Carthew v Cairns Regional Council [2025] QCAT 319

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Carthew v Cairns Regional Council [2025] QCAT 319 PARTIES: TIMOTHY CARTHEW (applicant) v CAIRNS REGIONAL COUNCIL (respondent) APPLICATION NO/S: GAR293-24 MATTER TYPE: General administrative review matters DELIVERED ON: 10 August 2025 HEARING DATE: 23 May 2025 HEARD AT: Cairns DECISION OF: Member Pearce ORDERS: The decision of the Cairns Regional Council made on 29 November 2023 in respect of a destruction order for the dog “Ruby” is confirmed. CATCHWORDS: GENERAL ADMINISTRATIVE REVIEW – DOG DESTRUCTION ORDERS – where dog attacked members of the public – where dog seized – whether discretion to issue destruction order in respect of the dog should be exercised – where dog had been declared a dangerous dog – effective management of regulated dogs – whether a dog constitutes, or is likely to constitute, a threat to the safety of persons by attacking them or causing fear to the extent that the threat may only be satisfactorily dealt with by the destruction of the dog Animal Management (Cats and Dogs) Act 2008 (Qld) Queensland Civil and Administrative Tribunal Act 2009 (Qld) Cutbush v Scenic Rim Regional Council (No 2) [2019] QCATA 167 Nguyen v Gold Coast City Council Animal Management [2017] QCATA 121 APPEARANCES & REPRESENTATION: Applicant: No appearance Respondent: M. Dunstan, Preston Law representing Cairns Regional Council -- 1 of 7 -- 2 REASONS FOR DECISION [1] In these proceedings Timothy Carthew (“the Applicant”) seeks a review of the decision of the Cairns Regional Council (“the Council”) made on 23 November 2023 to issue a Destruction Order in respect of Mr Carthew’s dog “Ruby” (“the Dog”). Background Facts [2] The Applicant is the owner of the dog, Ruby. The dog is a Pitbull cross and is a female. [3] On 9 November 2023, the victim was attended upon by Queensland Ambulance Service (“QAS”) for serious face, leg and arm injuries sustained from an alleged dog attack that occurred at a homeless camp located at the old drive-in theatre site located at 710-714 Des Chalmers Drive, Woree. [4] The ambulance officer reported in his statement that the victim had been breaking up a fight between the dog and the male dog named Boof, caused by the male dog getting within close proximity to the dog’s puppies. While breaking up the fight, the victim fell in between the dog and boof, putting herself between the dog and the puppies, causing the dog to react and attack the victim. [5] The QAS officers attended to significant dog bite injuries to the victim’s face resulting in significant disfiguration to the victim’s nose, causing the exposure of the nasal bone. The victim also sustained deep bite wounds to the right tricep and left thigh, as well as a puncture wound to the left shoulder. [6] The victim was taken to Cairns Base Hospital where she underwent multiple surgeries to treat the dog bite injuries, including rhinoplasty and skin grafts to treat the injuries to the nose. [7] On 10 November 2023, the respondent returned to the location of the dog attack and seized the dog as well as the female dog named “Ruby” and 10 two-week-old puppies. [8] As a consequence of the events of, the Council on 24 November 2023 gave notice to the Applicant that it proposed to declare the Dog a “Declared Dangerous Dog” in reliance upon Chapter 4 of the Animal Management (Cats and Dogs) Act 2008 (Qld) (“the Animal Management Act” or “the Act”). The Applicant was invited to make written representations to show why the proposed declaration should not be made. [9] On 27 November 2023, the applicant submitted written representations in response to the Proposed Regulated Dog Declaration Notice. [10] On 29 November 2023, the respondent issued the applicant with a concurrent Proposed Regulated Dog Declaration Notice and Destruction Order, wherein it proposed to concurrently declare the dog as dangerous and order the destruction of the dog pursuant to the Act. [11] On 15 December 2023, the applicant requested that the respondent conduct an internal review of the decision to issue a concurrent Proposed Regulated Dog Declaration and Destruction Order in relation to the dog. [12] After conducting an internal review of the matter, the respondent decided, on 8 April 2024, to confirm the original decisions made on 29 November 2023 to issue the applicant with a concurrent Regulated Dog Declaration and Destruction Order in relation to the dog and advised the applicant