Chadwick v Brisbane City Council [2021] QCAT 303

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Chadwick v Brisbane City Council [2021] QCAT 303 PARTIES: BENJAMIN CHADWICK (applicant) v BRISBANE CITY COUNCIL (respondent) APPLICATION NO/S: GAR402-19 MATTER TYPE: General administrative review matters DELIVERED ON: 8 September 2021 HEARING DATE: 28 July 2021 HEARD AT: Brisbane DECISION OF: Member Bertelsen ORDERS: The Decision of the Brisbane City Council made on 13 August 2019 to destroy Diesel is confirmed. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – Where dog has attacked and caused injury on three occasions to persons and other dogs– Where dog has been declared a regulated dangerous dog after first occasion– Where allegedly the dog owner does not show acceptance of responsibility for the dogs actions – Where there is ongoing non-compliance– Where after the third occasion a destruction order has been made– Where dog owner seeks review of the basis for the destruction order Animal Management (Cats and Dogs) Act 2008 (Qld) s 3, s 4, s 59, s 89, s 127, s 188 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 19, s 20, s 23 Cutbush v Scenic Rim Regional Council [2019] QCAT 80 Nguyen v Gold Coast City Council Animal Management [2017] QCATA 121 Thomas v Ipswich City Council [2015] QCATA 97 Bradshaw v Moreton Bay Regional Council [2018] QCATA 140 APPEARANCES & REPRESENTATION: -- 1 of 7 -- 2 Applicant: J Thong, Legal Officer, City Legal, Brisbane City Council Respondent: No appearance REASONS FOR DECISION By application filed 21 October 2019, the applicant Benjamin Chadwick, seeks a review of the Brisbane City Council’s (Council) decision of 2 September 2019 for destruction of his dog Diesel, a male Alaskan Malamute which had hitherto been kept at his premises in the suburb of Forest Lake. Mr Chadwick wants a behavioural assessment of Diesel, advice on changes to fencing at the Forest Lake address and a 6-month review of Diesels progress in returning back to normal society as he so put it. Background and evidence Mr Chadwick had resided at the Forest Lake address since June 2014. He was registered as owner of Diesel since August 2013. First attack On 27 January 2015, there was an attack by Diesel, according to Council, on one Diane Cox. Circumstances, according to Ms Cox in her affidavit filed in the tribunal were that on that day while she and her granddaughter were walking her two dogs a Staffordshire bull terrier named Axel and a fox terrier cross named Jake in a park area in the vicinity of the applicant’s home they were attacked by an Alaskan Malamute which grabbed Axel by the neck and threw him around like a ragdoll. Ms Cox tried to get Axel away by pulling on his lead but instead the lead came off. Ms Cox was nipped on her calf by the Alaskan Malamute. Ms Cox stated that, ‘a male person came along during the attack and wrestled Diesel off and took him home’. She described the attacking dog as a white Alaskan Malamute with strikes of grey through its coat. Following the attack, two females handed Ms Cox a business card which they, the two females, said was from the male person owner of the dog. Ms Cox’s daughter in law phoned the number on the card inquiring as to whom was going to pay the medical bills for Axel. Ms Cox’s daughter-in-law said the male person to whom she spoke, identified his home address in the suburb of Forest Lake. Immediately after the incident, Ms Cox attended her general practitioner Dr. Khin Toe, who recorded her injuries as “two deep punctured wound at left calf, bleeding”. On 28 January 2015, Ms Cox walked past the applicant’s home address. The dog she saw there was the dog she believed to be responsible for the attack. Mr Chadwick (the applicant), in his email of 17 February 2015 admits the date of the attack, that Diesel was involved in the attack, that when he arrived at the scene Diesel had pinned Axel to the ground by his neck, that he pulled Diesel away by his hind legs, that the other dog continued to attack Diesel whilst he held Diesel in the air, that Axel was on the attack before Ms Cox gained control of Axel, that Ms Cox did not know which dog had bitten her. The tribunal comes to the following conclusions with respect to this incident: (a) Diesel was roaming, no lead, in the company of nobody; (b) Ms Cox and her granddaughter were walking Axel and Jake in a park area near the applicants home address; (c) Diesel approached and attacked Axel; -- 2 of 7 -- 3 (d) Ms Cox pulled on Axels lead to get him away but it came off; (e) Ms Cox was bitten on the left calf - two deep punctured wounds bleeding with medical attention being required; (f) Axel required veterinary surgery for his wounds; (g) Breaking up fighting dogs is dangerous