Brisbane City Council v Roy [2020] QCATA 147

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Brisbane City Council v Roy [2020] QCATA 147 PARTIES: BRISBANE CITY COUNCIL (applicant/appellant) v EDWIDGE ANGELE GEORGETTE ROY (respondent) APPLICATION NO/S: APL284-19 ORIGINATING APPLICATION NO/S: GAR108-19 MATTER TYPE: Appeals DELIVERED ON: 19 October 2020 HEARING DATE: 26 August 2020 HEARD AT: Brisbane DECISION OF: Senior Member Brown Member Howe ORDERS: 1. Appeal allowed. 2. The decision made 15 October 2019 is set aside. 3. The decision made 12 February 2019 declaring Keziah to be a dangerous dog is confirmed. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – WHAT IS – GENERALLY – where the applicant asserts error by Tribunal in interpreting and applying s 89(2) of the Animal Management (Cats and Dogs) Act 2008 (Qld) – consideration of the scope of discretionary power conferred by provisions of Part 4 of the AM Act – consideration of words ‘may’ and ‘must’ under the Acts Interpretation Act 1954 (Qld) – consideration of the purposes of the AM Act Acts Interpretation Act 1954 (Qld), s 4, s 14A(1), s 32CA Animal Management (Cats and Dogs) Act 2008 (Qld), s 3(c), s 3(d), s 4(g), s 4(l), s 4(m), s 59, s 60, s 61(a), s 89, s 90(1), s 92, s 94, sch 2 Criminal Code Act 1899 (Qld), s 1 Interpretation of Legislation Act 1984 (Vic) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(1), s 142(3)(b), s 146, s 147 -- 1 of 12 -- 2 Acaroglu v Moreton Bay Regional Council [2020] QCAT 76 Cachia v Grech [2009] NSWCA 232 Encyclopaedia Britannica (Australia) Inc v Director of Consumer Affairs [1988] VR 904 Ericson v Queensland Building Services Authority [2013] QCA 391. Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 Imbrogno & Anor v Brisbane City Council [2017] QCATA 148 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 R v Holley; Ex Parte Attorney-General [1997] 2 Qd R 407 Roy v Brisbane City Council [2019] QCAT 311 Samad v District Court of New South Wales (2002) 189 ALR 1 Willis v Hume City Council [2013] VCAT 1033 APPEARANCES & REPRESENTATION: Applicant: K Cartledge, legal counsel of Brisbane City Council Respondent: T Crispin, instructed by Lawyers for Companion Animals REASONS FOR DECISION Dr Roy is the owner of a dog, Keziah. On 5 January 2019 Keziah bit a child. Brisbane City Council (‘BCC’) subsequently made a decision declaring Keziah to be a dangerous dog. The tribunal at first instance set aside the decision of the BCC and instead made a menacing dog declaration.1 BCC appeals the decision.2 The decision at first instance The following facts were not in dispute below or in the appeal: (a) On 5 January 2019 Keziah bit the child on the back of her leg leaving three puncture wounds;3 (b) On the same day Keziah was seized by an officer from the BCC and returned to Dr Roy within the next few days;4 1 Roy v Brisbane City Council [2019] QCAT 311. 2 Application for leave to appeal or appeal filed 22 October 2019. 3 Reasons [5]. 4 Ibid [6]. -- 2 of 12 -- 3 (c) On 10 January 2019 the BCC issued to Dr Roy a Proposed Declaration Notice – Dangerous Dog (‘the Notice’);5 (d) Dr Roy subsequently made submissions to the BCC about why the dangerous dog declaration should not be made;6 (e) On 12 February 2019 the BCC made a dangerous dog declaration.7 [4] The learned member found: (a) The attack by Keziah upon the child was unprovoked and unwarranted;8 (b) The attack by Keziah resulted in the child suffering three small puncture wounds causing bleeding;9 (c) The injuries sustained by the child constituted bodily harm as defined in Schedule 2 of the Animal Management (Cats and Dogs) Act 2008 (Qld) (‘AM Act’);10 (d) The attack was more in the nature of a snap rather than a vicious bite;11 (e) In accordance with s 89(3) of the AM Act the attack was not serious.12 Appeals – the statutory framework [5] An appeal on a question of law is as of right.13 An appeal on a question of fact or mixed law and fact may only be made with the leave of the Appeal Tribunal.14 [6] If an appeal involves the determination of a question of law only, the appeal is as of right. In determining an appeal on a question of law only, the Appeal Tribunal may confirm or amend the decision; set aside the decision and substitute its own decision; or set aside the decision and remit the matter to the tribunal for reconsideration with or without the hearing of additional evidence.15 [7] The Appeal Tribunal should only substitute its own decision if the determination of the question of law resolves the appeal entirely in the appellant’s favour.16 Otherwise the matter should be remitted for reconsideration. [8] If an appeal is one against a decision on a question of fact only or a question of mixed law and fact, and subject to leave to appeal being granted, the appeal must be decided by way of rehearing with or without the hearing of additional evidence as decided by the Appeal Tribunal.17 In deciding the appeal, the Appeal Tribunal may confirm or 5 Ibid [7]. 6 Reasons [7]. 