Brain v Townsville City Council [2025] QCAT 24

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Brain v Townsville City Council [2025] QCAT 24 PARTIES: MARK RAYMOND BRAIN (applicant) v TOWNSVILLE CITY COUNCIL (respondent) APPLICATION NO/S: GAR241-23 MATTER TYPE: General administrative review matters DELIVERED ON: 9 January 2025 HEARING DATE: 27 September 2024 HEARD AT: Brisbane DECISION OF: Member Howe ORDERS: The dangerous dog declaration is confirmed. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where there was an unprovoked attack on another dog – where the other dog suffered four puncture wounds – where a dangerous dog declaration was made by the Council – where the Council and the Tribunal were obliged to make a dangerous dog declaration in the circumstances. Animal Management (Cats and Dogs) Act 2008 (Qld), s 89, s 89(6) Brisbane City Council v Roy [2020] QCATA 147 APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: Self-represented by Brent Young REASONS FOR DECISION [1] Mr Brain is the owner of a five year old female Rottweiler dog named Coco. [2] On 20 August 2022 a contractor attended Mr Brain’s property to do work. Mr Brain was working away from home at the time but his partner was at home and gave the contractor access through the front gate. Whilst the gate was open, Coco came out from the property. -- 1 of 6 -- 2 [3] Ms Hunter resided in the same street. She had just arrived back home in her car with her dog, a female Greyhound named Chatz. She parked on the road and was walking with Chatz towards her house when Coco approached Chatz. There was a short fight between the dogs with Chatz suffering puncture wounds to her back. The fight was in a public area, the street near the parked car, outside Ms Hunter’s property. [4] Ms Hunter complained to the Council. [5] The Council investigated and determined Coco had attacked Chatz, the attack had been unprovoked and the attack was a serious attack for the purposes of the Animal Management (Cats and Dogs) Act 2008 (Qld) (‘the Act’). The Council declared Coco a dangerous dog on 23 February 2023 in result. [6] Mr Brain sought internal review of that decision but the earlier decision was confirmed. [7] Mr Brain has now applied to the Tribunal for external review of the decision to declare Coco a dangerous dog. The evidence [8] In a statement of evidence dated 18 January 2023 Ms Hunter, the owner of Chatz, states she arrived home, parked, and took Chatz out from the back of the car on a lead. She saw Coco coming towards them. Coco lunged at Chatz and bit her on the back. Ms Hunter fell over trying to kick out at Coco. She crawled to her car with Chatz, opened the tailgate and got in with her dog. Coco tried to bite Chatz throughout. Ms Hunter managed to close the tailgate. Coco’s owner by then had arrived and tried to control Coco but Coco did not have a collar on, so that was difficult. [9] Ms Hunter did not see Coco taken away, but after Coco had gone she came out of the vehicle with Chatz and saw her dog had been bitten on the back. She took her to a Veterinary Surgeon the next day. [10] Put in evidence is a Veterinary Patient History for Chatz completed when Chatz visited the Veterinary Surgeon the next day. In the report the Veterinary Surgeon notes puncture wounds observed on the back of the dog described as “wounds on dorsum, small soft swelling L. paralumbar area with associated bruising”. The diagnosis is “DFW” which I take to mean dog fight wound. [11] There is a photograph taken of Chatz, presumably at or about the time of the Veterinary Surgeon visit in evidence. The wound areas are clear with the hair shaved off the dog’s back, rear and side. At least four puncture wounds are apparent. [12] Mr Brain was not at home at the time of the fight, and his partner was but she was inside the gate when she opened it and Coco got out, and Mr Brain says by the time she came out from the gate herself, the fight had finished. She was not a witness to the actual incident. She called Coco back however. [13] Mr Brain’s partner did not make a statement of evidence and did not give evidence at the hearing. Ms Hunter made a statement of evidence but was not called as a witness at the hearing either. The legislation [14] By s 89 of the Act: -- 2 of 6 -- 3 Power to make declaration (1) Any local government may, by complying with the requirements of this part— (a) declare a particular dog to be a declared dangerous dog (a dangerous dog declaration); or (b) declare a particular dog to be a declared menacing dog (a menacing dog declaration). (2) A dangerous dog declaration may be made for a dog only if the dog— (a) has seriously attacked, or acted in a way that caused fear to, a person or another animal; or (b) may, in the opinion of an authorised person having regard to the way the dog has behaved towards a person or another animal, seriously attack, or act in a way that causes fear to, the