Chaplin v Sunshine Coast Regional Council [2020] QCATA 83

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Chaplin v Sunshine Coast Regional Council [2020] QCATA 83 PARTIES: KARA ROSE CHAPLIN (appellant) v SUNSHINE COAST REGIONAL COUNCIL (respondent) APPLICATION NO/S: APL357-19 ORIGINATING APPLICATION NO/S: GAR226-19 MATTER TYPE: Appeals DELIVERED ON: 3 June 2020 HEARING DATE: 28 May 2020 HEARD AT: Brisbane DECISION OF: Senior Member Aughterson (Presiding) Member Kanowski ORDER: The decision of the Tribunal made on 29 November 2019 is confirmed. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – WRONG PRINCIPLE – GENERALLY – where in review proceeding tribunal commented on character of original decision-maker – where tribunal said original decision- maker’s decision should not be lightly overturned – whether irrelevant matter taken into account – whether wrong principle applied APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – FUNCTIONS OF APPELLATE COURT – OTHER FINDINGS – where tribunal found a risk of dog attacking humans – whether there was evidence to support that finding Animal Management (Cats and Dogs) Act 2008 (Qld), s 127(4) -- 1 of 7 -- 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20 Fox v Percy (2003) 214 CLR 118 House v The King (1936) 55 CLR 499 APPEARANCES & REPRESENTATION: Appellant: N Edridge instructed by Michael Faltermaier Lawyers Respondent: G Lalor, Supervisor, Prosecutions and Reviews, Sunshine Coast Regional Council REASONS FOR DECISION This is an appeal by Ms Chaplin against the decision of the Tribunal made on 29 November 2019 to confirm the decision made by Sunshine Coast Regional Council to destroy her dog named Sarge.1 Background Noosa Shire Council declared Sarge a dangerous dog in 2016, after he fatally attacked another dog. In 2018, while out for a run with Ms Chaplin’s partner, Sarge was involved in a confrontation with another dog. The other dog was not injured. However, Sarge was not muzzled at the time. Muzzling of a declared dangerous dog in public is required under the Animal Management (Cats and Dogs) Act 2008 (Qld) (‘Animal Management Act’).2 There was a third incident, one evening in 2019. Unknown to Ms Chaplin, her garage roller door had not fully closed after her children left some toys lying under it. Also, an internal door between the garage and the house had not been shut. Sarge got out. As he had been indoors, he was not muzzled. He attacked and seriously injured a dog that was being walked nearby on a leash. Sunshine Coast Regional Council then decided to destroy Sarge (the decision has not yet been carried out). The decision was made by Mr Michael Gilbert. He is a Senior Response Service Officer authorised by the Council to make such decisions. Ms Chaplin then applied for a review of the destruction decision. Mr Guy Lalor, a Council supervisor, conducted the internal review. He confirmed the destruction decision. Ms Chaplin next applied for a review by the Tribunal. The evidence provided by Ms Chaplin included evidence of Mr David Haywood, a ‘professional dog trainer and dog behaviour specialist’,3 and two veterinarians. One of the veterinarians, Ms Rimini Quinn, specialises in animal behaviour. Ms Quinn said Sarge is fearful of unfamiliar dogs. She said this can result in ‘erratic behavioural responses’.4 On the other hand, 1 Chaplin v Sunshine Coast Regional Council [2019] QCAT 371. 2 Schedule 1, s 3. 3 Chaplin v Sunshine Coast Regional Council [2019] QCAT 371, [49]. 4 Ms Quinn’s report of 26 April 2019, 1. -- 2 of 7 -- 3 Ms Quinn said that Sarge ‘behaves appropriately with familiar dogs’5 and is neutral toward other species. It is clear that Ms Quinn meant humans as one of the other species. She added: ‘Fear of unfamiliar dogs is neurologically different to a fear of people or children. The 2 conditions can co-exist, but one does not predict the other.’6 Ms Chaplin acknowledged in the review proceeding that Sarge poses a threat to the safety of unfamiliar dogs, and that ‘he therefore poses a related threat of causing fear to other persons’.7 She argued that these threats can be satisfactorily managed by ‘full compliance with the mandatory conditions of dangerous dog ownership’.8 These conditions include that the dog is ‘usually kept’ in a childproof enclosure,9 and that the dog is muzzled in public.10 Ms Chaplin acknowledged that she had not fully complied with the conditions. However, she argued that she could be relied upon to fully comply in the future. She pointed to her strong motivation, her increased awareness of the risks posed by Sarge, and her fuller knowledge of the required conditions. The evidence provided by the Council included a statement and oral evidence from Mr Gilbert. The learned member who heard the matter discussed in the reasons for his decision whether the threat posed by Sarge could be satisfactorily dealt with only by his destruction.11 It was concluded that destruction was the only satisfactory outcome. He commented that ‘there remain many feasible scenarios in which Sarge could escape from his approved premises despite the best intentions or conduct of Ms Chaplin’.12 It was further considered that if Sarge were to escape, there would be a high probability of a further serious attack. The learned member confirmed the Council’s decision to destroy Sarge. Ms Chaplin has appealed on two grounds. Originally, these involved questions of fact as well as of law. However, as ultimately argued, the grounds involve questions of law only, so that leave to appeal is not required.13 First ground of appeal: irrelevant matter and wrong principle Ms Chaplin submits that the learned member took into account an irrelevant matter and acted upon a wrong principle. 