7 Ibid. 8 Ibid [14]. 9 Ibid [30]. 10 Ibid [13] 11 Ibid [30]. 12 Ibid. 13 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) s 142(1). 14 Ibid s 142(3)(b). 15 Ibid s 146. 16 Ericson v Queensland Building Services Authority [2013] QCA 391. 17 QCAT Act ss 147(1), (2). -- 3 of 12 -- 4 amend the decision, set aside the decision and substitute its own decision or set aside the decision and remit the matter to the tribunal for reconsideration.18 [9] The relevant principles to be applied in determining whether to grant leave to appeal are: is there a reasonably arguable case of error in the primary decision;19 is there a reasonable prospect that the applicant will obtain substantive relief;20 is leave necessary to correct a substantial injustice to the applicant caused by some error;21 is there a question of general importance upon which further argument, and a decision of the appellate court or Tribunal, would be to the public advantage.22 What do the parties say? [10] The appeal is confined to a single ground. The BCC says that the learned member erred in law in incorrectly interpreting and misapplying s 89(2) of the AM Act. [11] The BCC says that the learned member, in interpreting s 89(2) and s 89(3) of the AM Act first considered whether there had been a ‘serious attack’ and, having made that determination, proceeded to consider whether the ‘serious attack’ was ‘serious’. This, says the BCC, is not what was intended by the legislation. The BCC says that s 89(3) is not dependent upon s 89(2). [12] The BCC says that s 89(2) of the Act effectively requires a dangerous dog declaration to be made if there is an attack on a human or animal, and the attack results in bodily harm, grievous bodily harm or death. [13] Section 89(3) provides for a menacing dog declaration to be made where there is an attack but the attack does not cause injury. [14] The BCC says that, having found that Keziah attacked the child causing bodily harm, the learned member was required to conclude that a dangerous dog declaration should be made. [15] The overarching premise of Dr Roy’s submissions in response is that a common sense approach should be adopted in interpreting the subject provisions of the AM Act. Unfortunately the submissions, in large part, do not address with any particularity the questions of statutory construction raised in the appeal. [16] Dr Roy says that the decision to declare a dog dangerous involves the exercise of a discretion. Dr Roy also says that the term ‘serious’ in s 89(3) of the AM Act is not defined and should be given its ordinary meaning. [17] Dr Roy relies upon the decision of the tribunal in Acaroglu v Moreton Bay Regional Council23 where the meaning of ‘menacing dog’ was considered. Dr Roy says that the principles adopted in Acaroglu in determining what constitutes a menacing dog may be applied in determining whether a dog is a dangerous dog. In Acaroglu the tribunal considered the decision of the Victorian Civil and Administrative Tribunal in Willis v Hume City Council24 to be persuasive. Dr Roy says that if the criteria referred to in 18 Ibid s 147(3). 19 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 20 Cachia v Grech [2009] NSWCA 232, [13]. 21 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 22 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 578, 580. 23 [2020] QCAT 76. 24 [2013] VCAT 1033. -- 4 of 12 -- 5 Acaroglu are applied to Keziah, the conclusion must be reached that she is not a dangerous dog. [18] Dr Roy says that there was no direct evidence before the learned member of interference with the child’s health or comfort caused by the bite and that bodily harm has not been made out. [19] Dr Roy says that to apply a strict reading of the AM Act as contended for by the BCC belies common sense and that it is difficult to see how such a strict reading of the legislation with respect to dogs of good temperament who are owned by highly responsible professional people can possible make the community any safer. The Animal Management (Cats and Dogs) Act 2008 (Qld) [20] A regulated dog means a declared dangerous dog, a declared menacing dog or a restricted dog.25 A local government may declare a dog to be dangerous, menacing or restricted.26 A declared dangerous dog includes a dog declared to be dangerous under s 94 of the AM Act.27 A dangerous dog declaration may be made if a 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.28 [21] A menacing dog declaration may be made for a dog only if a ground referred to in s 89(2) of the Act exists, except that the attack was not serious.29 [22] ‘Seriously attack’ means to attack in a way causing bodily harm, grievous bodily harm or death.30 ‘Grievous bodily harm’ and ‘bodily harm’ have the meaning given by the Criminal Code Act 1899 (Qld) (‘Criminal Code’), s 1.31 Under the Criminal Code: ‘bodily harm’ means any bodily injury which interferes with health or comfort; ‘grievous bodily harm’ means the loss of a distinct part or an organ of the body; or serious disfigurement; or any bodily injury of such a nature that, if left untreated, would endanger or be likely to endanger life, or cause or be likely to cause permanent injury to health; whether or not treatment is or could have been available. [23] If a local government proposes to make a regulated dog declaration it must first give to the owner of the dog a proposed declaration notice.32 The local government must consider any written representations and evidence submitted by the dog owner.33 If the local government is satisfied that a ground for making the declaration still exists, it must make the regulated dog declaration.34 25 AM Act s 60. 