Coppock & Anor v Logan City Council [2020] QCAT 184

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Coppock & Anor v Logan City Council [2020] QCAT 184 PARTIES: TAMARA COPPOCK (first applicant) PAUL COPPOCK (second applicant) v LOGAN CITY COUNCIL (respondent) APPLICATION NO/S: GAR020-19 MATTER TYPE: Animal Management DELIVERED ON: 18 May 2020 HEARING DATE: 19 June 2019 HEARD AT: Brisbane DECISION OF: Member Holzberger ORDERS: The Tribunal sets aside the decision under review and substitutes its decision to declare the subject dog ‘Luna’ as a regulated dangerous dog. CATCHWORDS: ADMINISTRATIVE REVIEW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – whether menacing dog declaration ought to be set aside or confirmed – where the subject dog seriously attacked another dog – consequences of finding of serious attack Animal Management (Cats and Dogs) Act 2008 (Qld), s 89(2), s 89(3), s 89(7), s 94(2) APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: Self-represented by Corinn Head REASONS FOR DECISION Mrs Coppock applied to the tribunal for a review of an internal review decision of the Logan City Council (‘the Council’) dated 11 December 2018, confirming the Council’s decision to declare her English Staffordshire Terrier dog ‘Luna’, a menacing dog pursuant to section 89(2) of the Animal Management (Cats and Dogs) -- 1 of 4 -- 2 Act 2008 (Qld) (‘the Act’). On 2 April 2019 Mr Coppock Mrs Coppock’s husband, was joined as the second applicant.1 The declaration arises as a result of an incident which occurred at the property situated at 2-4 Horseshoe Crescent, New Beith which adjoins the Coppocks’ property. It is alleged that Luna attacked and injured a Maltese Terrier dog, ‘Bella’, owned by the Coppocks’ neighbours Mr Villetri and Ms Van Wyk. The incident was investigated by the Council’s animal management inspector Mr Rogers who initially recommended that the Coppocks be fined for failing to control Luna but that no further action (including the issue of a regulated dog declaration) be taken. This was apparently communicated to both the Coppocks and Mr Villetri. Mr Villetri’s solicitors requested that the Council review its position. Subsequently on 28 August 2018 the Council issued a written advice to Mr Villetri advising it was satisfied that ‘there is sufficient evidence to regulate the subject dog “Luna” as a regulated menacing dog.’2 On 29 August 2018 the Council issued a Proposed Declaration Notice: Declared Menacing Dog to Mrs Coppock (‘the original decision’). On 24 October 2018 after considering the Coppocks’ submissions, the Council made the Menacing Dog Declaration. At the request of the Coppocks, that decision was internally reviewed and confirmed on 11 December 2018 (‘the internal review decision’). It is that internal review decision which is the subject of this external review. It is uncontroversial that the dividing fence between the two properties permitted Luna to enter and exit Mr Villetri’s property at will, which Luna regularly did without apparent objection from the Mr Villetri and Ms Van Wyk. The fence has since been repaired and made secure. At about 8:00pm on 8 May 2018, Luna was in Mr Villetri’s property with Mr Villetri and Bella. It is Mr Villetri’s evidence that Luna lunged at and bit Bella on her hind leg and refused to let go. He intervened and called to Mr Coppock who was in his property next door for assistance. On hearing the cry, Mr Coppock went to Mr Villetri’s assistance and separated Luna’s jaws, releasing its grip on Bella’s leg. Mr Villetri suffered two bite wounds during his intervention, one of which he says was inflicted by Luna. Ms Van Wyk suffered minor scratches to her neck when she also intervened. Mr Coppock says Luna did not bite either of them because her jaws were locked on Bella’s leg until his intervention and nothing occurred after that time. 1 Tribunal Directions dated 2 April 2019, Direction 1. 2 Letter from Logan City Council to Mr Villetri dated 28 August 2018. -- 2 of 4 -- 3 CCTV footage of the incident was provided to the Council by Mr Villetri and I have viewed the footage.3 That footage is black and white and low quality definition without audio. It commenced at the moment of the attack. It is accepted that it is footage of the incident and that the dogs involved are Bella and Luna. It does not show what caused Luna to attack nor does it show how Mr Villetri and Ms Van Wyk sustained their injuries. It is not contested that Luna attacked Bella. The evidence in that regard from Mr Villetri and Mr Coppock is supported by the video footage. I note that both the original decision and the internal review decision were made in respect of the attack on Bella rather than the alleged attack on Mr Villetri and on the evidence, I am not prepared to make a finding that Luna attacked Mr Villetri. The Coppocks raised the issue of provocation during the Council process, and while this was not pressed in these proceedings there is simply no evidence of it. It is also uncontroversial that Bella suffered injuries as a result of the attack. Mrs Coppock in fact, took Bella to a vet where her wounds were treated and her hind leg stitched. Given the nature of the attack the wounds were relatively minor, although if not for the immediate intervention of Mr Villetri and the timely assistance of Mr Coppock, these injuries almost certainly would have been more serious. While the internal review decision-maker suggests that the attack may be considered serious, neither the original decision nor the internal review decision makes such a finding – I suspect, to accommodate a declaration that Luna is a menacing dog rather than a dangerous one. In my view, section 89(2) of the Act requires the decision-maker in the circumstances where an attack has occurred, to determine whether or not it is a serious attack. Section 89(7) of the Act states, ‘“ seriously attack” means to attack in a way causing bodily harm, grievous bodily harm or death’. I am satisfied that Bella suffered bodily harm as a result of the attack and in those circumstances I find that she was seriously attacked by Luna. Section 94(2) of the Act requires that if an internal or external reviewer of a declaration ‘is satisfied that the relevant ground under section 89 still exists, it must make the regulated dog declaration for the dog’. I accept that if a dangerous dog declaration is made under section 89(2)(b) in circumstances where the local authority is of the opinion that a dog’s behaviour indicates that it may seriously attack or cause fear to a person or animal, evidence of modification of the dog’s circumstances or behaviour may allow a reviewer to form a different opinion and to set aside the declaration. 3 CCTV footage dated 17 January 2019. -- 3 of 4 -- 4 A declaration made under section 89(2)(a) is more problematic. I accept that in making a decision as to whether to make the declaration under section 89(2)(a), the original decision-maker has a discretion to decline to do so if of the view, for example, that there is little or no chance of a future attack as a result of matters implemented by its owner. I am however of the view that section 94 prevents a reviewer from doing so once the reviewer is satisfied that a serious attack has occurred. The use of the words ‘still exists’ is in my view unfortunate.4 While appropriate to a circumstance, it is arguably less appropriate to an event which has or has not occurred. However, in my view, the grounds set out in section 89(2)(a) and historical serious attacks still exist at the time of the review and accordingly, a regulated dog declaration must be made. Section 89(3) of the Act provides, ‘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.’ Neither the original decision-maker nor the internal review decision-maker has made a finding that the attack was serious or not serious. While I acknowledge that the evidence suggests that the dog is usually good natured, has no history of attacks, and had been permitted to roam between the two properties and interact freely with Bella, none of those factors are mentioned in section 89(3) as permitting a menacing dog declaration to be made. Having found that Luna seriously attacked Bella, the menacing dog declaration must be set aside and a dangerous dog declaration be substituted for it. 4 Animal Management (Cats and Dogs) Act 2008 (Qld) s 94(2). -- 4 of 4 --