for any person trying to exercise some control or intervene e.g. pulling the dogs apart. Any dog in such a melee could be responsible for bites or scratches. There is no sense of canine alignment or loyalty in a frenzied melee of this nature. That is why as a matter of common- sense, sticks or hoses are far more effective but here clearly not available; (h) The point here is that Diesel instigated an unprovoked attack, resulting in injury to another animal and bodily injury to a person. On 19 May 2015, Council declared Diesel a regulated dangerous dog, based on its conclusions with respect to this first attack. The declaration was not internally reviewed nor was it appealed. Second attack On 27 January 2019, according to the affidavit of Ms Maja Stamenkovic filed in the tribunal, she and her husband were walking their boxer named Brock on a lead in the same vicinity of the applicant’s Forest Lake address, when a dog came from behind and attacked Brock. The attacking dog grabbed Brock around the shoulder blades. Ms Stamenkovic described the attacking dog as an Alaskan Malamute, much bigger than the boxer Brock. Her husband was able to hold the Alaskan Malamute which, when he pushed it away, came again at the boxer Brock. But they stood their ground and the Alaskan Malamute went away. It was a scary experience. Ms Stamenkovic was aware the only Alaskan Malamute in the area resided at the applicant’s home address. Brock suffered puncture wounds, which became infected requiring veterinary treatment and antibiotics. Ms Stamenkovic complained to the Council about the incident on 31 January 2019 after the long weekend. Mr Thomas of Council immediately the same day attended the applicants Forest Lake premises. There a conversation took place. Mr Chadwick informed Mr Thomas that Diesel had passed away a couple of months prior. No documentation confirming the demise of Diesel was able to be produced. While at the premises, Mr Thomas observed a yellow and black dangerous dog sign attached to a gate. He also observed the 6-foot high timber fence some palings of which were broken or cracked. The incident was neither denied nor confirmed nor challenged by the applicant, Mr Chadwick. Rather, it was a case of it not having anything to do with him because his dog Diesel was deceased. Here, it was a case of Diesel, a regulated dangerous dog, roaming, no lead in the company of nobody. The point is that Diesel instigated an unprovoked attack resulting in injury to another animal, an injury to a person or persons not necessarily physical but no doubt psychological to some degree as a result of such a ‘scary experience’. Third attack In her statement produced to the tribunal, Elise Want stated that on 3 May 2019 early evening she was walking her two dogs Oscar and Bella on a leash. Whilst walking alongside the applicant’s home address she was warned by a female person latterly identified as Katrina Lynn that there was a dog off-leash in the street. Following, -- 3 of 7 -- 4 virtually immediately after their exchange, a large grey white and black Malamute dog latterly identified as Diesel came running over and began attacking Oscar. Ms Want stated Diesel bit Oscar around the neck and shoulders and as she put it, ‘ripped Oscar to bits’. She was also bitten on her right index finger by Diesel causing an injury. In the course of the attack, Ms Want was able to take off Diesels collar. There was a dog tag with Diesel engraved on it along with the applicant’s telephone number. Oscars injuries were severe and he underwent surgery. Photographs of injuries are confronting. Ms Want telephoned the applicant who inquired about injuries. She told him Oscars injuries were severe and that her right index finger had been bitten. But Mr Chadwick said he was in Melbourne and his housemate was looking after Diesel in his absence. Later in the evening of the same day, Ms Want and her partner visited the applicant’s premises. She observed the 6-foot timber paling fence with some palings missing due to incomplete work on what appeared to be an extension. On 7 May 2019, Oscar was released from the veterinary clinic. The total cost of the veterinary treatment came to $5,827.07, paid for by Ms Want. However, on 9 May 2019 Oscar required further treatment due to the destabilizing effect of the attack on his canine diabetes, which occasioned further ongoing testing and treatment at a continuing cost to Ms Want. Once again, the incident was neither denied nor confirmed nor challenged by the applicant, Mr Chadwick. It was a case of Diesel roaming, no lead in the company of nobody and at this point still a regulated dangerous dog. The point here once again is that Diesel instigated an unprovoked attack resulting in injury to another