26 Ibid s 89(1). 27 Ibid s 61(a). 28 Ibid s 89(2). 29 Ibid s 89(3). 30 Ibid s 89(7). 31 Ibid sch 2. 32 Ibid s 90(1). 33 Ibid s 94(1). 34 Ibid s 94(2). -- 5 of 12 -- 6 Consideration [24] Although Dr Roy’s submissions appear to argue that the child did not sustain bodily harm, there is no cross appeal by Dr Roy disputing the finding by the learned member that the attack did in fact result in bodily harm. Accordingly we do not intend to address further this aspect of Dr Roy’s submissions. [25] Similarly, although Dr Roy’s submissions appear to contest the finding by the learned member that Keziah attacked the child, in the absence of a cross appeal by Dr Roy we do not propose to address this aspect of the submissions any further. [26] The statutory regime set out in the AM Act as it relates to declarations of dangerous and mischievous dogs was considered in some detail by the Appeal Tribunal in Imbrogno & Anor v Brisbane City Council:35 The steps required to be undertaken in deciding whether to make a regulated dog declaration under Chapter 4, Part 4 of the AM Act include the local government giving to the owner of a dog a proposed declaration notice, the dog owner being given the opportunity to make written representations and provide evidence, the local government considering any representations and evidence by the dog owner and the local government deciding whether to make a regulated dog declaration. [27] In Imbrogno the Appeal Tribunal considered the scope of an application to review a decision made under s 94 of the AM Act:36 … A decision by a local government to issue a proposed declaration notice under s 90 of the AM Act is not a reviewable decision for the purposes of s 188 of the Act. Such a decision is not an ‘original decision’ in relation to which an information notice must be given. The AM Act sets out various circumstances in which an information notice must be given. An information notice is not required to be given at the time a proposed declaration notice under s 90 is given. An application for a review of a decision under s 94 of the Act cannot, in my view, extend to what is in effect the review of a decision under s 90 of the Act which is not otherwise a decision for the purposes of s 188 of the Act. The steps referred to in Van Cuylenburg, and which are required to be considered as part of the review of a decision under s 94 of the Act, are those relating to the circumstances relevant to s 89(2), (3) or (4), a consideration of any written representations and evidence submitted by a dog owner, and a determination as to whether the relevant ground under s 89 still exists. [28] The learned member considered Imbrogno in the context of what he said was the question for determination as contended for by the BCC: … having considered all of the evidence including that before the reviewer, is whether the relevant ground under s 89 still exists after considering ‘any written representation and evidence accompanying them’ pursuant to s 94(1). If nothing changes, or materially changes, then the local government ‘must’ make the regulated dog declaration for the dog.37 35 [2017] QCATA 148, [47]. 36 Ibid [50]-[51]. 37 Reasons [20]. -- 6 of 12 -- 7 [29] The learned member went on: This is in stark contrast with section 89 which confers the power on the local government to make the declaration. Even where it is established that a serious attack has occurred (as defined) the local government, under s 89, still has a discretion whether or not to make the declaration upon complying with the requirements of Part 4.38 [30] The learned member noted what he considered to be the incongruity between s 89 and s 94, the former conferring a discretion and the latter being a mandatory obligation. The learned member questioned the purpose of inviting the owner of the dog to make submissions about the proposed declaration. As the learned member noted: … In some cases the relevant ground will always exist despite the circumstances of the bite and what is said in response to the Notice.39 The purposes of the AM Act and of Chapter 4 of the AM Act [31] The interpretation of an Act that will best achieve the purpose of the Act is to be preferred to any other interpretation.40 [32] The purposes of the AM Act include providing for the effective management of regulated dogs and promoting the responsible ownership of cats and dogs.41 [33] The