] As soon as practicable after deciding to make the destruction order for the dog under s 127A, the authorised person must serve the destruction order on, as relevant in this proceeding, the registered owner of the dog.24 That destruction order must include or be accompanied by a single information notice about the decision to make the regulated dog declaration under s 94(2), and the decision to make the destruction order.25 [27] The references in the preceding paragraphs to an ‘information notice’ is to that term as it is used in the Act and defined therein to mean, as is relevant in this proceeding, a notice stating the ‘decision’ and the ‘reasons for it’.26 [28] A decision to make a regulated dog declaration is a decision that is open for the dog owner to apply to the local government to have internally reviewed, such which must occur before an application to this Tribunal for external review is made.27 Upon completion of the internal review process, an internal review decision is given (the “Review Notice”).28 [29] There is however an expressly different provision to deal with a decision of a ‘concurrent regulated dog declaration and destruction order’. Where an interested person is given an information notice under s 127A(4) about a decision to make a regulated dog declaration and a decision to give a destruction order for a dog, the application to be made as a general review application is one for both decisions, although the internal review process is still to be being conducted in the same manner as provided for other general review applications, such which would lead to a Review Notice.29 [30] If the Review Notice confirms the original decision, for the purpose of an application for external review the original decision is taken to be the internal review decision. If the Review Notice amends the original decision, for the purpose of an application for external review the original decision as amended is taken to be the internal review decision. 30 Upon receipt of the Review Notice, the dog owner may then apply to this Tribunal for review of that decision.31 [31] The purpose of the external review, arising under s188 of the Animal Management Act in conjunction with s 17 to s 20 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the “QCAT Act”), is to produce the correct and preferable decision. It is conducted by way of a fresh hearing on the merits.32 In effect, as the 22 Ibid s 127A(1). My emphasis by underlining. 23 Ibid s 127A(2). 24 Ibid s 127A(3). 25 Ibid s 127A(4). My emphasis by underlining. 26 Ibid Schedule 2. 27 Ibid s 180, s 181(2), and s 183 28 Ibid s 186, s 187. 29 Ibid s 185A. 30 Ibid s 186(4) and (5). 31 Ibid s 188. 32 QCAT Act s 20(2). -- 7 of 19 -- 8 Member constituting this Tribunal for the purposes of the review, I stand in the shoes of the decision maker of either the original decision or the internal review decision, dependant on whether s 186(4) or s 186(5) of the Animal Management Act applies. [32] I am not concerned with the process by which the decision was reached and whether any error was made in any of the steps taken by the decision-maker. Accordingly, the role of the Council is not to advocate for the correctness of the decision, but rather to assist me in my task of being required to make the correct and preferable decision.33 In doing so the Council is required to refer to the material that was before its decision- maker during the process that led to this hearing, and to have its witnesses (if any) confirm their previously filed written statements and make them available for cross- examination, but it may also present other evidence during the hearing by way of other witnesses.34 [33] Following consideration of the relevant material, I may confirm or amend the decision, set aside the decision, and substitute my own decision, or set aside the decision and return the matter for reconsideration by the decision-maker.35 Discussion on the Issue Is it open for a concurrent destruction order under s 127A of the Animal Management Act to be made? [34] The evidence of Mr Rogers in the hearing before me was that he personally served both the Dangerous Dog Declaration and the Destruction Order on Mrs Allen by hand delivery to her. In my opinion this gives rise to two fundamental issues in this proceeding, the second being the subject of my request for written submissions to the parties at the conclusion of the hearing. Honey was not ‘seized’. [35] Firstly, as I noted it in paragraph [8] herein, there is nothing before me to show that at any time the Council seized Honey. To the contrary, Honey was surrendered to the Council by Mr and Mrs Allen. On that basis the provisions of Chapter 5 Part 4 of the Animal Management Act, such being where the provisions enabling the making of a destruction order are found, have not been enlivened. The act of seizing Honey is a pre-condition to the exercise of any power to make any destruction order. [36] As