Balens v Moreton Bay Regional Council [2018] QCAT 297

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Balens v Moreton Bay Regional Council [2018] QCAT 297 PARTIES: MARK ANDREW BALENS (applicant) v MORETON BAY REGIONAL COUNCIL (respondent) APPLICATION NO/S: GAR048-18 MATTER TYPE: General administrative review matters DELIVERED ON: 3 September 2018 HEARING DATE: 6 August 2018 HEARD AT: Brisbane DECISION OF: Member Allen ORDERS: The decision of the Moreton Bay Regional Council made on 22 February 2018 for the destruction of the dog ‘Titan’ is set aside. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where dog declared dangerous dog – where history of non-compliance with requirements of declaration – where dog seized – whether discretion to issue destruction order in respect of dog should be exercised Animal Management (Cats and Dogs) Act 2008 (Qld), s 3, s 4, s 97, s 118, s 127, s 131 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 21, s 24 Bradshaw v Moreton Bay Regional Council [2017] QCATA 139 Thomas v Ipswich City Council [2015] QCATA 97 APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: D. MacKellar -- 1 of 8 -- 2 REASONS FOR DECISION [1] Mr Balens is the owner of Titan, a male mastiff, who in 2016 was made subject to a dangerous dog declaration1 by the Moreton Bay Regional Council. In January 2018 Titan Council officers seized Titan from Mr Balens’ property under a warrant2 issued on the basis that the dog was evidence in regard to the commission of offences by Mr Balens. Several days later the Council issued a destruction order3 in respect of Titan which decision was confirmed under internal review on 22 February 2018. Mr Balens has applied to the Tribunal for external review4 of the destruction order. The law [2] The Tribunal when reviewing a decision stands in the shoes of and has all of the powers of the decision maker.5 The Tribunal must hear and decide a review by way of a fresh hearing on the merits and the purpose of the review is to make the correct and preferable decision.6 The decision-maker’s role is to use their best endeavours to help the Tribunal so that it can make the decision and must provide a written statement of reasons for the decision and any document or thing in the decision-maker’s possession or control that may be relevant to the Tribunal’s review of the decision.7 The Tribunal may confirm or amend the decision, set aside the decision and substitute its own decision; or set aside the decision and return the matter for reconsideration to the decision-maker, with directions the tribunal considers appropriate.8 [3] The Animal Management (Cats and Dogs) Act 2008 (Qld) (‘AM Act’) is the relevant legislation in respect of this matter. Under the AM Act a Council may declare a dog dangerous and if the dog is later seized by an authorised officer the Council may then make an order stating that the person proposes to destroy the dog 14 days after the order is served.9 The notice is served on the registered owner of the dog who then has 14 days to make an application for internal review. The internal review decision in this case confirmed the original order and it is now for the Tribunal to decide the review. [4] There are no criteria set out in the AM Act in regard to the exercise of the discretion to make a destruction order under s 127 of the AM Act. The appeal tribunal has set out the considerations when exercising the discretion in Bradshaw v Moreton Bay Regional Council10 as follows: [46] The Council’s power to make the destruction order was based on s 127(4) of the AM Act which does not prescribe how the power to make a destruction order is to be exercised nor what factors the decision-maker must take into account. But open-ended discretions are not to be exercised at the whim of the 1 Animal Management (Cats and Dogs) Act 2008 (AM Act) s 94. 2 AM Act, s 118. 3 AM Act, s 127. 4 AM Act, s 188. 5 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 19. 6 QCAT Act, s 20. 7 QCAT Act, s 21. 8 QCAT Act, s 24. 9 AM Act, s 127. 10 [2017] QCATA 139. -- 2 of 8 -- 3 decision-maker. The scope, purpose, and objects of the legislation must be taken into account to interpret the extent and ambit of discretion. [47] As stated in Thomas v Ipswich City Council [2015] QCATA 97 at [18]: It is clear that the AM Act is primarily directed towards the effective management and responsible ownership of dogs and that the destruction of a dog is a ‘last resort.’ It is generally where the mechanisms in the Act for management fail, or are ineffective, that destruction arises. The essential question is whether the dog constitutes, or is likely to constitute, a threat to the safety of other animals or to people, by attacking them or causing fear, to the extent that the threat may only be satisfactorily dealt with by the destruction of the dog. [48] The Appeal Tribunal in Thomas referred to the derivation of the legislative intent of the Act from the purposes of the Act set out in s 3 and s 4 which states how those purposes are to be achieved. Section 3 refers to the purpose of effective management of regulated dogs and the promotion of responsible ownership of dogs. And s 4 refers to measures to achieve that, such as imposing obligations on regulated dog owners and imposing obligations on particular people to ensure dogs do not attack or cause