purposes of the Act are achieved through, among other things, imposing obligations on regulated dog owners, imposing obligations on persons to ensure dogs do not attack or cause fear, and prohibiting anyone from allowing or encouraging a dog to attack or cause fear to people or other animals.42 [34] Chapter 4 of the AM Act deals with regulated dogs. The purposes of Chapter 4 and how the purposes are to be achieved are set out in s 59 of the Act: 59 Purpose of ch 4 and its achievement (1) The purposes of this chapter are to— (a) protect the community from damage or injury, or risk of damage or injury, from particular types of dogs called ‘regulated dogs’; and (b) ensure the dogs are— (i) not a risk to community health or safety; and (ii) controlled and kept in a way consistent with community expectations and the rights of individuals. (2) The purposes are to be achieved primarily by the following— (a) providing for local governments to declare dogs to be dangerous dogs, menacing dogs or restricted dogs; 38 Reasons [21]. 39 Ibid [22]. 40 Acts Interpretation Act 1954 (Qld) s 14A(1). 41 AM Act ss 3(c), (d). 42 Ibid ss 4(g), (l), (m). -- 7 of 12 -- 8 (b) providing for the compulsory desexing of declared dangerous dogs and restricted dogs; (c) providing for identification of dogs as regulated dogs; (d) providing for permits for restricted dogs; (e) imposing conditions on keeping, and requirements for the control of, regulated dogs; (f) allowing authorised persons to seize or destroy dogs in particular circumstances; (g) providing for local governments to administer, and be responsible for, the matters mentioned in paragraphs (a) to (f). [35] We note the focus of Chapter 4 is upon the protection of the community from damage or injury from regulated dogs and ensuring regulated dogs are not a risk to the community and are appropriately controlled and kept, and that dogs are controlled and kept in a way consistent with community expectations and the rights of individuals. In some respects construction of the provisions of Chapter 4 so as to give effect to these stated purposes is difficult. The statutory mechanism for making a declaration about a dangerous dog or a menacing dog [36] Section 89(1) provides that a local government may, by complying with the requirements of Chapter 4, Part 4 of the AM Act, declare a dog to be dangerous, menacing or restricted. A restricted dog has a particular meaning under the AM Act. The various provisions in relation to restricted dogs are not relevant for present purposes and we will consider them no further. [37] The regulated dog process under Chapter 4, as it relates to dangerous dogs and menacing dogs, commences with the local government deciding to make a declaration. If that decision is made the local government gives the owner of the dog a proposed declaration notice stating a number of things including: (a) The details of the dog;43 (b) That the local government proposes to declare the dog to be a regulated dog;44 (c) The type of regulated dog declaration proposed to be made;45 (d) The reasons for the proposed declaration if the declaration is for a dangerous dog or a menacing dog;46 (e) That the dog owner may make written submissions within a stipulated period about why the declaration should not be made.47 [38] A local government must also, before deciding to issue a proposed declaration notice, determine whether what is sought is a dangerous dog declaration or a menacing dog declaration. We pause here to observe that, as explained in Imbrogno, the decision by 43 AM Act s 90(1)(a). 44 Ibid s 90(1)(b). 45 Ibid s 90(1)(c). 46 Ibid s 90(1)(d). 47 Ibid s 90(1)(e). -- 8 of 12 -- 9 a local government whether to issue a proposed declaration notice is not itself a reviewable decision. [39] Having made the decision to issue the proposed declaration notice, the local government must prepare the notice containing the details prescribed by s 90(1) and provide the notice to the owner of the dog. The notice will contain, amongst other things, the reasons for the proposed declaration which will presumably address the matters prescribed by s 89(2) or s 89(3) as may be relevant to the particular circumstances of the case. [40] A dog owner may or may not provide written submissions in response to the proposed declaration notice. If written submissions are received, the local government must consider them and any evidence accompanying the submissions. [41] The local government must then proceed to make a determination in relation to the proposed declaration notice. [42] The local government has the power to withdraw the proposed declaration notice.48 On a proper construction of the section, a proposed declaration notice may be withdrawn by a local government at any time after issue until such time as, after the owner of the dog has made written representations, the local government is satisfied that the relevant ground under s 89 still exists. This is the logical construction of the section, noting that the process prescribed