Brennan CJ of the High Court observed in Project Blue Sky Inc v Australian Broadcasting Authority (“Blue Sky”) in terms of the order of steps to be taken in the exercise of a statutory power: 36 A provision which directs the manner of the exercise of a power is quite different from a provision which prescribes an act or the occurrence of an event as a condition on the power - that is, a provision which denies the availability of the power unless the prescribed act is done or the prescribed event occurs. In one case, power is available for exercise by the repository but the power available is no wider than the direction as to the manner of its exercise permits; in the other case, no power is available for exercise by the repository unless the condition is satisfied. A provision which prescribes such a condition has 33 QCAT Act s 21. 34 QCAT Practice Direction No. 3 of 2013 – para 5(d). 35 QCAT Act s 24(1). 36 (1998) 194 CLR 355 at 373, [37]. My emphasis. -- 8 of 19 -- 9 traditionally been described as mandatory because non-compliance is attended with invalidity. A purported exercise of a power when a condition has not been satisfied is not a valid exercise of the power. [37] Noting the emphasis I have given to this passage from his Honour’s reasons, for this simple reason it is now not open for me as the effective decision-maker to make a destruction order of any nature. There is absence of jurisdiction to make such an order. The Council issued the Dangerous Dog Declaration [38] As I noted it in paragraph [10] herein, the Council issued the Dangerous Dog Declaration as a document separate from the Destruction Order, albeit that both documents were delivered to Mrs Allen simultaneously as Mr Rogers confirmed in his oral evidence. [39] The Dangerous Dog Declaration included a note in its heading that it was issued with reference to ss 89 and 95 of the Animal Management Act. It also contained this notation: You are now required to comply with the requirements for keeping the regulated dog as outlined in the attached conditions. [40] As per the provisions of s 95(3) of the Animal Management Act, that declaration and the requirements to comply with those conditions commenced on the day it was handed by Mr Rogers to Mrs Allen. [41] But what was also done is the giving of the Destruction Order. That document included a note in its heading that it was issued with reference to s 127A of the Act. [42] There are number of fundamental problems with the giving of the Destruction Order, it being what I am being asked to either affirm, in effect by making the decision afresh, or to set it aside, simultaneously with the giving of the Dangerous Dog Declaration. [43] The first is that the express provision of s 127A(1) are that the section applies in the circumstances where the Council had made a regulated dog declaration under s 94 of the Act in terms of Honey but had not given Mrs Allen an information notice under s 95 of the Act. Such is consistent with the express provisions of s 95(2) of the Act which states that the Council must not give an information notice under s 95(1) of the Act37 if the authorised person has made a destruction order under s 127A in relation to Honey. In turn all of that is consistent with the express provisions of s 127A(4) that the destruction order must include or be accompanied by a single38 information notice about the decision to make the regulated dog declaration under s 94(2) or the Act and the decision to make the destruction order. Such is the express nature of a ‘concurrent regulated dog declaration and destruction order’. [44] But given that the Council did issue the Dangerous Dog Declaration under s 95 of the Act, the discretion to make a concurrent order under s 127A is lost. The information notice under s 95 has been issued and, like that which I just discussed concerning the enlivening of the power to issue any destruction order in the absence of a dog having been seized, the power to issue a concurrent order has not been enlivened. Accordingly, once again there is no jurisdiction of which this Tribunal is seized on review, even when considering the issue afresh, to make a concurrent order and so 37 My emphasis. 