person or animal. (3) A menacing dog declaration may be made for a dog only if a ground mentioned in subsection (2) exists for the dog, except that the attack was not serious. (4) The declaration may be made even if the dog is not in the local government’s area. (5) A declaration under this section is a regulated dog declaration. (6) In this section— animal has the meaning given by section 191. seriously attack means— (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. Findings [15] Though the material before the tribunal is limited I am able to make the following findings. I find that Coco and Chatz fought on the day in question. I find Chatz was on a leash when Coco attacked her. The attack was unprovoked. As a result of the fight, Chatz sustained injuries, most significantly, puncture wounds to her back, rear and side. Consideration [16] Mr Brain says the fight occurred on 20 August 2022 but the complaint by Ms Hunter was not made until 18 January 2023, nearly five months later. He said if Ms Hunter was at the hearing giving evidence he would like to ask why she delayed so long. [17] He also submits the fight was not serious, and “it takes two to Tango”. [18] He submitted that if Coco is declared dangerous he and his partner will not be keeping the dog. He said he had already made arrangements to have Coco rehoused with friends but if the dog was declared dangerous the friends would not be able to care for -- 3 of 6 -- 4 the dog either. No suitable arrangements could be made to satisfy the conditions required for owners to keep a declared dangerous dog. Coco would have to be put down. [19] The majority of Mr Brain’s material consists of photographs, which he offers to suggest Coco is anything but dangerous. They include photographs showing Coco sitting calmly on the floor next to Mr Brain’s baby daughter, amongst others. [20] Mr Brain paid for the Veterinary Surgeon treatment costs of Chatz. [21] In material supplied by Council are diary notes made by the Animal Management department of the Council. [22] It appears from those notes Ms Hunter first complained to Council about the attack on 7 September 2022. Council contacted Mr Brain about it the next day. Mr Brain was away. On 28 September 2022 a Council officer visited Mr Brain’s property but no one was home. There were no dogs visible. Mr Brain was telephoned. He said he was in Melbourne. [23] Ms Hunter telephoned the Council on 22 November 2022 to say she had not been contacted by the Council. A note of the telephone call records her as saying The house it came from does indeed have high fencing, but the dog obviously had access to the gate and I have received no advice of any change to this situation. I do not consider Council’s treatment of the situation in any way satisfactory and would appreciate further contact. [24] There is a further diary note of a discussion between Ms Hunter and a Council officer on 24 November 2022 in which she says she wanted more to be done in relation to the attack given the dog still had access to the gate at its property. In Ms Hunter’s statement of evidence of 18 January 2023 she states she spoke to Mr Brain’s partner approximately a week after the attack when she explained her fears that Coco still had access through the gate and that when Mr Brain’s partner walked Coco she would not be able to control it. Ms Hunter also suggested the Brains should consider adding internal fencing to their property to keep Coco away from the gate. [25] Council records show a proposal to make a regulated dog declaration by Council was on file on 16 January 2023. Council again contacted Mr Brain to advise the Council would open and investigate the incident from 7 September 2022. [26] There was no delay in Ms Hunter bringing the complaint to the Council. Any delay occurred with the Council, and according to Mr Young representing the Council, Council initially, wrongly, understood the matter to be an enquiry concerning the adequacy of Coco’s yard enclosure. It was only after Ms Hunter pursued the matter further some months later that it was realised it was a dog bite complaint. [27] There is nothing in the legislation to suggest there is a time requirement or limitation in acting on complaints in dog bite cases. [28] Turning to the legislative requirements, what is necessary is first to determine whether or not a relevant ground existed for making a regulated dog declaration. A regulated dog declaration may be to declare the dog a dangerous dog or a menacing dog. By s 89(2) of the Act, a dangerous dog declaration may be made if the dog has seriously attacked or acted in a way that caused fear to a person or another animal. -- 4 of 6 -- 5 [29] What amounts to a serious attack in relation to an animal is currently defined in s 89(6) as: Seriously attack means in relation to an animal – attack the animal in a way that causes the death of the animal, or maims or wounds the animal.1 [30] The bite punctures to Chatz’ back, side and rear were wounds to the animal and therefore a serious attack. Thus a relevant ground existed for the Council to make the dangerous dog declaration after proceeding through the legislative requirements set out in Part 4 of the Act. [31] Those legislative requirements were as follows: giving notice to Mr Brain of the proposal to make the regulated dog declaration; advising him of the reasons for it and allowing him a period of at least 14 days to show why the declaration should not be made; considering any representations about that by him; and then, if satisfied the relevant ground had been made out (here, that Coco seriously attacked Chatz), the Council was obliged to make the declaration. [32] Those steps appear to have been appropriately taken. There was a discretion in the Council not to make the declaration up to the point where representations were made by Mr Brain, but given it was determined that Coco was the instigator of the attack and that the attack had been unprovoked and had resulted in bodily injury (wounds) to Chatz, at that point the Council was obliged to make the declaration, given s 94 of the Act provides as follows: 94 Making regulated dog declaration (1) The local government must consider any written representations and evidence accompanying them within the period stated in the proposed declaration notice. (2) If, after complying with subsection (1), the local government is satisfied that the relevant ground under section 89 still exists, it must make the regulated dog declaration for the dog. (emphasis added) [33] This was explained by the Appeal Tribunal panel in Brisbane City Council v Roy [2020] QCATA 147, of which I was a Member: 52. The words of s 89(1) clearly confer upon a local government a capacity to choose between alternative courses of action: a choice that must be made in the exercise of a discretion.[56] A local government may, subject to compliance with the requirements of Part 4, declare a dog to be dangerous, menacing or restricted. The discretion not to make any declaration at all is confirmed by s 90(1) which states ‘If a local government proposes to make a regulated dog declaration …’ (emphasis added) and then outlines the process available to that end starting with a notice of proposed declaration given to the owner. 53. Section 89(2) sets out the considerations the local government is required to take into account in exercising the discretion conferred by s 89(1) to declare a dog to be dangerous. Section 89(3) sets out the considerations 1 What amounted to a serious attack on an animal at the time of the incident in the legislation utilised the same definition as that for an attack on a person, that is, if mere bodily harm occurred that sufficed, a much lower bar than that which currently applies. -- 5 of 6 -- 6 the local government is required to take into account in exercising the discretion conferred by s 89(1) to declaring a dog menacing. 54. If the local government is satisfied about the facts out of which the power to make a declaration about a dog arises, the local government must, by s 94(2) of the AM Act, make the declaration. 55. The ‘relevant ground’ in s 94(2) is a reference to the considerations which must be taken into account in exercising the power to make a regulated dog declaration to which we have earlier referred, that is ss 89(2) and (3). 56. Use of the word ‘must’ in s 94 indicates that the power granted is required to be exercised. [57] There is no discretionary element involved save that the decision maker must be satisfied that the relevant ground under s 89 is made out. If it is not, the regulated dog declaration proposed cannot be made. 57. Nor, do we consider s 94(2) permits in such circumstance any other order than to refuse to make the proposed regulated dog declaration. The mandatory notice of proposed declaration under s 90(1)(c) must state the particular type of regulated dog declaration proposed to be made. Where the relevant ground supporting the particular type of regulated dog declaration is not made out, the mandatory notice provision of s 90 cannot have been satisfied in respect of another type of declaration. 58. Turning then to the decision by the learned member, it follows from the aforesaid that, having found that the considerations set out in s 89(2) had been satisfied, the learned member was obliged to make the dangerous dog declaration. He had no discretion to do otherwise. [34] Similarly, despite what Mr Brain says about Coco being an otherwise quiet and trustworthy dog, the Council having made the decision that Coco had attacked Chatz, the attack not being provoked and Chatz having suffered wounds and injury in result, I must come to the same conclusion because it is required by the legislation. I have no discretion to overturn the decision below. [35] The dangerous dog declaration is confirmed. -- 6 of 6 --