Christie and Anor v Livingstone Shire Council [2020] QCAT 321

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Christie and Anor v Livingstone Shire Council [2020] QCAT 321 PARTIES: GERARD CHRISTIE KAREN CHRISTIE (applicants) v LIVINGSTONE SHIRE COUNCIL (respondent) APPLICATION NO/S: GAR297-19 MATTER TYPE: General administrative review matters DELIVERED ON: 28 August 2020 HEARING DATE: 29 May 2020 HEARD AT: Brisbane DECISION OF: Member Allen ORDERS: The decision of the Livingstone Shire Council made on 19 July 2019 to declare the dog “Eli” to be a Regulated Dog (Menacing Dog) is confirmed. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – animals – where a menacing dog declaration made – where alleged that dog attacked toddler – where evidence from owner that dog had no history of attacking – whether dog attacked – whether character evidence in favour of dog can displace statutory requirement that declaration be made if dog found to have attacked. Animal Management (Cats and Dogs) Act 2008 (Qld), s 89, s 94 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 18, s 20, s 24 Imbrogno & Anor v Brisbane City Council [2017] QCATA 148 Roy v Brisbane City Council [2019] QCAT 311 APPEARANCES & REPRESENTATION: Applicants: Self-represented by K Christie -- 1 of 4 -- 2 Respondent: Self-represented by Mr C. Newsome. REASONS FOR DECISION The dog Eli, a male Belgian Shepherd, is owned by Mr and Mrs Christie on Great Keppel Island and Eli is apparently well known to locals having regard to the character material presented to the Tribunal. On 15 January 2019 Mrs Christie was walking Eli home and walked past a café where Ms King and her young son were eating. The son, Harrison who was nearly two years old, took an interest in the dog and started following it. Harrison is young and it took some time to catch up with Eli and Mrs Christie. At that stage Mrs Christie and Eli were close to home and as was her habit Mrs Christie let Eli out of her control so that he could visit dogs in a neighbour’s yard. She turned away and continued towards home which was a short distance away. Ms King alleges at this time Eli attacked Harrison, causing a bite to his back. Mrs Christie heard a commotion and turned around and saw the boy injured and her dog. Mrs King took Harrison to the medical clinic where he was treated. A letter from the medical clinic indicated that Harrison had a dog bite in the middle of his back. Mrs Christie is said to have apologised for Harrison's injury at the time. Ms King reported the alleged dog attack to the Council and Council officers investigated and took statements from Mrs King and Mrs Christie. The Council decided that there were grounds to issue a menacing dog declaration against Eli and a notice of proposed menacing dog declaration was issued to Mr and Mrs Christie. They responded to the notice and Council then determined to make the declaration. Mr and Mrs Christie made an application for internal review of the menacing dog declaration and that review confirmed the decision to make the menacing dog declaration. Mr and Mrs Christie have now made an application for review of the Council’s decision. The Tribunal sits in the shoes of the decision-maker and has the same powers and must determine the application in accordance with the legislation by way of a fresh hearing on the merits. The Tribunal must make the correct and preferable decision by confirming or setting aside the decision and substituting its own decision or referring the decision back to the decision-maker for redetermination in accordance with directions. The role of the decision maker is to assist the tribunal to make the correct and preferable decision by providing a copy of all relevant documents in its possession. The power to make a menacing dog declaration arises when the decision-maker is satisfied that the dog in question has attacked a person or other animal and caused injury and where the attack is not a serious attack.1 The term “seriously attack” is defined as to attack in a way causing bodily harm, grievous bodily harm or death. Bodily harm and grievous bodily harm have the same meaning as they do in the Criminal Code. Relevantly here, bodily harm is “any bodily injury which interferes with health or comfort”. The question is then whether there has been a bodily injury which interferes with health or comfort. There is also a question about whether there is a discretion not to make a declaration if the threshold question as to whether the dog has attacked is answered in the affirmative. There are Tribunal decisions which 1 Animal Management (Cats and Dogs) Act 2008 (Qld) (‘AM Act’), s 89(3). -- 2 of 4 -- 3 deal with this issue. Where the question of fact is whether a dog has (as in this case) attacked a person or another animal and following consideration of representations made by the owners the decision-maker is satisfied that the relevant ground still exists, it must make the declaration.2 That is, if after consideration of the material a finding is made that the Eli did attack Harrison then the menacing dog declaration must be made. The Christies have filed material in regard to Eli’s behaviour. That material is relevant in determining the question of fact as to whether Eli attacked Harrison. If I am satisfied that Eli did attack Harrison I cannot then use the material