animal and a person, this time, the injury to the animal namely Oscar being very serious. Evidence of Katrina Lynn In her affidavit produced to the tribunal, Ms Lynn gave a detailed well observed account of the incident involving Ms Want, Oscar and Diesel. She stated that when she arrived home around 5pm on 3 May 2019 she observed both the Border Collie and Diesel that lived at the applicant’s residential address, were out roaming on the street. She attended the applicant’s home address but nobody was at home. She then observed a female person walking two dogs on a leash in the street. So did Diesel. He immediately headed for Oscar and attacked him. There was a melee and a struggle. Then Diesel let go of Oscar and a short time later Ms Lynn noticed and spoke to a female person standing in the driveway of the applicant’s home address, later identified as Samantha, who stated Diesel was not her dog and that the owner had told the Council that the dog had passed away as it had attacked before. She confirmed the owner was in Melbourne. Later that evening Samantha asked Ms Lynn to talk to the owner. A short time later the owner rang Ms Lynn. She told him what had happened. The owner said he felt bad for the attack. Evidence of Abbie Tippler Abbie Tippler was the veterinary surgeon who attended to Oscar’s injuries. His statement produced to the tribunal about those injuries included, relevantly the words “in my opinion Oscars injuries if left untreated would have been life threatening because of the likelihood of those wounds becoming septic without treatment, drainage, debridement and antibiotics. Sepsis without treatment invariably results in death”. -- 4 of 7 -- 5 Evidence of Dr Graeme Edwards Dr Graeme Edwards was the medical practitioner who attended to Ms Wants right index finger. In a statement/report produced to the tribunal he relevantly stated, “the injuries sustained breached the true skin. Given the mechanism of injury, if the injury was left untreated, it could predictably result in a permanent injury. The risk was materially greater if the injury involved underlying bone”. Seizure of Diesel On 15 May 2019, Council officers attended the applicant’s home address, identified Diesel on the spot and seized him. Diesel was then impounded at the Willawong animal shelter. On 13 August 2019, the Council issued a destruction notice for Diesel. The applicant, Mr Chadwick lodged an application for internal review of Councils decision made on 15 August 2015. On 26 August 2019, Council officer Christopher Butt conducted an interview with Mr Chadwick, a transcript of which was produced to the Tribunal. In that interview, Mr Chadwick admitted he advised Council on 31 January 2019 after the attack involving Ms Stamenkovic that Diesel was deceased. He said that he was going through a lot of stress at the time and that Diesel was at a different address whilst he was doing renovations at the house. But he would not disclose where. Mr Chadwick stated he was aware of the attack that took place on 3 May 2019. He was in Melbourne at the time. Mr Chadwick was also aware Diesel was escaping through broken palings forming part of the approved enclosure, which at the time was being altered without Council’s knowledge or consent. When queried about leaving Diesel with the person Samantha, latterly identified as Samantha Allie, in his absence Mr Chadwick stated, she was responsible for Diesels wellbeing and his enclosure but also stated she was probably not aware of conditions for keeping a dangerous dog. On 2 September 2019, Council issued a notice of internal review confirming its decision to issue a destruction order for Diesel. Conclusions The correct test to apply regarding section 127 of the Animal Management (Cats and Dogs) Act 2008 (Qld) (AM Act) is concisely outlined in the decision of Cutbush v Scenic Rim Regional Council1. In that decision, Member Gordon discusses other relevant tribunal decisions including Thomas v Ipswich City Council2, Bradshaw v Moreton Bay Regional Council3 and Nguyen v Gold Coast City Council Animal Management4 (2017) QCATA 121. The following extracts from Cutbush5 are relevant to this proceeding: Making destruction orders – the correct test to apply [164] It was pointed out in Thomas v Ipswich City Council [2015] QCATA 97 that there is no guidance in the AM Act about how the discretion whether or not to destroy a dog should be applied. In those circumstances, the importance of ensuring that the legislative intent of the Act is applied 1 [2019] QCAT 80. 2 [2015] QCATA 97. 3 [2018] QCATA 140. 4 [2017] QCATA 121. 