38 My emphasis. -- 9 of 19 -- 10 confirm the original order as made. The only outcome is that the Destruction Order should be set-aside. [45] In the written submissions given in response to my directions for same on this issue, this is effectively the argument presented by Mrs Allen’s Counsel.39 [46] The counterargument presented by the Council’s Solicitor in his written submissions is that there is no issue with the Dangerous Dog Declaration having been issued. He says the Destruction Order remains an order under s 127A of the Act because it was served concurrently with the Dangerous Dog Declaration. He also argues that the Destruction Order includes or comprises a single information notice which refers to both decisions, those being to make the declaration of a dangerous dog and to order its destruction. [47] I do not accept those arguments as being correct. The fact of giving the two separate notices concurrently does not make it the giving of a concurrent regulated dog declaration and destruction order. Such is entirely at odds with the express requirements of the legislation. [48] The Destruction Order document makes no reference to a decision to make a regulated dog declaration under s 94(2) of the Act. At its highest it: (a) refers only to the fact that Honey is a regulated dog of the type ‘Dangerous Dog’; and (b) that the authorised officer is acting under s 127A to issue a destruction notice.40 [49] It also seemingly seeks to make immaterial the express mandatory words of s95(2) of the Act that the Council must not give an information notice under that provision when a destruction order under s 127A has been made. [50] I prefer the argument presented by Mrs Allen’s Counsel. I consider it to be the correct one. Returning once again to the seminal decision of the High Court in terms of statutory interpretation, namely Blue Sky, it is consistent with the reasoning of McHugh, Gummow, Kirby, and Hayne JJ therein wherein their Honours expressed these observations:41 An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there 39 Submission as received via e-mail 28 November 2025. See also his Reply submissions filed 10 December 2025. 40 I pause here to also observe the apparent confusion that seemingly has existed in the Council’s administration of this aspect of the Act where the Destruction Order form informs the recipient of the right to request a review of what is stated therein to be the ‘regulated dog declaration’. 41 Supra, [91] to [93]. Footnotes omitted. My emphasis. -- 10 of 19 -- 11 is not even a ranking of relevant factors or categories to give guidance on the issue. Traditionally, the courts have distinguished between acts done in breach of an essential preliminary to the exercise of a statutory power or authority and acts done in breach of a procedural condition for the exercise of a statutory power or authority. Cases falling within the first category are regarded as going to the jurisdiction of the person or body exercising the power or authority. Compliance with the condition is regarded as mandatory, and failure to comply with the condition will result in the invalidity of an act done in breach of the condition. Cases falling within the second category are traditionally classified as directory rather than mandatory. In Pearse v Morrice, Taunton J said' 'a clause is directory where the provisions contain mere matter of direction and nothing more". In R v Loxdale, Lord Mansfield CJ said "[t]here is a known distinction between circumstances which are of the essence of a thing required to be done by an Act of Parliament, and clauses merely directory". As a result, if the statutory condition is regarded as directory, an act done in breach of it does not result in invalidity. However, statements can be found in the cases to support the proposition that, even if the condition is classified as directory, invalidity will result from non-compliance unless there has been "substantial compliance" with the provisions governing the exercise of the power. But it is impossible to reconcile these statements with the many cases which have held an act valid where there has been no substantial compliance with the provision authorising the act in question. Indeed in many of these cases, substantial compliance was not an issue simply because, as Dawson J pointed out in Hunter Resources Ltd v Melville when discussing the statutory provision in that case: "substantial compliance with the relevant statutory requirement was not possible. Either there was compliance or there was not." In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood in criticising the continued use of the "elusive distinction between directory and mandatory requirements" and the division of directory acts into those which have substantially complied with a statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to "the language of the relevant provision and the scope and object of the whole statute". [51] This reasoning, and particularly those parts to which I have given emphasis, shows us that the proper focus must be on the question of ‘purpose’, as relevant here being what the purpose was for requiring the Council, should it be going to issue a concurrent declaration and destruction order, not to issue the information notice under s 95 of the -- 11 of 19 -- 12 Act. The answer to that question can be found in the Explanatory Notes to the Bills by which these provisions were introduced and later amended.42 [52] The relevant part the subject of this proceeding was enacted via the Agricultural and Forestry Legislation Amendment Act 2013 (Qld) s 49 whereby s 95(2) was inserted mandating that the local government must not give