Central Queensland Animal Society Inc v Rockhampton Regional Council [2025] QCATA 35

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Central Queensland Animal Society Inc v Rockhampton Regional Council [2025] QCATA 35 PARTIES: CENTRAL QUEENSLAND ANIMAL SOCIETY INC (applicant/appellant) v ROCKHAMPTON REGIONAL COUNCIL (respondent) APPLICATION NO: APL347-23 ORIGINATING APPLICATION NO/S: GAR395-22 MATTER TYPE: Appeals DELIVERED ON: 3 April 2025 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Aughterson ORDERS: Leave to appeal in relation to grounds 2 and 6 of the appeal is refused. The appeal is otherwise dismissed. CATCHWORDS: APPEAL AND NEW TRIAL – RIGHT OF APPEAL – WHEN APPEAL LIES – OTHER CASES – appeal on question of law or fact or mixed law and fact – where dangerous dog declaration – where decision upheld by Tribunal at first instance – where applicants seek to appeal that decision – whether leave to appeal should be granted – whether error of law established – whether appeal should be upheld Animal Management (Cats and Dogs) Act 2008 (Qld), s 9, s 59, s 89, s 90, s 94 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 121, 142 Bagumya v Kakwano [2010] NSWSC 600 -- 1 of 9 -- 2 Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39 Briginshaw v Briginshaw (1938) 60 CLR 336 Council of the City of Lake Macquarie v Morris [2005] NSWSC 387 Devries v Australian National Railways Commission (1993) 177 CLR 472 Holman v Campbell [2024] QCA 176 Lee v Lee; Hsu v RACQ Insurance Limited; Lee v RACQ Insurance Limited [2018] QCA 104 Penev v County Court of Victoria [2013] VSC 143 Piric & Anor v Claudia Tiller Holdings Pty Ltd [2012] QCATA 152 Queensland Building and Construction Commission v Crocker [2018] QCATA 194 Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22 Seirlis & Ors v Queensland Building and Construction Commission [2020] QCATA 37 Smart v Mackay Regional Council [2019] QCAT 236 APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) REASONS FOR DECISION [1] On 13 September 2023, the Tribunal confirmed the decision of the respondent to declare ‘Leia’ a dangerous dog pursuant to s 89 of the Animal Management (Cats and Dogs) Act 2008 (Qld) (‘the Act’). The applicant is the ‘owner’ of Leia within the meaning of s 9 of the Act. [2] The given reason for the declaration was that on 28 April 2022 Leia attacked and caused the death of two animals (chickens) and on 6 May 2022 attacked another animal (a chicken) causing puncture wounds to its back. The attacks were said to have occurred on private property. [3] In relation to the power to make a dangerous dog declaration, s 89(2) of the Act provides: 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 -- 2 of 9 -- 3 [4] Prior to the recent amendments, and relevant to the present case, s 89(7) of the Act provided that ‘seriously attack means to attack in a way causing bodily harm, grievous bodily harm or death’. [5] A declaration under s 89 of the Act is a ‘regulated dog declaration’: see s 89(6) of the 1 July 2020 Act and s 89(5) of the present Act. Section 90 of the Act requires the giving of a notice to the owner where it is proposed to make a regulated dog declaration. The notice must state that the owner may, within a specified period, make written representations to show why the proposed declaration should not be made. By s 94 of the Act, after considering any representations made, if the local government is satisfied that the relevant ground under s 89 of the Act still exists, it ‘must’ make the regulated dog declaration for the dog. In other words, if the requisite satisfaction of the relevant ground under s 89 remains the local government does not have a discretion in relation to the making of the declaration. [6] In finding that the attacks by Leia did occur, resulting in two deaths and injury to another animal, the Tribunal at first instance noted the substantial evidence, which included four statements, the oral evidence of witnesses, numerous photographs and body-worn camera footage. The Tribunal found on the balance of probabilities that ‘the dog jumped into the property to attack the birds’. [7] It was also held that the required notice had been given in accordance with s 90 of the Act. The Tribunal noted the mandatory terms of s 94 of the Act and confirmed the decision of the respondent. [8] The grounds of appeal are lengthy and, to some extent, disjointed. However, the following grounds can be discerned: (1) The tribunal erred in its construction of what constituted an ‘attack’ within the meaning of s 89 of the Act. (2) There was no direct evidence to warrant the finding that the dog Leia was the dog responsible for any attack. (3) There was a denial of procedural fairness in circumstances where the oral decision was given on the same day as the hearing, giving rise to inaccuracies in the decision and the lack of time to form an objective view in relation to the matters raised. (4) There was a denial of procedural fairness in giving notice of the proposed declaration of a dangerous dog. (5) The Tribunal erred in failing to take into account relevant considerations; in particular, the failure of the Council inspector to inspect the chicken enclosure for compliance with Council laws, check the injured chicken and take account of the fact that the injured chicken didn’t receive veterinary care. (6) The Tribunal erred in not assigning appropriate weight to certain evidence that it did consider, including that that there was a lack of impartiality on the part of