5 See (n 1) above. -- 5 of 7 -- 6 when exercising that discretion was emphasised. The Appeal Tribunal identified that legislative intent as follows:- [16] In the absence of any specific criteria, the legislative intent must be ascertained from the legislative scheme. Section 3 provides that the purposes of the AM Act include providing for effective management of regulated dogs.[68] Section 4 specifies how the purposes are primarily to be achieved. These means include imposing obligations on regulated dog owners; appointing officers to monitor compliance with the AM Act; and imposing obligations on some persons to ensure dogs do not attack or cause fear. Section 59 sets out that the purposes of ‘Chapter 4 Regulated Dogs’ include protecting the community from damage or injury, or risk of damage or injury, from regulated dogs;[69] ensuring that regulated dogs are not a risk to community health and safety;[70] and ensuring regulated dogs are kept in a way consistent with community expectations and the rights of individuals.[71] [17] Section 97 requires an owner or person responsible for a declared dangerous dog to ensure that permit conditions as provided for in Schedule 1 are adhered to. The conditions include enclosure requirements; implantation with a PPID and wearing an identifying tag of a specified type; for a dangerous dog, muzzling and being effectively controlled if not at its registered address; and signage. Section 125 sets out circumstances in which dogs can be seized by Council.[72] Under s 127, if a regulated dog cannot be controlled it may be immediately destroyed. It also provides for a destruction order to be made, as it was in Bruce’s case under s 127(4). We do not consider that the defences to the offence provisions assist. [18] It is clear that the AM Act is primarily directed towards the effective management and responsible ownership of dogs and that the destruction of a dog is a ‘last resort.’ It is generally where the mechanisms in the Act for management fail, or are ineffective, that destruction arises. The essential question is whether the dog constitutes, or is likely to constitute, a threat to the safety of other animals or to people, by attacking them or causing fear, to the extent that the threat may only be satisfactorily dealt with by the destruction of the dog. In the case of all three attacks Diesel was found to be roaming, no lead in the company of nobody. Mr Chadwick has not filed any material of consequence that might assist the tribunal in determining the fate of Diesel. On the contrary, in January 2019, he lied about the whereabouts of Diesel. He said Diesel was dead. He has shown no remorse towards those persons injured or traumatised in the three attacks, nor any sense of responsibility when it came to the cost those persons incurred for the injuries and recovery of their animals and themselves. In all three instances, the persons involved were members of the public, walking their dogs on leashes in a public place. Something they were entitled to do without fear to them or their animals’ safety when the attacks occurred. -- 6 of 7 -- 7 There was no evidence produced to the tribunal that Diesel received any training that might have modified his behaviour towards other people and animals. particularly in the period 2015 – 2019. There was a clear lack of security at the applicant’s premises on all three occasions. It could be said that such is self-evident. Diesel was out roaming each time. Allowing that to happen is even more culpable after the dangerous dog declaration of 19 May 2015, when a proper enclosure was required to be put in place together with dangerous dog signage. On the two latter occasions, Diesel escaped his enclosure. On the most recent occasion, escape was primarily due to loose fence palings. Irrespective of what renovations were being carried out at the applicant’s premises, the result was an inadequate fence incapable of keeping Diesel inside. That was noncompliance with enclosure requirements imposed in 2015 when Diesel was declared a regulated dangerous dog. Additionally, leaving Diesel in the care of a person without proper knowledge or instruction on the keeping of a dangerous dog indicated no insight into the risk posed by Diesel to persons or animals outside. It is sad to say but if Mr Chadwick had not lied in January 2019, the third attack and certainly the most serious attack may well not have taken place. As stated in Cutbush6 the essential question is, ‘whether the dog constitutes or is likely to constitute a threat to the safety of other animals or to people by attacking them or causing fear to the extent that the threat may only be satisfactorily dealt with by the destruction of the dog’. Here the evidence is overwhelming. The answer is yes. Orders 1. The Decision of the Brisbane City Council made on 13 August 2019 to destroy Diesel is confirmed. 6 Ibid. -- 7 of 7 --