the owner of the dog a notice of the regulated dog declaration decision, such expressed as being required to ensure consistency with the new s127A. By way of s 51 of that amendment legislation s 127A was inserted into the Animal Management Act. As stated in the Explanatory Notes to the Bill by which the amendment legislation was introduced into Parliament, such was required to ensure the policy objective of enabling both types of decision to be reviewed together with the Explanatory Notes including a reference to the destruction order including or being served with a ‘combined information notice’. [53] Such assists in meeting the purpose as outlined elsewhere in the Animal Management Act in terms of review proceedings, such being found in the s 185A of the Act, it having been introduced by way of s 53 of the amendment legislation. It is entitled ‘Internal review of concurrent regulated dog declaration and destruction order’ such which provides for internal review of both decisions at the same time. [54] Such is the premise for the arguments raised by the Council’s Solicitor in his reply written submissions arguing against the points being made by Mrs Allen’s Counsel.43 Whilst there is some strength in those arguments they do not take the issue to a point where it may be accepted that the relevant provisions which require the information notice under s 95(2) not to be issued are directory only, and as such they may be ignored and the concurrent giving of the Declaration Notice and the Destruction Order can be treated as permissible. [55] This is because it fails to recognise nor give meaning to the subsequent technical amendments to section 127A, such being made by s 67 of the Agricultural and Fisheries and Other Legislation Amendment Act 2024 (Qld), the relevant provisions having commenced on 28 August 2024.44 Those amendments were to refine the express words of inter-alia s 127A(1)(b) to state that the local government ‘has not given the owner of the dog the information notice under s 95’ in contrast to the 2013 amendment which were simply ‘does not give the owner notice of its decision under s 95’. They were also to amend the words of s 127A(4) to prescribe the giving of a ‘single information notice about both decisions’, such being in stark contrast to the 2013 provisions which provided for ‘combined notices’, the latter being effectively what the Council did in terms of Honey. [56] On any reading of these amendments, Parliament’s clear intention was to place some paramountcy on the absence of an information notice under s 95 of the Act. The question that must then be asked is – why? [57] It seems to me that the intention was to provide certainty and clarity to the dog owner, in this case Mrs Allen. Having been given an Information Notice under s 95 as to the declaration of Honey as a dangerous dog, moreover and critically being one accompanied by a set of very detailed conditions as to the manner in which she must 42 Such is permissible as provided for under s 14B of the Acts Interpretation Act 1954 (Qld). 43 See the Council’s written reply submissions received in this Tribunal via e-mail on 15 December 2025. 44 The reference to ‘technical amendments’ is as it appears in the Explanatory Notes to the Agricultural and Fisheries and Other Legislation Amendment Bill 2023 re Clause 67 of the Bill. -- 12 of 19 -- 13 keep Honey, it would ordinarily only lead to confusion to simultaneously be given an order that Honey is to be destroyed. Such are not just incompatible they are entirely inconsistent with each other. [58] As it was expressed in the Explanatory Notes for the 2023 Bill which became the 2024 amendments, albeit related to appeals and so not directly on point to this issue but still an explanation which is of assistance in answering why: Providing clarity … will also reduce emotional uncertainty experienced by the dog owner. [59] Having been told that her dog was a declared dangerous dog and the extensive and detailed conditions under which she was to then keep Honey, for Honey to also be the subject of a destruction order is to provide emotional uncertainty for Mrs Allen. It is to leave the words of Parliament in the amending enactment with no purpose. It would be to make provisions enacted by way of intentional and very precise technical refinement as directory rather than mandatory. [60] In my opinion, to adopt such an approach, it being the one submitted by Council that I should adopt, would be inconsistent with the purposes of the amendments and so not an approach that this Tribunal should adopt. Given those very precise amendments to the legislation enacted by Parliament, and given the Council issued the Dangerous Dog Declaration under s 95 of the Act, it is now not open for a concurrent destruction order and declaration to be made under s 127A of the Act. As such, the decision I must get to, it being the one I made, is that the decision to issue the Destruction