14 Ms Chaplin submits that these errors become apparent from a consideration of the following paragraph in the reasons for the decision: I was impressed by the evidence and conduct of Mr Michael Gilbert of the Council, who not only had to seize Sarge but issue the destruction notice. The audio recording of Mr Gilbert with Ms Chaplin and Sarge after the third 5 Ms Quinn’s report of 26 April 2019, 1. 6 Ibid. 7 Chaplin v Sunshine Coast Regional Council [2019] QCAT 371, [45(a)]. 8 Ibid, [45(b)]. 9 Animal Management Act, Schedule 1, s 4. 10 Ibid, Schedule 1, s 3(1). 11 Chaplin v Sunshine Coast Regional Council [2019] QCAT 371, [74-82]. 12 Ibid, [79]. 13 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3). 14 See House v The King (1936) 55 CLR 499, 505. -- 3 of 7 -- 4 incident, when Sarge was seized by Mr Gilbert, demonstrated his kindness, empathy, and sympathy with Ms Chaplin and the dog. Mr Gilbert would not lightly issue a destruction notice on a dog – indeed Sarge is only the second notice in his work for the Council over the course of five years. His decisions and actions should not be lightly overturned.15 Ms Chaplin referred to section 20 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’): 20 Review involves fresh hearing (1) The purpose of the review of a reviewable decision is to produce the correct and preferable decision. (2) The tribunal must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits. We also note that there is no presumption that a decision being reviewed is correct, and that there is no onus which an applicant for review must discharge.16 Ms Chaplin submits that her case was finely balanced, and that the character of Mr Gilbert was an irrelevant consideration that could not have operated in her favour. Mr Gilbert’s personal qualities, Ms Chaplin submits, did not bear on the real issues concerning the risk posed by the dog and her ability to manage that risk. Further, Ms Chaplin submits that the comment that Mr Gilbert’s decisions and actions should not be lightly overturned suggests that ‘something other than a fresh hearing on the merits took place or that some standard other than the balance of probabilities applied’.17 Further, ‘it has the effect of erroneously shifting the standard of proof because of the perceived reasonableness of the original decision-maker’.18 We note that a similar phrase of not lightly overturning a decision was used in the decision of the Full Court of the Supreme Court of South Australia in David Paul Avon v Administrative Appeals Court.19 The legislative provision that operated in that case spoke of an appeal being conducted as a review.20 The appeal was from a specialist tribunal. Justice Olsson said that the reviewing body: … will necessarily bear well in mind and give due regard to the fact that the decision appealed against is that of a specialist tribunal, which ought not, lightly, to be overturned.21 Justice Matheson quoted observations from another case to the effect that a reviewing body starts not with a blank page but with an existing formal decision.22 We also note that QCAT is not bound by the rules of evidence, and may inform itself in any way it considers appropriate.23 Further, in a review proceeding, the original 15 Chaplin v Sunshine Coast Regional Council [2019] QCAT 371, [73]. 16 Queensland Building and Construction Commission v Mudri [2015] QCATA 78, [10-12]. 17 Submissions on behalf of Ms Chaplin filed on 8 April 2020, [13]. 18 Ibid. 19 [1997] SASC 6619. 20 Ibid, [80]. 21 Ibid, [96]. 22 Ibid, [25]. 23 QCAT Act, s 28(3)(b),(c). -- 4 of 7 -- 5 decision-maker ‘must use his or her best endeavours to help the tribunal so that it can make its decision on the review’.24 In our view, there is no reason why the tribunal reviewing a decision to destroy a dog cannot place some reliance on the experience, expertise and judgment of a Council officer who has dealt with similar situations. However, ultimately, the tribunal must reach its own conclusions on relevant issues and on whether destruction is the correct and preferable decision. It was open to the learned member to place reliance, as he did, on the evidence of Mr Gilbert, based on an assessment of his expertise and credibility. This did not involve taking into account an irrelevant matter. The observations about Mr Gilbert’s character, while of limited relevance, helped to explain why the learned member saw fit to place some reliance on his evidence. Ms Chaplin submits, in effect, that there was no proper basis for reliance to be placed on Mr Gilbert’s views, as there is scant information about his experience and record. While there is evidence he had worked for the Council for almost five years, there had been no exploration in the evidence about how much of that time involved decision- making responsibilities relating to dog destruction. Further, Ms Chaplin submits in effect, the comments of the learned member about Mr Gilbert cannot be explained away as mere asides or innocuous observations about evidence. First mention of Mr Gilbert’s period of employment and the number of