the Council -- 3 of 9 -- 4 investigator, that there were other dogs in the neighbourhood, that Leia is a friendly dog and, generally, ‘mistakes’ made by witnesses in giving evidence. [9] By s 142(3)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), an appeal on a question of fact, or a question of mixed law and fact, may be made only with leave of the Appeal Tribunal. Usually, leave will be granted only where an appeal is necessary to correct a substantial injustice to the applicant and there is a reasonable argument that there is an error to be corrected.1 [10] Leave will not be granted where a party simply desires to reargue the case on existing or additional evidence.2 A clear purpose of the requirement for leave is to prevent any attempt to simply conduct a retrial on the merits of the case.3 Also, the Appeal Tribunal will not readily interfere with findings of fact of the Tribunal at first instance, unless they are demonstrated to be wrong by ‘incontrovertible facts or uncontested testimony’, or they are ‘glaringly improbable’ or ‘contrary to compelling inferences’.4 [11] Ground 1 conceivably gives rise to an error of law. It is an error of law to misconstrue a statutory provision.5 Ground 2 involves a question of fact. It is not submitted that there was no evidence at all to warrant the finding, but rather that there were no eyewitnesses to the actual attack. In relation to grounds 3 and 4, a denial of procedural fairness will generally involve a question of law.6 Ground 5 of the appeal, failure to take account of relevant considerations, also involves a question of law. Ground 6, which goes to the weight to be given to particular evidence, involves a question of fact. [12] The discussion will proceed on the basis that ground 2 and 6 of the appeal involve questions of fact and that the other grounds involve questions of law. Ground 1 [13] It is submitted that the Tribunal erred in its construction of the term ‘attack’ within the meaning of s 89 of the Act. Reference is made to discussion as to the meaning of that term in the NSW decision in Council of the City of Lake Macquarie v Morris.7 While that case involved analogous legislation, it dealt with an offence provision whereby an owner might be liable where a dog ‘attacks’ a person or animal. It was noted that the term ‘attack’ was not defined in the legislation and the discussion proceeded on the basis of the interpretation it should be given for the purposes of the relevant provision of that Act.8 Reference was 1 Holman v Campbell [2024] QCA 176, [39]; Queensland Building and Construction Commission v Crocker [2018] QCATA 194, [4]. 2 Piric & Anor v Claudia Tiller Holdings Pty Ltd [2012] QCATA 152, [12]. 3 Piric & Anor v Claudia Tiller Holdings Pty Ltd [2012] QCATA 152, [12]; Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39; Seirlis & Ors v Queensland Building and Construction Commission [2020] QCATA 37. 4 Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22, [43]; followed in Lee v Lee; Hsu v RACQ Insurance Limited; Lee v RACQ Insurance Limited [2018] QCA 104. 5 See, for example, Penev v County Court of Victoria [2013] VSC 143, [68]. 6 See, for example, Bagumya v Kakwano [2010] NSWSC 600, [32]. 7 [2005] NSWSC 387, [30]-[34], [40]-[47]. 8 It is noted in Council of the City of Lake Macquarie v Morris [2005] NSWSC 387 at [36] that: -- 4 of 9 -- 5 made to other authorities, where terms such as ‘came at’ and ‘an act of hostility or aggression’ were used to define the meaning of ‘attack’. It was also said that it is not necessary to prove actual physical contact. [14] The applicant also made reference to a decision of this Tribunal in Smart v Mackay Regional Council,9 which cited the NSW decision noted above as to the meaning of ‘attack’. In Smart v Mackay Regional Council10 it is evident that the injury to the chicken in question was relatively minor and it was concluded that there had not been an ‘attack’. That was because the dog was likely trapped in a small area with a number of chickens and it was ‘a still relatively young and excitable dog faced with wing flapping chickens’.11 It was found that the dog could easily have killed the chicken if it had wanted to, but its actions indicated that the dog was engaged in a ‘game’ rather than an attack. The owner of the chickens had given evidence that she considered that the dog had thought that it was a ‘great game’. [15] In the present case, the Tribunal at first instance referred to the relevant statutory provisions, including the definition of ‘seriously attack’. It was found that the dog had jumped into the property to attack the birds, with the result, on two separate occasions, of killing and injuring the chickens. The circumstances of the present case are quite different from those in Smart v Mackay Regional Council12 and it has not been demonstrated that the Tribunal could not reasonably infer that the killing was the result of an attack by Leia. [16] Ground 1 of the appeal is rejected. Ground 2 [17] Ground 2 of the appeal is that there was no direct evidence to warrant the finding that Leia was the dog responsible for any attack. It is stated that there were no eyewitnesses to any actual attack. [18] However, that submission assumes that the Tribunal was unable to draw reasonable inferences from the evidence provided. That evidence included four statements, the oral evidence of witnesses, numerous photographs and body-worn camera footage. There is no dispute as to the death of the chickens and the Tribunal was