Order as one under s 127A of the Animal Management Act must be set aside. Should a destruction order be made under s 127A? [61] If I am wrong in terms of that discussed in the preceding paragraphs, for the reasons I discuss in the following paragraphs I would not have confirmed the Destruction Order in any event. The occurrence of the Incident [62] At the core of this proceeding is the occurrence of the Incident. But there is an inconsistency between the evidence of the only two persons who witnessed it occurring, namely Mr Allen the handler of Honey at the time, and AYB the child victim. [63] I prefer the evidence of Mr Allen as to how it occurred. I do not accept the evidence of AYB as being accurate. I consider his evidence to be flawed. Having read what is said to be his ‘statement’ given to the Council following the Incident,45 and then listening to him giving oral evidence in the hearing, I was left with the firm view that: (a) what is recorded as being what he had to say in the written statement are not his words but rather the interpretation of his words by the person taking and/or preparing the statement document, such which I infer was Mr Rogers, the Council Animal Management Inspector. I draw this inference from the facts that he was the one who conducted the investigation into the Incident, and that he also signed as witness to AYB’s declaration; and 45 Ex 14. -- 13 of 19 -- 14 (b) he had been coached in terms of what to say in giving his oral evidence, such being the opinion I held, and expressed to the legal representatives before me during the hearing, after having heard directly from AYB during the hearing. When I asked him to tell me in his own words what occurred in terms of the Incident, his answer was almost verbatim with the words in the statement in answer to effectively the same question, such having been given almost 10 months prior. [64] As the investigating officer, Mr Rogers should not have been the person taking oral statements of evidence and then formulating them into a written document. Conducting the investigation in this manner is to leave it flawed in that his perceptions of the relevant circumstances, such which would have developed as he learned more about the Incident, could easily become skewed in terms of what actually occurred and so influence, even subconsciously, his choice of words in writing down that which it is asserted AYB said during the interview. On my reading of the written statement, it seemed to me that some of the words used are not that would ordinarily be used by an 8-year-old child.46 [65] AYB then used similar words when he was answering my question as to what occurred that day. This is why I considered he was coached for the purposes of giving oral evidence in the hearing. When responding to my comment about AYB seemingly having been coached in terms of giving his oral evidence, at its highest the Council’s Solicitor’s submission was in words to the effect of: His repetition today does not reduce the weight of his evidence. If it was correct then, why should it not be correct now. [66] The difficulty I have with that submission is that I do not accept his evidence as being correct either at the time of the hearing or when he gave his statement, and moreover I do not consider what he had to say, either as recorded in the written statement of given orally, as being his words. There are two reasons why this is so. But before I express those reasons herein, I make this brief comment. [67] When it comes to considering the evidence of a child, particularly a young child, the observations of the Queensland Court of Appeal in R v Allen must always be recalled, namely:47 (a) When discussing the process engaged in when taking a child’s evidence: … The larger purpose is to increase the likelihood that the child’s evidence is accurate. This is done by ensuring that the initial questioning is not only done in a setting that reduces stress, a condition that does not enhance reliability, but also that it is done by police officers who have received training in how to question children in a way that is calculated to reduce the risk of inaccurate or false accounts. One of the most obvious features of that aspect of the process is the care taken by trained interviewers to avoid leading questions. There are other features which frequent readers of 46 For example, “I saw the man and dogs from afar …”, and earlier when asked if he has sought medical attention, his answer as it is recorded in the written statement was “Yes, an ambulance was called. I was taken to hospital and had surgery later that afternoon”, such being the construction of a sentence that an adult would make not an 8-year-old child. 