by Part 4 can come to an end either by withdrawal of the proposed declaration notice or the making of the declaration. [43] Dr Roy places some emphasis in her submissions upon the use of the word ‘may’ in s 89 of the AM Act and says that the decision maker retains a discretion as to whether to make a declaration about a dog notwithstanding the words used in s 94(2). [44] The learned member found that under s 89 of the AM Act the local government retained a discretion whether or not to make a declaration ‘upon complying with the requirements of Part 4.’49 The member went on to note however: The incongruity between s 89 and s 94 is plain, one section confers a discretion and the other a mandatory obligation to make the declaration once any representations are taken into account. One might ask in circumstances such as these the purpose of the representations. The difficulty for the dog owner is that once the relevant ground is established, the discretion goes. In some cases the relevant ground will always exist despite the circumstances of the bite and what is said in response to the Notice.50 [45] Though it is not necessary to decide the point here, it is perhaps more accurate to say that the local government has a discretion whether or not to exercise the power to make a declaration up to the point it sets in train the Part 4 process. However, if the local government does not withdraw the proposed declaration notice, and if the local government is satisfied that the relevant ground still exists, there is no exercise of discretion permitted and the declaration must be made. [46] Section 32CA(1) of the Acts Interpretation Act 1954 (Qld) (‘AI Act’) provides that, in an Act, the word ‘may’ used in relation to a power indicates that the power may be exercised or not exercised, at discretion. Section 32CA(2) of the AI Act provides that, in an Act, the word ‘must’ used in relation to a power indicates that the power is 48 AM Act s 92. 49 Reasons [21]. 50 Ibid [22]. -- 9 of 12 -- 10 required to be exercised. Section 32CA(3) of the AI Act provides that s 32CA applies to an Act passed after 1 January 1992 despite any presumption or rule of interpretation. Section 4 of the AI Act provides that the application of the Act may be displaced, wholly or partly, by a contrary intention appearing in any Act. [47] Section 32CA of the AI Act was considered in R v Holley; Ex Parte Attorney- General.51 Fryberg J stated: The view that the intention of s. 32CA(3) was to convert the operation of the common law rule from a prima facie rule to an absolute one is confirmed by the Explanatory Note relating to the section , reference to which is authorised by s. 14B(1)(c) of the Acts Interpretation Act 1954. That note explicitly refers to the common law rule as stated in Pearce and Geddes: Statutory Interpretation in Australia, (1988), at 198–199 and asserts that the section “does away with any such approach for Acts passed after 1st January 1992”.52 [48] The common law rule referred to by Fryberg J was the prima facie rule that ‘may’ in legislation confers a discretion whether or not to exercise a power granted. However the use of permissive words such as ‘may’ is not conclusive. The use of the word ‘may’ in a statute may confer a power or impose a duty. [49] The mandatory nature of the interpretation that ‘may’ appearing in a statute used in relation to a power means the power may be exercised or not exercised at discretion was grudgingly accepted in the Victorian Supreme Court decision of Encyclopaedia Britannica (Australia) Inc v Director of Consumer Affairs53 with respect to similar provision applied by the Interpretation of Legislation Act 1984 (Vic). [50] Even though it may be clear that the intention of the legislature was that a statutory power is permissive, as was observed by the High Court in Samad v District Court of New South Wales:54 … questions may arise as to the nature of the considerations that the person in whom the power is confided may be entitled or bound to take into account in the exercise of the discretion conferred. Issues of this kind are to be resolved as a matter of statutory interpretation, having regard to the language of the statute, the context of the relevant provision, and the general scope and objects of the legislation. [51] The High Court went on to state: Whether a statute, which confers a power, on its true construction also imposes a duty to exercise the power in certain circumstances, may also affect the form of relief that is appropriate where there has been a failure to exercise the power; it may affect the question whether the appropriate order is an order to make a certain decision, or to do a certain act, or merely to consider the matter according to law. And, even if a statute does not impose a duty to exercise the power, it may circumscribe the considerations that are relevant to the exercise of a discretion. In every case the task is to construe and apply the statute. 51 [1997] 2 Qd R 407. 52 Ibid 407, 433. 