accordingly. -- 2 of 7 -- 3 Tribunal’s Jurisdiction to review the Decision [13] The Tribunal’s review jurisdiction is conferred on the Tribunal by an enabling Act to review a decision made or taken to have been made.1 [14] A person who is given a review notice for a decision may apply to the Tribunal, as provided under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”), for an external review of the decision.2 A review notice is given by the Chief Executive to the Applicant by way of a notice of the review decision following an internal review.3 The decision dated 25 May 2024 given to the Applicant is a review notice for the purpose of these proceedings. Accordingly, the Animal Management Act is the “enabling Act” for these proceedings. [15] The Tribunal has jurisdiction to hear and determine these proceedings provided the Applicant has applied to the Tribunal to exercise its review jurisdiction for a reviewable decision.4 The Applicant has filed such an Application to review a decision and accordingly the Tribunal has jurisdiction and can proceed to hear and determine the review. [16] The Tribunal is to review the decision by way of a fresh hearing on the merits and is to produce the correct and preferable decision.5 [17] In conducting the review jurisdiction in respect of a reviewable decision, the tribunal may: (a) confirm or amend the decision; or (b) set aside the decision and substituted its own decision; or (c) set aside the decision and return the matter for reconsideration to the decision- maker for the decision, with the directions the tribunal considers appropriate. The Animal Management Act and the Making of Declarations [18] The purpose of the Animal Management Act is to provide effective management of regulated dogs and promote responsible ownership.6 That is achieved by imposing obligations on particular persons to exercise effective control of dogs in particular circumstances and ensure dogs do not attack or cause fear. [19] Chapter 4 of the Animal Management Act contains provisions under the heading “Regulated dogs”. The purpose of Chapter 4 is to:7 (a) protect the community from damage or injury, or risk of damage or injury, from regulated dogs; and (b) ensure regulated dogs are— (i) not a risk to community health or safety; and 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”) s 17. 2 The Animal Management Act s 188. 3 Ibid s 187. 4 QCAT Act s 18. 5 Ibid s 20. 6 The Animal Management Act s 3. 7 Ibid s 59. -- 3 of 7 -- 4 (ii) controlled and kept in a way consistent with community expectations and rights of individuals. [20] A regulated dog is:8 (a) a declared dangerous dog; or (b) a declared menacing dog. [21] A declared dangerous dog is a dog declared under s 94 of the Animal Management Act to be a dangerous dog.9 [22] Any local government may declare a particular dog to be a declared dangerous dog.10 However, such a declaration can only be made if the dog:11 (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. [23] A declaration made under this section is a regulated dog declaration.12 The term “seriously attack” means:13 (a) in relation to a person—attack the person in a way that causes the death of, or grievous bodily harm or bodily harm to the person; or (b) in relation to an animal—attack the animal in a way that causes the death of the animal or maims or wounds the animal. [24] If a dog is a regulated dog, then an authorised person may immediately destroy the dog if:14 (a) the authorised person reasonably believes the dog is dangerous and the authorised person cannot control the dog; or (b) the owner of the dog has asked the authorised person to destroy the dog. [25] Where the dog is a “regulated dog” and s 127 of the Animal Management Act does not authorise the destruction of the dog then: (a) if the dog has seriously attacked a person or an animal, the authorised person must make a destruction order in relation to the dog; or (b) if the dog has not seriously attacked a person or an animal, the authorised person may make a destruction order in relation to the dog. [26] The Criminal Code Act 1899 (Qld) (“Criminal Code”) defines bodily harm and grievous bodily harm as follows: 8 Ibid s 60. 9 Ibid s 61. 10 Ibid s 89. 11 Ibid s 89(2). 12 Ibid s 89(5). 13 Ibid s 89(6). 