Curley v Brisbane City Council [2020] QCAT 357

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Curley v Brisbane City Council [2020] QCAT 357 PARTIES: ANGEL CURLEY (applicant) v BRISBANE CITY COUNCIL (respondent) APPLICATION NO/S: GAR496-19 MATTER TYPE: General administrative review matters DELIVERED ON: 16 September 2020 HEARING DATE: 11 September 2020 HEARD AT: Brisbane DECISION OF: Member Cranwell ORDERS: The decision under review is confirmed. CATCHWORDS: ANIMALS – VARIOUS STATUTORY PROVISIONS – REGULATION OF COMPANION ANIMALS – OTHER MATTERS – dangerous dog declaration – where dog caused bodily harm to a person – where dog caused bodily harm to another dog – identity of dogs carrying out attacks Animal Management (Cats and Dogs) Act 2008 (Qld), s 3, s 59, s 60, s 70, s 89, s 90, s 94, Schedule 1 Criminal Code Act 1899 (Qld), Schedule 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20 REPRESENTATION: Applicant: T Christie, solicitor Respondent: A Swindley, solicitor REASONS FOR DECISION Introduction This is an application for review of decisions made by the Brisbane City Council on 10 September 2019, to declare Oakley and Gypsy to be dangerous dogs pursuant to the Animal Management (Cats and Dogs) Act 2008 (Qld) (the Animal Management Act). -- 1 of 5 -- 2 Ms Curley is the owner of Oakley and Gypsy. The dangerous dog declarations relate to separate incidents which took place on 24 June 2019 and 7 July 2019. In respect of the 24 June 2019 incident, it is not in dispute that Ms Curley’s neighbour, Bobbie Wylie, was attacked by a dog and suffered bodily harm as a consequence of this attack. In respect of the 7 July 2019 incident, it is not in dispute that Ms Wylie’s dog, Winnie, was attacked by a dog and suffered bodily harm as a consequence of this attack. The identity of the respective dogs responsible for these attacks is in dispute. The legislative regime for regulated dogs The regime for regulated dogs is contained in Chapter 4 of the Animal Management Act. A dog may be declared to be dangerous if grounds for that declaration exist under s 89(2), which provides that a dog may only be declared dangerous if: (a) the dog has ‘seriously attacked’, or acted in a way that caused fear to, a person or another animal; or (b) the dog 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. Section 89 in the Animal Management Act also contains a definition of ‘seriously attack’, which provides that a dog attack constitutes a ‘serious’ attack if it results in either bodily harm, grievous bodily harm, or death.1 The dictionary contained in Schedule 2 of the Animal Management Act requires that ‘bodily harm’ be given the same meaning attributed to those terms by section 1 of the Queensland Criminal Code. Relevantly, ‘bodily harm’ is defined in the Criminal Code to mean ‘any bodily injury that interferes with health or comfort’. As noted above, it is not in dispute that Ms Wylie and Winnie, respectively, suffered bodily harm during the attacks in question, and that the attacks were therefore serious attacks. In circumstances where it is proposed to make a regulated dog declaration, notice must first be given to the owner,2 and the owner may then make written representations as to why that proposed declaration ought not be made. The local government must then consider any written representations that are made by the owner before a regulated dog declaration is in fact made.3 Needless to say, all of these antecedent things have happened in this case. It is important to note that if the local government is satisfied the relevant ground under s 89 still exists, it must make the regulated dog declaration.4 There is no discretion. In a review proceeding it is the responsibility of the Tribunal to arrive at ‘the correct and preferable decision’ by way of a fresh hearing on the merits.5 The review must be conducted in accordance with the enabling Act, in this case the Animal Management 1 Animal Management Act, s 89(7). 2 Animal Management Act, s 90. 3 Animal Management Act, s 94(1). 4 Animal Management Act, s 94(2). 5 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20. -- 2 of 5 -- 3 (Cats and Dogs) Act 2008 (Qld). This means the Tribunal has no powers greater than the original decision maker. In finding a fact or facts, the required standard to which the Tribunal must be satisfied is on the balance of probabilities. The approach to be adopted was stated by Dixon J (as he then was) in Briginshaw v Briginshaw: Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal.6 Discussion of evidence and findings of fact Ms Curley and her partner, Frances Viney, were between them the owners of three dogs: (a) Oakley, a Great Dane; (b) Gypsy, an American Staffy; and (c) River, an American Staffy. I will now consider each incident which formed the basis of the respective declarations. Incident of 24 June 2019 Ms Curley gave a brief account of this incident in her statement dated 22 March 2020. Relevantly, she stated: On the 24 th of June 2019 River aggressively attacked Gypsy. This altercation took place in the front yard. Oakley was not part of this as I had put