53 [1988] VR 904. 54 (2002) 189 ALR 1, 10 [32]. -- 10 of 12 -- 11 The statutory context may be crucial. Where a statute confers rights or entitlements, as in Finance Facilities, it may be easy to conclude that the legislature did not intend that they could be taken away by the exercise of a discretion reposed in an administrative authority.55 [52] The words of s 89(1) clearly confer upon a local government a capacity to choose between alternative courses of action: a choice that must be made in the exercise of a discretion.56 A local government may, subject to compliance with the requirements of Part 4, declare a dog to be dangerous, menacing or restricted. The discretion not to make any declaration at all is confirmed by s 90(1) which states ‘If a local government proposes to make a regulated dog declaration …’ (emphasis added) and then outlines the process available to that end starting with a notice of proposed declaration given to the owner. [53] Section 89(2) sets out the considerations the local government is required to take into account in exercising the discretion conferred by s 89(1) to declare a dog to be dangerous. Section 89(3) sets out the considerations the local government is required to take into account in exercising the discretion conferred by s 89(1) to declaring a dog menacing. [54] If the local government is satisfied about the facts out of which the power to make a declaration about a dog arises, the local government must, by s 94(2) of the AM Act, make the declaration. [55] The ‘relevant ground’ in s 94(2) is a reference to the considerations which must be taken into account in exercising the power to make a regulated dog declaration to which we have earlier referred, that is ss 89(2) and (3). [56] Use of the word ‘must’ in s 94 indicates that the power granted is required to be exercised.57 There is no discretionary element involved save that the decision maker must be satisfied that the relevant ground under s 89 is made out. If it is not, the regulated dog declaration proposed cannot be made. [57] Nor, do we consider s 94(2) permits in such circumstance any other order than to refuse to make the proposed regulated dog declaration. The mandatory notice of proposed declaration under s 90(1)(c) must state the particular type of regulated dog declaration proposed to be made. Where the relevant ground supporting the particular type of regulated dog declaration is not made out, the mandatory notice provision of s 90 cannot have been satisfied in respect of another type of declaration. [58] Turning then to the decision by the learned member, it follows from the aforesaid that, having found that the considerations set out in s 89(2) had been satisfied, the learned member was obliged to make the dangerous dog declaration. He had no discretion to do otherwise. [59] For the sake of completeness we will address the finding by the learned member that the attack by Keziah upon the child was not serious. The learned member found: Section 89(3) makes provision for making a menacing dog declaration only if a ground mentioned in subsection (2), serious attack exists. Despite that wording, 55 Ibid 11, [35]-[36]. 56 Samad v District Court of New South Wales (2002) 189 ALR 1. 57 AI Act s 32CA(2). -- 11 of 12 -- 12 if in fact the attack was not serious, then a menacing dog declaration can be made. However, subsection (3) is only engaged if subsection (2) is satisfied that is there is a serious attack, causing bodily harm.58 [60] We respectfully disagree with the learned member’s interpretation of s 89(3). Section 89(3) provides that a menacing dog declaration may be made for a dog only if a ground mentioned in s 89(2) exists for the dog, except that the attack was not serious. Section 89(2) provides for a dangerous dog declaration to be made where a dog has attacked, or may seriously attack a person or another animal or where a dog has acted, or may act, in a way that causes fear to a person or another animal. As we have observed, ‘seriously attack’ has a particular meaning. On a plain reading of the words of s 89(3) a menacing dog declaration may be made where the attack by a dog, actual or potential, does not result in bodily harm, grievous bodily harm, or death. [61] Accordingly, the learned member erred in concluding that s 89(3) is only engaged if s 89(2) is satisfied and there is a serious attack causing bodily harm. [62] Having found that Keziah had suffered three small puncture wounds which caused bleeding, regardless whether the assault is described as a snap or a vicious bite, it was not open to the learned member to then make a finding that the attack was not serious as defined in s 89(7) given it clearly caused bodily harm within the meaning of that term given by the Criminal Code, s 1.59 [63] The appeal must be allowed, the decision below set aside and the decision to declare Keziah a dangerous dog must be confirmed. 58 Reasons [29]. 59 bodily harm means any bodily injury which interferes with health or comfort. -- 12 of 12 --