fear. Declaration of Titan as a dangerous dog [5] Titan was declared a dangerous dog following an attack by him on a cat, Paddy, which had been tethered in the front yard of a neighbour, Mr Bellavar’s house, which resulted in the death of the cat, Paddy. The attack occurred on 25 March 2016 while Mr Balens11 stated that he was returning from a walk with Titan. He states that the dog was on a lead but it was provoked by the cat and Titan pulled the lead out of his hand and ran to the cat but the cat was unable to run away. Mr Balens considered that he took all reasonable steps to prevent Titan from going after the cat. He considered that the cat would have been able to run away if it had been loose. [6] Mr Bellavar the owner of Paddy reported the incident to the Council. Mr Bellavar in his statement12 confirmed that the Paddy had been tethered in a harness in his front yard. He states that he heard a horrible noise from the front yard and that when he went out he observed Paddy rolling around on the grass and Mr Balens dragging Titan off his property. Paddy had been pulled out of his harness and died several minutes after the attack. Mr Bellavar says that when he went to Mr Balens to confront him about the attack Mr Balens blamed the fact that Paddy was tethered. As the attack occurred during the Easter weekend Mr Bellavar informed the Council of it several days later and that ultimately resulted in Titan being declared a dangerous dog. [7] Following an investigation the Council made a Proposed Regulated Dog Declaration on 5 July 2015.13 The notice gave Mr Balens the opportunity to make written representations as to why Titan should not be declared a dangerous dog. Mr Balens claims that he was not provided with the notice and therefore did not get the opportunity to make representations. The Council confirmed that the notice was sent to Mr Balens’ address. The Council made a regulated dog declaration – Dangerous 11 Exhibit 4. 12 Exhibit 3. 13 AM Act, s 89. -- 3 of 8 -- 4 Dog in respect of Titan on 18 August 2016.14 The documents accompanying this notice included an information notice which advised that Mr Balens was required to comply with the requirements for keeping a dangerous dog15 in the attached Schedule 1 and that, should he fail to comply, he could be subject to a penalty notice in the amount of $914 and be issued with a compliance notice. He was also advised of his rights of internal and external review. Mr Balens did not take advantage of the rights of review, though he says he did not receive the advice from council in that regard. [8] The requirements in regard to a dog which is subject to a dangerous dog declaration are as follows: (a) Owner must ensure the relevant dog is desexed within 3 months;16 (b) A relevant dog must be implanted with a PPID and must, at all times, wear a collar with attached identification tag; (c) A relevant dog must not be in place that is not the relevant place for the dog unless it is muzzled and under the effective control of someone who has the control of no more than 1 dog at the same time; (d) An enclosure for a relevant dog must be maintained at or on the relevant place for the dog and the dog must, unless there is a reasonable excuse, be usually kept in the enclosure (there is also extensive list of requirements set out for the enclosure in the Act and its regulations); (e) A sign, supplied by the Council, must be placed at or near each entrance to the relevant place notifying the public that a relevant dog is kept at the place; (f) A relevant dog must not be kept at a place other the relevant place for the dog; and (g) If a relevant person changes residential address, the person must give the Council notice of the person’s new residential address within 7 days. [9] Mr Bellavar confirmed in his statement that he received notice from the Council of the dangerous dog declaration on 10 October 2016 and that he sent a letter to various neighbours advising them of that a dangerous dog declaration had been made in respect of Titan, the letter set out in summary the requirements that had to be met by Mr Balens as a result of the declaration. Non-compliance by Mr Balens [10] Mr Balens was issued with a compliance notice by the Council on 21 November 2016 ordering him to construct an enclosure that complies with the conditions for the keeping of a Regulated Dog – dangerous by 1 December 2016, supply to Council a vet certificate that Titan has been de-sexed and supply to Council a vet certificate that lists the microchip number for Titan both by 16 December 2016. Mr Balens was advised if he failed to comply the Council may issue an infringement notice for $914 and or enter his property, seize Titan and place a destruction order on him and or take 14 AM Act, s 94. 15 AM Act, s 97, Schedule 1; Animal Management (Cats and Dogs) Regulation 2009 (Qld), s 6, s 18. 