him inside with the door securely closed. I had tried to get River off Gypsy as River was biting Gypsy on the neck and back. Within this time, Bobby entered our property. River had bitten Gypsy, Bobbie and me. Ms Curley elaborated on her interactions with Oakley during the attack in her affidavit of 10 September 2020: I saw Oakley still standing right next to the incident, watching it all. He was close by, around one metre from the other dogs. I got off the ground and saw Oakley still standing there. He is a large dog and was getting in the way of Ms Wylie and myself being able to get between Gypsy and River. The incident took place around 2-3 metres from the front door. I grabbed Oakley and quickly put him in the house, behind the door and closed it. I would estimate the time spent on getting Oakley behind the front door was between five and ten seconds. Under cross-examination, Ms Curley conceded that she had not seen Ms Wylie being bitten by a dog. Ms Curley was, however, adamant that River was the dog doing the biting and, as a consequence, River was subsequently euthanised. 6 (1938) 60 CLR 336, 361-2. -- 3 of 5 -- 4 Ms Wylie’s account is contained in her affidavit of 19 February 2020. Relevantly, she stated: I ran into the premises to help and saw Angel trying to separate three (3) dogs. I saw that she had pinned down the larger of the dogs and she asked me to take hold of the rear legs of one of the other dogs to bring it under control. As I attempted to do so, the dog that Angel was holding broke loose and bit me twice on my left thigh. As it did so, I immediately experienced pain and the wounds bled. I was also in fear that the dog would attack me again. In the process of separating the three (3) dogs, Angel was also bitten and sustained injuries. The dog that bit me was the larger of the three (3) dogs and I would describe it as either brown or black with white colouring, quite large and possibly named Oakley. The other two (2) dogs were smaller and are possibly Staffies, brindle in colour. It is not in dispute that Oakley was the largest of the three dogs, and that he has brown and white colouring. This incident was obviously a difficult and traumatic event for each of Ms Curley and Ms Wylie. Both women sustained injuries. However, they have given differing accounts as to the identity of the dog that attacked Ms Wylie. I am satisfied that it was Oakley, and not River, who attacked Ms Wylie. At the end of the day, Ms Wylie was the only witness who saw the dog attack her. She has provided a clear description of the attacking dog, which is consistent with that dog being Oakley. While I do not doubt the sincerity of Ms Curley’s account, which ultimately led her to euthanise River, the fact remains that she did not see the attack on Ms Wylie. Importantly, Ms Curley’s more recent account corroborates that Oakley was still present in the yard when Ms Wylie arrived. Incident of 7 July 2019 Ms Wylie gave the following account of this incident in her affidavit: After a very short period of time, I heard ‘Winnie’ frantically yelping as though in fear and pain. I rush (sic) outside towards her screams, she was at the side of the house. I saw ‘Winnie’ on the ground with her left leg beneath the fence and being attacked by one of the dogs from the premises. The attacking dog gained access to her by digging a hole and breaking the lower portion of a paling from the fence. The attacking dog, which had a tan coloured muzzle, had ‘Winnie’ by the left leg and was attempting to pull ‘Winnie’ under the fence. The only thing in place which prevented this from happening was a wooden sleeper which we had placed against the fence in an attempt to keep our dogs safe. Under cross-examination, Ms Wylie stated that the dog who attacked Winnie was not the large brown and white dog who had attacked her during the earlier incident. Ms Viney gave the following evidence in her statement dated 22 March 2020: Oakley has a white muzzle and Gypsy’s muzzle is black. Under cross-examination, Ms Viney stated that Gypsy has light brown near her eyes. -- 4 of 5 -- 5 It is not in dispute that, as at 7 July 2019, only two dogs resided at Ms Curley’s residence – Oakley and Gypsy. By this time, River had been euthanised. It is not in dispute that one of Oakley or Gypsy must have attacked Winnie. I am satisfied, on the balance of probabilities, that it was Gypsy who attacked Winnie. While there is some discrepancy in Ms Wylie’s account as to the colour of Gypsy’s muzzle, Ms Wylie was clear in her evidence that the attack was not carried out by Oakley. This discrepancy may be partially explained, in any event, by the presence of light brown colouring near Gypsy’s eyes. Ms Wylie was the only witness to the attack, and no contradictory evidence was provided. Conclusion For the reasons given above, I find that the ground in s 89(2)(a) of has been established for Oakley in respect of the 24 June 2019 incident, and for Gypsy in respect of the 7 July 2019 incident. Accordingly, I confirm the decisions by the Brisbane City Council to declare Oakley and Gypsy to be dangerous dogs. -- 5 of 5 --