entitled to find that Leia was responsible, on the basis of the identification evidence of several witnesses, including identification by reference to the name and telephone number on the collar tag and the sighting of Leia with a chicken in its jaw and blood in its mouth. One of the witnesses was able to restrain the dog and inspect and photograph the dog tag. To constitute an “attack” within s 16(1), it is clear from the section itself that it is not necessary that injury be caused. Nor, in my view, is it necessary that the prosecution prove that physical contact occurred between the dog and animal which is said to have been attacked. A court may conclude that a dog has attacked a person or animal for the purposes of s 16(1) if the dog’s actions involve an act of hostility or aggression of the type exemplified in the cases referred to above. 9 [2019] QCAT 236, [35], [41], [45], [50]. 10 Ibid. 11 Ibid, [43]. 12 Ibid, [44]. -- 5 of 9 -- 6 [19] The Tribunal was entitled to rely on indirect evidence, such as that indicated above, to draw a conclusion on the balance of probabilities as to the animal responsible for the attack. [20] Ground 2 of the appeal is rejected. Ground 3 [21] Ground 3 of the appeal is that there was a denial of procedural fairness in circumstances where the oral decision was given on the same day as the hearing, giving rise to inaccuracies in the decision and the lack of time to form an objective view in relation to the matters raised. [22] Section 121(4) of the QCAT Act recognises the giving of oral reasons. The giving of oral reasons on the day of the hearing is not unusual. It is also consistent with the objects at s 3(b) of the QCAT Act to have the Tribunal deal with matters ‘in a way that is accessible, fair, just, informal and quick’. Giving a decision and reasons on the day of a hearing is not indicative of a lack of objectivity. [23] The applicant does not clearly indicate what the inaccuracies in the decision were, other than to say that the Tribunal gave no weight to matters raised by the applicant at the hearing and that the cases cited by the applicant were not referred to. This issue and the related submissions going to what were said to be inconsistencies and shortcomings in the evidence are discussed below, in relation to ground 5 of the appeal. [24] Ground 3 of the appeal is rejected. Ground 4 [25] Ground 4 of the appeal is that there was a denial of procedural fairness in giving notice of the proposed declaration of a dangerous dog. The applicant submits that it was not provided with a notice of the proposed regulated dog declaration, as required by s 90 of the Act. Section 90 of the Act provides that notice must be given to ‘any’ owner of the dog. The term ‘owner’ is defined at s 9 of the Act and provides that ‘each’ of the listed persons is an owner. The list includes the registered owner and a person who usually keeps the dog. [26] The alleged attacks occurred on 28 April 2022 and 6 May 2022. The notice in accordance with s 90 of the Act was issued to a person who at that time was an owner and the dangerous dog declaration was made on 5 July 2022. While the respondent submits that at relevant times it was an owner, the Tribunal at first instance accepted that the applicant became an owner following a request for change of ownership made on 17 July 2022 and that a dangerous dog declaration was issued to the applicant on 20 July 2022. The Tribunal at first instance also found that the earlier owner notified the applicant of the declaration upon returning Leia to the applicant for rehoming. [27] Section 90 of the Act provides that notice of the proposed declaration must be given to ‘any’ owner, no doubt on the basis that there might be multiple ‘owners’, some of whom might be unknown to the respondent. Accordingly, even if the applicant was an ‘owner’ at all relevant times, the respondent complied with s 90 of the Act by giving the notice to an owner. There is nothing in the Act to indicate that once a declaration is made, the respondent is required -- 6 of 9 -- 7 to give a fresh notice and to reconsider its decision each time a new owner emerges. Indeed, that could give rise to a never ending and unruly process. [28] Nevertheless, the applicant submits that because it was not provided with the notice of the proposed declaration it was denied the opportunity to prepare a case in response to the proposal. However, the Tribunal at first instance found that upon being given the declaration the applicant was advised as to the right of internal review, which step was in fact taken. In addition, the hearing before the Tribunal was a fresh hearing on the merits, giving the applicant ample opportunity to present its case. [29] There has been no denial of procedural fairness in this regard and accordingly ground 4 of appeal is rejected. Ground 5 [30] Ground 5 of the appeal is that the Tribunal erred in failing to take into account relevant considerations; in particular, the failure of the Council inspector to inspect the chicken enclosure for compliance with Council laws, check the injured chicken and take into account the fact that that the injured chicken did not receive veterinary care. [31] As to the suggested failure to inspect the chicken enclosure for compliance with Council laws, there is nothing in the Act that limits a dangerous dog declaration or limits what constitutes a ‘serious attack’ to circumstances where the owner of the animal attacked is complying with other Council laws or where the Council