16 AM Act, s 70. -- 4 of 8 -- 5 legal action against him for a breach of the AM Act. I note that a penalty infringement notice was issued to Mr Balens by the Council on 13 April 2017 in the amount of $914. [11] Mr Balens was issued with a further compliance notice on 21 April 2017 requiring him to desex Titan by 5 May 2017. Another compliance notice was issued to Mr Balens on 10 October 2017 requiring him to construct an enclosure for Titan in accordance with the Schedule and the regulations, to ensure that Titan is usually kept within the enclosure, and that 24 hour contact details be engraved on the regulated dog identity tag on or before 24 October 2017, with a Council officer attending at 11am on 25 October 2017. [12] There have been several occasions following the dangerous dog declaration where Titan had been observed in the street by neighbours of Mr Balens. There was also an incident described which occurred after the attack on Mr Bellavar’s cat but before the dangerous dog declaration. The neighbours were informed of the dangerous dog declaration and the requirements which Mr Balens had to meet in regard to Titan by letter from Mr Bellavar, who wished to ensure that Mr Balens met his obligations in regard to the dangerous dog declaration. [13] In particular, Mrs Richards17 observed Titan in her front yard on 9 November 2016. She provided a statement with photos of Titan taken at the time. Mrs Richards noted that Titan was not muzzled or under the effective control of any person. Mrs Richards advised Mr Balens that the dog was loose by which time it had left her yard and moved to another street. Mrs Richards had informed Mr Bellavar and he then followed Titan to another house and took some phots of Titan at that house. Mr Balens attended at Mrs Richard’s house to clean up a mess that Titan had left and then drove up to the street where Titan had gone. [14] Mrs Richards recounted another interaction with Mr Balens in regard to Titan which occurred on 17 January 2018. Mr Balens in his statement confirmed he was home that day although he did not confirm the identity of the dog in the photo produced by Council and said it was not his front yard. On that day Mrs Richards was taking her two dogs for a walk with her 13 year old son and two of his friends. On the return walk home Mrs Richards son expressed concern that Mr Balens was out the front working on an unregistered car and raised concerns that Titan would be outside with Mr Balens, and it was often unrestrained by any means. Mrs Richards said she reassured her son that the dog was not allowed to be out. [15] Mrs Richards further stated that when they came around the bend of their street they could see Mr Balens still working on the car and Mrs Richards son crossed to the other side of the street and told his friends who had the dogs to do the same. He then called out to Mr Balens ‘Mark, is the dog restrained’. Mr Balens answered ‘No’. Mrs Richards then observed Mr Balens walk over to a location. She says it was at this time that she saw Titan unrestrained and unmuzzled in the front yard. She continued to walk home and observed that Mr Balens was holding Titan by the collar. As Mrs Richards was walking towards her home she said ‘if that dog touches my dogs its dead meat’. Mr Balens became very angry and yelled expletives at her. He then threatened her son about balls hitting his cars. Mrs Richards observed the children becoming upset and shaken. Upon reaching her property Mrs Richards said to Mr Balens that 17 Exhibit 1. -- 5 of 8 -- 6 ‘I might just go inside and ring the Council about your dangerous dog not being restrained.’ After securing her house and reassuring the children Mrs Richards then rang the council to complain that Titan was not being kept in accordance with the dangerous dog declaration. Mrs Richards was advised by the Council on 18 January 2018 that they had seized Titan and that she should be vigilant in regard to retribution. She states that when she drove past Mr Balens’ house that afternoon she was subjected to verbal abuse and hand gestures by Mr Balens and that her family are concerned for their safety as a direct consequence of Mr Balens not adhering to the dangerous dog declaration. I note that in her evidence at the hearing Mrs Richards confirmed that Titan had not given her any reason for concern though she would be concerned if her small dogs were in the front yard. [16] Mr Bellavar in his statement confirmed that he had a discussion with Mrs Richards about Titan wandering on 9 November 2016 and that he had followed Titan to an address and taken photos of him. He also observed that Mr Balens located Titan and took him back to his property. Mr Bellavar stated that the Council was advised of the incident on 9 November 2016 and a Council officer attended at Mr Balens’ address and spoke to him. Mr Bellavar also stated that he had been threatened by Mr Balens on another day. Mr Bellavar confirmed that he had been advised by Mrs Richards of the incident on 17 January 2018 and that he was aware that as a result Titan was seized by Council. [17] The destruction order noted the history of Titan and Mr Balens’ interactions with the Council in regard to the AM Act and that, on 17 January following an investigation by Council, it was confirmed that Titan was outside of his enclosure and not under effective control. Ms Sharmaine Hunter, the Council Officer who made the original decision, provided oral evidence at the hearing. She stated that she had conducted the enclosure inspection in October 2017 and it had not been completed and that remained the case up until the date of seizure. She confirmed that as at the date of seizure Titan’s registration had also not been paid. MS Hunter stated that she had advised Mr Balens that if he wished to dispute the