47 [2020] QCA 233, per Sofronoff P at [20] and [21], with whom Morrison JA and Jackson J agreed at [63] and [64] respectively. -- 14 of 19 -- 15 transcripts of such interviews notice, such as the use of extremely open questions. (b) When discussing the reliability of the evidence of young children: … it is well understood and accepted that the factors taken into account to assess the reliability of the evidence of young children are not the same as those affecting the reliability of the evidence of adults. A child may not view events with the understanding of an adult, may be unable to recall important details that would be prominent in an adult’s recollection and may lack the linguistic ability to recount events or to explain them. Immaturity may lead a child into avoidance techniques when being questioned. Most importantly, as everyone who has any experience of young children knows, although in common with adults, the recollection of a child will be more accurate close in time to the relevant events, a very young child’s memory of events tends to fade very quickly. [68] Firstly, there is the use by the Council of a template for witness statement, such which has been previously criticised by this Tribunal in Younger v City of Gold Coast Council.48 Whilst the nature of the criticism by the learned Member therein is not applicable in this proceeding, I add to that criticism here by noting that to the extent it is a template used to take a statement from a child it effectively directs the child to specific asserted facts and circumstances asking a question in a manner that raises uncertainty as to a child’s ability to understand the nature and effect of what he is being asked and what he may answer. For example, it includes a declaration that the child witness has been made aware that anything he says or provides maybe used as evidence, and that the child is making the statement his own free will. It is entirely unclear on the face of the document as to whether an eight-year-old child does understand what that means. It also, somewhat strangely when it comes to being evidence of an eight-year-old, asks the witness to declare whether they are currently under the influence of any alcohol or drugs that may affect the way the child answers the questions. It is highly unlikely that a child, particular a young one, would understand the question nor know how to answer this in any proper and correct manner. [69] When considering the comments of the Court in that first passage I just noted, the apparent line of questioning as expressed in the template appears to direct the young child to a very specific line of thought which has the potential to lead the child to give answers which he/she thinks need to be given rather than of the fact that he/she knows it to be. a particular line of thinking. [70] It also leaves open the possibility, as I have already mentioned appears to be the case here, that the answers being recorded are expressed in the manner the taker of the statement is understanding what is being said, thus leading to the potential that an inaccurate context may be placed on the words or may be constructed from the answers recorded, that person being focussed on investigating that which is said to have occurred rather than having an open mind in finding out what occurred. The nett effect is that such a process produces a written statement that is of little to no weight, and in turn of limited probative value. [71] Secondly there is the issue of the extent to which AYB recounted the events in his oral testimony almost verbatim to what is recorded him having said when he gave his 48 [2025] QCAT 402, [56]. -- 15 of 19 -- 16 written statement. Recalling the second passage I extracted earlier from what the Court observed, AYB’s recounting of the events in his oral evidence almost verbatim in terms of that which was recorded in the written document is at odds with the Court’s observation that a young child’s memory of events tends to fade very quickly. It was surprising to me that AYB could be so specific in the choice of his words in answering my question of him. This is why I consider he was coached. [72] For completeness I should also make this observation before leaving this issue. Whilst it might be thought that the Court’s comments about the recollection of a child being more accurate close in time to the relevant events would suggest that AYB’s recorded answers in the statement document should be accepted as correct at the time and as such having probative value, thus seemingly a premise for the Council’s Solicitor’s submissions about accuracy then and so why not now, the comments I made earlier herein about the probative value of the answers as recorded within a template statement document, and the manner of questioning a child, are sufficient to discount the relevance and weight of that observation in this proceeding. [73] There is however another reason for preferring the evidence of Mr Allen. His account of what occurred is supported by the evidence of a veterinarian who gave evidence for Mrs Allen, namely Dr Sirach, where he expressed this opinion in one of his written statements tendered:49 