is properly enforcing those other laws. Indeed, s 59 of the Act makes it clear that a purpose of the provisions relating to regulated dogs is to protect the community from damage or injury and, in part, to place obligations on the owners of regulated dogs to mitigate against that risk. It is evident that the applicant is endeavouring to shift the blame to the owner of the chickens and to the Council, on the basis that the owner did not keep the chickens in accordance with the law and the Council did not enforce those laws. Any failure to check the chicken enclosure is irrelevant to the question of whether there has been a ‘serious attack’ or whether a dangerous dog declaration should be made. [32] As to the considerations relating to the suggested failure of the Council inspector to check the injured chicken and the lack of veterinary care, it is not evident how this is of significance, including in the context of the accepted evidence as to the injury and the findings of the Tribunal at first instance as to the killing of two chickens. [33] There has been no failure to take into account relevant considerations as submitted and accordingly ground 5 of the appeal is rejected. Ground 6 [34] Ground 6 of the appeal is that the Tribunal erred in not assigning appropriate weight to certain evidence that it did consider, including that that there was a lack of impartiality on the part of the Council investigator, that there were other dogs in the neighbourhood, that Leia is a friendly dog and, generally, mistakes made by witnesses in giving evidence. -- 7 of 9 -- 8 [35] As to the suggested lack of impartiality on the part of Council investigator, which include an allegation that the investigator led and coached witnesses during their interviews, the Tribunal at first instance found that the allegation of impartiality was not supported by the evidence. It is not clear from the applicant’s submissions as to why that finding was not open on the evidence. The same can be said of the finding of the Tribunal at first instance that the submission that another dog might have been involved was not supported by the evidence. [36] As noted above, the Appeal Tribunal will not readily interfere with findings of fact of the Tribunal at first instance, unless they are demonstrated to be wrong by ‘incontrovertible facts or uncontested testimony’, or they are ‘glaringly improbable’ or ‘contrary to compelling inferences.13 It is not sufficient for the applicant to simply make the assertion that, for example, another dog was seen in the area and that it might have been involved. No doubt that was weighed by the Tribunal against other evidence pointing to Leia being the responsible dog. [37] Further, any general friendliness on the part of Leia, does not diminish the accepted evidence as to the attacks. The applicant did not produce any evidence to the effect that ‘friendly’ dogs are incapable of such conduct. The Tribunal at first instance referred to evidence that Leia had not acted aggressively prior to or since the incident in question and stated: ‘There are many authorities to the effect that such evidence is no guarantee that an animal will not act aggressively in the future’. [38] As to the suggested ‘mistakes’ of witnesses, there was an opportunity for the applicant to address that at the Tribunal hearing. Again, no error is pointed to such that the appeal Tribunal should interfere with findings of fact. [39] In the submissions there is also reference to ‘inaccuracies’ in the decision. However, it is not clearly indicated what the inaccuracies are, other than to say that the Tribunal gave no weight to matters raised by the applicant at the hearing and that the cases cited by the applicant were not referred to. [40] In assessing any evidence, the evidence should be looked at as a whole and the likelihood or relevance of particular matters assessed in the context of all of the evidence. In the absence of any error as outlined above, the weight to be given to each item of evidence is a matter for the Tribunal at first instance. [41] Also, in addressing the question of whether the Tribunal has fallen into error, allowance should be made for the fact that the Tribunal at first instance had the advantage of assessing the credibility of witnesses and was in a position to assign weight accordingly. As stated in Devries v Australian National Railways Commission (citations omitted):14 More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against — even strongly against — that 13 Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22, [43] followed in Lee v Lee; Hsu v RACQ Insurance Limited; Lee v RACQ Insurance Limited [2018] QCA 104. 14 (1993) 177 CLR 472, 479, per Brennan, Gaudron and McHugh JJ; see also Cumming v Specialised Training Services (Qld) P/L [2000] QCA 243, [5]. -- 8 of 9 -- 9 finding of fact. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”. [42] Ground 6 of the appeal is rejected. [43] There was ample evidence to enable the Tribunal at first instance to conclude beyond reasonable doubt, allowing for the Briginshaw principle,15 that Leia was the responsible dog and that there had been a serious attack in relation to the chickens. By s 94 of the Act, where satisfied that the relevant ground under s 89 exists it is mandated that a regulated dog declaration be made for the dog. [44] Leave to appeal in relation to grounds 2 and 6 of the appeal is refused. The appeal is otherwise dismissed. 15 Briginshaw v Briginshaw (1938) 60 CLR 336. -- 9 of 9 --