14 Ibid s 127. -- 4 of 7 -- 5 (a) Bodily harm means any bodily injury which interferes with health or comfort. (b) Grievous bodily harm means— (i) the loss of a distinct part or an organ of the body; or (ii) serious disfigurement; or (iii) any bodily injury of such a nature that, if left untreated, would endanger or be likely to endanger life, or cause or be likely to cause permanent injury to health; whether or not treatment is or could have been available. [27] Where the Council has made a regulated dog declaration but has not given the owner of the dog an information notice, then the Council can make a concurrent declaration for the destruction the dog.15 The Applicant’s Grounds for Review [28] In his written application for review, the applicant has not provided any clear grounds for review. The applicant did not attend the hearing. The respondent provided information to the tribunal that the applicant has previously asserted that the dog was a loving dog and was only protecting her puppies, and that because the victim was no longer in a relationship with the applicant the victim was no longer at risk of being attacked. Consideration of the Tribunal [29] The Tribunal finds that the respondent had authority to propose to declare the dog as a dangerous dog under the Act. [30] The Tribunal finds from the evidence presented that the reason the dog was proposed to be declared dangerous was because it seriously attacked a person on 9 November 2023, satisfying the relevant criteria prescribed by section 89(2)(a) of the Act. [31] The respondent had authority to issue a concurrent Regulated Dog Declaration and Destruction Order in circumstances where it was considered appropriate to do so. [32] From the evidence supplied, it is certainly established the dog was responsible for the attack on the date mentioned above. [33] Whilst the victim refused to provide a statement, there was clear evidence provided by the attending ambulance officers that the dog was the dog responsible for the victim’s injuries. It is clear the injuries comprised of serious disfiguration including a missing portion of the victim’s nose and other bite wounds which required medical intervention. [34] It is also accepted that the victim of the attack on 9 November 2023 was the partner of the applicant. This victim received substantial injuries as mentioned above. [35] It is also accepted that the types of injuries sustained by the victim falls within the definition of bodily harm and/or grievous bodily harm as defined under the Criminal Code. 15 Ibid s 127A. -- 5 of 7 -- 6 [36] It is accepted that the dog seriously attacked a person and the injuries sustained were serious in nature and required medical intervention on each occasion and satisfies the definition of “seriously attack” contained within section 89(6) of the Act. [37] The affidavits and oral evidence provided by the council compliance officers who are experienced in dog behaviours made it very clear that the dog poses a very real risk to the health and safety of the community. [38] In Nguyen v Gold Coast City Council Animal Management16 (“Nguyen”), the Tribunal said:17 [31] …the essential question is whether the dog can be controlled taking into consideration the threat, or likely threat, to the safety of other animals or to people by attacking them or causing fear, posed by the dog. [32] 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 the 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 was 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, post 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. [33] The decision maker must also take into account the purposes of the Act generally, the purpose of Chapter 4 specifically and how the Act states those purposes are to be achieved. As the appeal tribunal said in Thomas any decision must be made in the context of the 16 [2017] QCATA 121. 17 Ibid [31]–[33]. -- 6 of 7 -- 7 legislative scheme, and specifically Chapter 4 of the AM Act in which the protection of the community is clearly given a higher priority than the individual rights of dog owners. [39] In Cutbush v Scenic Rim Regional Council (No 2)18 the Appeal Tribunal said it was appropriate for the above matters in the Nguyen case to be taken into consideration as well as taking in the likelihood of the dog’s owner complying with a dangerous dog declaration. Decision [40] The original decision is correct at law and reasonable and appropriate in the circumstances. The original decision is confirmed. Order [41] The decision of the Cairns Regional Council made on 29 November 2023 in respect of a destruction order for the dog “Ruby” is confirmed. 18 Cutbush v Scenic Rim Regional Council (No 2) [2019] QCATA 167. -- 7 of 7 --