Regarding the recent incident involving a bite, my understanding is that the dog was approached suddenly from behind by a child on a bicycle. Contact was made with Honey’s lead or collar, prompting a startled, reactive response that resulted in a bit. The dog was pulled away immediately, which led to multiple longitudinal lacerations. As an experienced emergency veterinarian and small animal surgeon, I have treated hundreds of dog bit wounds resulting from dog bites and attacks. Based on the bite pattern and my knowledge of canine behaviour, this incident appears to be a reactive and fear-based response – not a premediated or aggressive attack. The injuries described are inconsistent with the characteristics of a true aggressive dog attack, which typically involves multiple puncture wounds, significant bruising, and tearing caused by biting and shaking. These were notably absent in this case. [74] Whilst his opinion is prefaced with reference to what he was told, it does not discount the probative value of his opinion which follows. The opinion has the effect of giving weight to what he was told as being accurate. This led me to prefer the evidence of Mr Allen over that of AYB as to a correct account of what occurred on 23 December 2024 because what was opined by Dr Sirach gives plausibility to Mr Allen’s recounting of the Incident. In contrast, AYB’s recounting lacks plausibility because a bite arising from a dog ‘lunging’ at him would have resulted in the manifestation of markings ordinarily expected from a dog attack that Dr Sirasch stated were not present. [75] Moreover, it is on my reading and understanding of what Dr Sirach stated therein and effectively affirmed in his oral evidence that it may readily be found that Honey did not ‘attack’ AYB in a manner consistent with the ordinary meaning of that word. Her actions were reactive to the circumstance of being, in Mr Allen’s words as I note them in paragraph [6] herein ‘spooked and startled’ by AYB and his bike becoming 49 Ex 7. -- 16 of 19 -- 17 entangled with her leash. It also leads to the finding that the injury sustained by AYB was not such as to a ‘dog bite’ but the result of the interaction between AYB, Honey, and Mr Allen responding immediately to pull Honey out of what may readily be described as ‘the mallee’ which unfolded when AYB rode up behind Mr Allen and Honey and then attempted to pass between them. [76] What ultimately that leads to is the question as to why, in the circumstance of the Incident as it occurred, should the discretion to make a destruction order be exercised and in turn the order made? The answer to that question must be – No. The reasons for this are as follows. [77] In the more recent decisions of the Appeal Division of this Tribunal the approach applied in addressing that question is to consider whether the dog could be controlled taking into consider the threat, or likely threat, to the safety of other animals or to people by attacking them or causing fear posed by the dog.50 As it was expressed by the Appeal Tribunal in Nguyen v Gold Coast City Council Animal Management:51 Determining whether a dog can be controlled will require a consideration by a decision maker of a range of matters which might include: a) The relevant history of the behaviour of the dog giving rise to consideration of the making of a destruction order; b) Any other relevant history of the behaviour of the dog including the circumstances giving rise to the declaration that the dog is a regulated dog; c) The current behaviour of the dog including whether the behaviour of the dog has been, and/or could be, modified through appropriate training; d) The arrangements for the dog at its place of residence including the security of any enclosure and whether any interaction by the dog with persons, including household members and other persons entering upon the property, poses a threat of harm to such persons; e) The risk the dog poses to community health or safety including the risk of harm to people and other animals outside the place of residence of the dog; f) Compliance by the owner of the dog with any permit conditions imposed as a result of the dog being declared a regulated dog; g) Whether the owner of the dog demonstrates insight into, and understanding of, the dog’s behaviour and has acted appropriately to mitigate any risk posed by the dog to people or animals; h) The rights of individuals, including the owner of the dog. [78] Given that which I said about the way the Incident occurred and my acceptance of the fact that Honey’s actions were reactive, in my opinion it suffices to consider only (a), 50 See Cutbush v Scenic Rim Regional Council (No 2) [2019] QCATA 167 which effectively approved the approach taken in Nguyen v Gold Coast City Council Animal Management [2017] QCATA 121, divergent from that which was previously applied in the Tribunal – see eg in Thomas v Ipswich City Council [2015] QCATA 97. 