destruction order he would need to build the enclosure. Submissions [18] At the hearing Mr Mackellar set out all of the requirements of the AM Act in regard to regulated dangerous dogs which the Council submitted Mr Balens had not met. In particular that Titan’s enclosure did not meet requirements, that the dog was not usually in the enclosure and not muzzled and under effective control when in public. There were also issues raised about whether the dog had been desexed and had a PPID inserted. It appeared from the evidence including statements from Mr Balens and the photographic evidence that the dog had been de-sexed and the PPID was inserted. At the time of seizure though the photographic evidence indicated that the enclosure that existed divided off Mr Balens’ back yard and it was accessible to the street by a two way garage. Mr Balens provided photos of the enclosure that he had built with assistance from a friend during the period since the seizure. Mr Mackellar was given an opportunity to review the photos and he generally confirmed the enclosure complied with the requirements of the AM Act. There were issues though with the type of mesh used which was not child proof and which would require re-meshing with narrow mesh so that children could not climb up the gate and gain access. There was also a need to ensure that Titan was not able to dig his way out of the enclosure. -- 6 of 8 -- 7 [19] Mr Balens acknowledged at the hearing that he had been non-compliant with the requirements relating to the dangerous dog declaration. He confirmed that he was under an onus to meet the conditions and he had a lack of funds which contributed to his inability to meet the requirements of the AM Act. Including paying for Titans registration for the current period. He confirmed that he was happy to comply with the MA Act and that he had done everything he could. [20] Mr Mackellar for the Council submitted that: Titan was a regulated dangerous dog and that there were numerous breaches of the AM Act committed by Mr Balens; the destruction order was issued due to the non-compliance and the risk to the community; the Council was responsible to ensure that the community was kept safe and, in this case, due to Mr Balens’ non-compliance, that required Titan be subject to a destruction order. Discussion [21] The cases cited above make it clear that a destruction order is a last resort and only to be used where the danger posed by the dog can only be satisfactorily dealt with by the making of a destruction order. In this case there was clearly an incident in 2016 which rightly resulted in Titan being declared a dangerous dog and Mr Balens has had great difficulty complying with the requirements of the AM Act. On several occasions Titan has been allowed to wander away from his property and it has only been following the making of the destruction order that an enclosure which is capable of being compliant has been constructed. Mr Balens has a poor relationship with his neighbours and the issues in regard to his dog are exacerbated by his negative interactions with his neighbours. [22] The events of 17 January 2018 highlight this. Titan was in Mr Balens’ yard and unrestrained. Mr Balens, when requested, ensured that he did restrain the dog and there was no incident in regard to the dog. The dog was in Mr Balens’ yard, which is the relevant place under the AM Act and while it was not in its enclosure it is clear that it was under Mr Balens’ control as he was able to restrain it when asked. The incident was heightened by the interaction between Mr Balens and his neighbour. [23] Mr Balens is very attached to Titan and his doctor indicated he would be adversely affected if Titan was to be destroyed. Mr Balens is therefore motivated to ensure that he complies with the AM Act. He understands that he is under scrutiny from his neighbours who will vigilantly ensure that if he is non-complaint the Council will be notified. Of course the purpose of the Act is to ensure the effective management of regulated dogs by imposing obligations on regulated dog owners. Once Titan has been declared dangerous, Mr Balens’ neighbours should be reassured that the requirements of the regulated dog regime will be met to ensure community safety. [24] I consider that Mr Balens has now evinced an intention to comply with the dangerous dog requirements of the AM Act by in particular his construction of the enclosure for Titan, which only requires some small modification to be fully compliant. He also understands that he must keep the dog in the enclosure unless it is under effective control and that when the dog is in public it must be muzzled. He stated that he had been training Titan to wear the muzzle before the dog was seized. [25] I am not satisfied that the discretion should be exercised to disuse a destruction order in respect of Titan as I believe that Mr Balens will be able to ensure that he abides by -- 7 of 8 -- 8 the requirements of the dangerous dog declaration. I therefore set aside the order of the Council. [26] I note that there are still some compliance issues in regard to the enclosure and payment of registration fees and that the Council will need to satisfy itself that the requirements of the dangerous dog declaration have been met before Titan may be released.18 18 AM Act, s 131(3)(d). -- 8 of 8 --