destruction decisions was made earlier in the reasons, under the heading ‘Evidence for the Council’.25 Significantly, the passage quoted at paragraph 13 above was set out in a key section of the reasons, toward the end, headed ‘Applying the law and evidence’. It is true that there was little information about Mr Gilbert’s experience and record, but we do not consider that the learned member placed a heavy or undue reliance on his evidence. The learned member’s reasons ran to 84 paragraphs. He noted that a fresh review on the merits was to be conducted.26 He also noted that the Tribunal was ‘required to undertake extensive enquiry before exercising its discretion under section 127(4) of the [Animal Management Act]’.27 Section 127(4) is the provision which enables a dog destruction decision to be made. It is noteworthy that reference was made to the Tribunal itself exercising the discretion. The reasons show that the learned member carefully considered the history of the matter, the risks posed by Sarge, the steps Ms Chaplin has taken to further mitigate the risks, Ms Chaplin’s strong desire to avoid any further incidents, and the submissions of both parties. The evidence was discussed in detail, including the substantial amount of evidence gathered since Mr Gilbert made his decision. The risks were also assessed in some detail, in terms of probability and consequence. It was concluded that there was a high probability of a further attack by Sarge, 24 QCAT Act, s 21(1). 25 Chaplin v Sunshine Coast Regional Council [2019] QCAT 371, [31]. 26 Ibid, [18]. 27 Ibid, [27]. -- 5 of 7 -- 6 involving serious consequences. The section in the reasons ‘Applying the law and evidence’ was concluded as follows: Assessing the risks, and being cognisant of the intention of the [Animal Management Act], I am satisfied that the threat posed can only be dealt with satisfactorily by the destruction of Sarge.28 The balance struck by the Council in its decision to have Sarge destroyed is appropriate. It is a correct decision, and it is the preferable decision.29 It is clear that despite placing some reliance on Mr Gilbert’s views, the learned member engaged in his own process of reasoning: weighing up the risks, the other evidence, and the purposes of the legislation. It was not a case of simply adopting some analysis articulated by Council staff. It is apparent from the reasons as a whole that the role of the Tribunal was properly understood, including the need to independently exercise the discretion in section 127(4) of the Animal Management Act. The learned member performed that task. The comment about not lightly overturning Mr Gilbert’s decisions and actions, read in isolation, could suggest undue deference and a failure to grasp the required task. However, we are satisfied that this concern is removed by a consideration of the reasons as a whole. We do not consider that there was an error of law as contended in the first ground of appeal. Second ground of appeal: finding without evidence Ms Chaplin notes the following passages in the learned member’s reasons: There can be no confidence that, once set upon a course of aggressive behaviour Sarge would not do the same thing again if the opportunity was presented, with the risk that, on a future occasion, it could involve other animals or a child.30 The consequences of an attack by Sarge remain unchanged from what has happened on three earlier occasions: Sarge will attack with an intention to seriously injure or kill. If a dog being attacked by Sarge was under the control of a child or infirmed person there is a risk that such child or person could also be attacked.31 Ms Chaplin submits there was no evidence to support the conclusion that Sarge poses a risk of attacking a child or an infirmed person. Ms Chaplin also took us to passages in Fox v Percy32 as to the role of an appellate body in relation to factual findings. We accept that the expert evidence, from Ms Quinn and Mr Haywood, indicated that the threat posed by Sarge was to unfamiliar dogs, rather than to humans. While it was uncontentious that an attack by Sarge on a dog could cause fear to humans, there was no suggestion in the evidence generally – not just the expert evidence – or the submissions that there was a risk of Sarge targeting humans. The first passage quoted in paragraph 32 above, read alone, does appear to embody a finding that Sarge poses a risk of attacking a child independently of attacking a dog. 28 Chaplin v Sunshine Coast Regional Council [2019] QCAT 371, [82] 29 Ibid, [83]. 30 Ibid, [71]. 31 Ibid, [80]. 32 (2003) 214 CLR 118. -- 6 of 7 -- 7 However, when the second, more detailed, passage is taken into account, it is evident that the learned member identified the risk as an attack by Sarge on a dog, with the risk to a child or infirmed person being a collateral risk. It is easy to imagine situations where a person trying to protect their pet dog from an attack by Sarge could themselves be injured by him, intentionally or otherwise. We consider that the finding made by the learned member of a collateral risk to humans was open as a matter of inference. It did not have to be supported by specific evidence. We do not consider that there was an error of law as contended in the second ground of appeal. Conclusion In our view, errors of law have not been demonstrated. We confirm the decision made at first instance. -- 7 of 7 --