51 Supra, [32]. -- 17 of 19 -- 18 (b), (e), and (f) therein, such which can be sufficiently disposed of by reference to the following. [79] The evidence of a Dr Day, an Animal Behaviour Veterinarian,52 as well as that of other veterinarians, namely Dr Sirach,53 and Dr Rigley,54 all attest to the behaviour of Honey as being commendable, as well as the ability of Mrs Allen to be able to effectively control Honey. None of this was in any way challenged by competing evidence put before me by the Council in terms of its investigation or otherwise in terms of its role in assisting me to reach the correct and preferable decision. [80] But there is one other compelling aspect of this proceeding that cannot be overlooked. That is the fact that Honey is, and will remain, a declared dangerous dog. That of itself carries with it two critical features which loom large in the issue of the exercise of the discretion to make a concurrent destruction order. Firstly, it is and will remain incumbent on Mrs Allen to comply with the requirements for keeping Honey, such which she has given sworn evidence of that she will comply, such which demonstrated to me her insight into the circumstances Honey is now in and the burden she must now meet to manage, control, and keep Honey.55 Secondly, there is the fact that given the relatively recent amendments to the Animal Management Act with the introduction of s 127AA, given Honey is and will remain a regulated dog, if she was to seriously attack a person or an animal in the future, then a destruction order must be made. The discretion in terms of deciding whether to make a destruction order that was previously in place under the earlier versions of the legislation and remains for the most part, has now, to that extent, been removed. This will always be the black cloud hovering over Honey and Mrs Allen. [81] For all these reasons, I saw no basis to have exercised the discretion under s 127A to have made a destruction order which would be concurrent with the Dangerous Dog Declaration. Conclusion [82] There can be no minimisation of the seriousness of what occurred and the injury AYB suffered. However, in the circumstances of everything that was before me, it does not follow that a dog must be destroyed. Like the manner as it was expressed by the learned Member in Keegan v North Burnett Regional Council56, there is nothing before me to show that Honey poses some threat to the community to justify a destruction order. The Council should now return Honey to Mrs Allen without delay. [83] For this reason, orders were made setting aside the Destruction Order and requiring the return of Honey. [84] In conclusion, for no other reason than the benefit of the Council, I offer these few further comments, albeit none of which were germane to the decision I reached and the orders I made. [85] The way the Council, particularly Mr Rogers, conducted itself in terms of its administration of the Act in the giving of requisite documents to Mrs Allen suggests 52 Ex 10 53 Ex’s 7 to 9. 54 Ex 12. 55 Ex 5 56 [2025] QCAT 285,[67]. -- 18 of 19 -- 19 an absence of an effective and proper understanding of the workings of the legislation. Two aspects of it in particular stand out, namely: (a) The Council’s response to Mrs Allen’s submissions given in terms of the Proposed Regulated Dog Declaration are written as if Mrs Allen had sought internal review of the proposed declaration as a decision, and that Mr Rogers, the author of that letter, had conducted an internal review. It was neither. Mrs Allen’s submissions were nothing more than the submissions she was entitled to make in response to the proposed declaration. The response from the Council need only then be that it withdrew the proposal or that it made the declaration. There was nothing, in the manner expressed by Mr Rogers, to confirm. (b) Whilst I need not repeat what I have said earlier herein, the Council evidently failed to understand the proper workings of the legislation in terms of issuing a concurrent regulated dog declaration and destruction order under s 127A of the Act. This is evident in the way it chose to issue the two separate documents, but more so on the face of the purported s 127A notice. As presented, it appears to be nothing more than a declaration notice converted to a destruction order. This is very clearly seen in the document immediately below Mr Roger’s signature where the following statements appear, such which has the potential to leave a dog owner confused: A request for review of this regulated dog declaration must be made to council …. Should no request for a review be received within the specified time Council will proceed to destroy the dog. [86] Council should take immediate steps to improve its administration of this aspect of the Animal Management Act and to ensure that its conduct, and those of its officers like Mr Rogers, and its Forms, are consistent with the legislation. -- 19 of 19 --