to further consider whether the declaration should be made. In accordance with s 94(2) of the AM Act once I am satisfied that Eli did attack Harrison then I must make the declaration. The material before the Tribunal included a report from the Capricorn Coast Hospital dated 15 January 2019 in respect of Harrison which confirmed a diagnosis of dog bite and described that “he was walking in front of a row of shops when a medium sized dog bit the patient on the back with no other injuries”. The injury is described as “posterior torso superficial skin flap V-shaped 3mm x3mm not through full thickness of dermis superficial abrasions surrounding.” The treatment was said to be washing and dressing. I note that there was a prescription given for oral antibiotics. Harrison was observed to appear well, active, alert. There were accompanying photos showing damage to clothes and an open shallow wound on skin. There are some facts in this matter which are not controversial and they are as follows: (a) On 15 January 2019 at around 12:30 pm Ms Ebany King and her son Harrison, who was nearly two years old, were having lunch at the Tropical Vibes café; (b) At the same time Mrs Christie was walking home from work with her dog Eli who was not on a leash; (c) Mrs Christie and Eli walked past the Tropical Vibes café and Harrison noticed the dog and started to follow it; (d) Ms King then left the café to bring Harrison back; (e) When she got near her home Mrs Christie let Eli out of her control so that he could visit another dog which lived two doors down from her house; (f) Mrs Christie turned back and noticed a woman with a young child on the ground with Eli nearby; (g) Ms King informed Mrs Christie that the dog had attacked her child; (h) Mrs King took Harrison to a medical centre and he was assessed; (i) Mrs Christie at the time apologised for what had happened. Ms King claimed that Harrison moved closer to the dog and it turned around and started running towards him and knocked him over and picked him up by the teeth and Mrs Christie was in the vicinity at the time. Mrs Christie states that she did not witness any attack, that the child could have entered the yard the other dogs were in and been attacked by those dogs or may have 2 Imbrogno & Anor v Brisbane City Council [2017] QCATA 148 and Roy v Brisbane City Council [2019] QCAT 311. -- 3 of 4 -- 4 been injured by bushes in the area. The Christies also raised as an issue that Mrs King had changed her story. Mrs Christie confirmed at the hearing that the child was injured and noted that it was a minor skin injury. Mr and Mrs Christie also provided many statements which supported that Eli was not aggressive and expressed surprise that he would attack a child. These included a letter from Eli’s veterinarian which concluded that she had never seen Eli show signs of aggression towards her or anyone else, and noted that Eli had been her patient for five years. I note that Mrs Christie did not call into question the evidence from the hospital which characterised the injury to Harrison as a dog bite therefore any other causes of the injury which is raised cannot be supported. Mrs Christie did not directly observe what happened but she does not deny that as she arrived home she looked back to see Eli with Mrs King claiming that Eli had attacked her child. At the hearing Mrs Christie stated that she had apologised because she had accepted what Mrs King had said. Mrs Christie later characterised what may have happened not as an attack but as a sideward swipe on Harrison on the way through, that they both would have been startled when they came together. She described a sidewards swipe as “a snap, snarl, bite; it’s like stay away. This confirms that Mrs Christie acknowledges that there had been some interaction between Eli and Harrison which could have amounted to a bite. While it’s raised by the Christies that there might have been another dog involved they did not produce any evidence of this. The evidence I accept is that there was a point in time when Eli and Harrison were in close proximity and that following an interaction between them Harrison has been injured and it required some treatment and he was prescribed antibiotics. The injury was described by the hospital as a dog bite and it was treated with washing and dressing. Clearly the injury was not serious. I am satisfied that the injury was as a result of a dog bite and that the dog was the only dog to be in the vicinity, which was Eli. While I acknowledge, having regard to the supporting evidence supplied by the Christies, that this was out of character for Eli there is no evidence to support a conclusion that another dog bit Harrison. I am also satisfied that Eli biting Harrison constitutes an attack which was not serious as it caused bodily harm but not of a serious nature. The Tribunal has considered the written representations and evidence in accordance with s 94(2) of the AM Act and I am satisfied that the grounds to make a menacing dog declaration in respect of Eli still exist having regard to s 89(2) and (3) of the AM Act. In which case, in accordance with s 94(2) of the AM Act I must confirm the menacing dog declaration in respect of Eli. The decision of the Tribunal then is to confirm the menacing dog declaration made by the Council on 19 July 2019. -- 4 of 4 --