Bradshaw v Moreton Bay Regional Council [2017] QCAT 281

CITATION: Bradshaw v Moreton Bay Regional Council [2017] QCAT 281 PARTIES: Tammy Bradshaw (Applicant) v Moreton Bay Regional Council (Respondent) APPLICATION NUMBER: GAR136-17 MATTER TYPE: General administrative review matters HEARING DATE: 9 August 2017 HEARD AT: Brisbane DECISION OF: Member Olding DELIVERED ON: 14 August 2017 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision of the Moreton Bay Regional Council to make a Destruction Order in respect of the dog “Hank” is confirmed. 2. The publication of photographs or copies of photographs of a young female child entered into evidence in this matter, showing an injury to her face, is prohibited. CATCHWORDS: ADMINISTRATIVE REVIEW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – power to make destruction order not concurrently with dangerous dog declaration – where no further risk or non compliance identified – where alleged warrant issued on invalid grounds Animal Management (Cats and Dogs) Act 2008 (Qld), s 125, s 126, s 127, s 127A APPEARANCES: APPLICANT: Tammy Bradshaw -- 1 of 14 -- 2 RESPONDENT: Moreton Bay Regional Council REPRESENTATIVES: APPLICANT: represented by Mr M Taylor of Counsel instructed by Couper Geysen RESPONDENT: represented by Ms D Whitehouse, instructed by Moreton Bay Regional Council REASONS FOR DECISION [1] Ms Bradshaw has applied for review of the decision of the Respondent Council to make a destruction order in respect of her dog, Hank. [2] The order has as its genesis an incident on 21 October 2016 in which a child, then seven years of age, suffered a serious injury to her face. [3] The Tribunal’s role is to decide the matter by way of a fresh hearing on the merits to produce the correct and preferable decision.1 [4] I have decided to confirm the decision. The facts [5] The following facts are either expressly accepted by both parties or based on unchallenged evidence; I accordingly find that: Background a) Hank is a large, male dog of the Neapolitan Mastiff breed. b) Ms Bradshaw was at all relevant times Hank’s owner and responsible for him. c) Hank is an entire male dog, that is, he has not been de-sexed. The incident on 21 October 2016 d) On the evening of 21 October 2016, Ms Bradshaw was attending a gathering of neighbours outside the home of one of the neighbours and had Hank with her. e) Hank was unrestrained but when Ms Bradshaw saw the child approaching, she held Hank by the collar. 1 Queensland Civil and Administrative Tribunal Act 2009 (Queensland) (“QCAT Act”), s 20. -- 2 of 14 -- 3 f) An incident occurred after the child started to pat Hank. Hank moved forward towards the child. Witnesses thought that Hank had merely nudged the child, but then saw the child was crying and bleeding. g) Although no-one knows precisely how the injury to the child occurred, Ms Bradshaw accepts that Hank caused it. h) The incident came as a surprise and without warning. No signs of aggression preceded the incident. It happened too quickly for Ms Bradshaw to restrain Hank, even if she were able to do so. i) Neither Ms Bradshaw nor the child’s mother had any prior concerns about the child being near Hank. The nature of the injury j) The child was taken by ambulance that evening to a hospital where she presented “distressed and in pain”, with “blood periorally – large bite over right cheek – irregular border – opening communicating with oral cavity and vermillion border of lip”.2 k) This description is consistent with photographs provided by the child’s mother, which also show to the lay observer abrasion above the child’s right eyebrow and two lines of abrasion leading from just below her eye to the hole beside her mouth. l) The child was admitted to hospital and the wound was treated with plastic/constructive surgery. m) By 27 October 2016, in medical terms the wound had healed well with no signs of infection or inflammation.3 n) However, the child’s cheek is scarred and may require further surgery as she grows. She also suffers emotionally both from a fear of dogs and self-consciousness about her scar. The actions of the Council o) On 9 December 2016, the Council declared Hank to be a “dangerous dog”. p) The Council was empowered to also make a destruction order when it made the dangerous dog declaration, but did not do so at that time. q) As a result of the dangerous dog declaration, Ms Bradshaw was required to comply with certain conditions, including displaying a 2 Copy of hospital medical report. 3 Copy of hospital medical report. -- 3 of 14 -- 4 dangerous dog warning sign, having an appropriate enclosure for Hank and having him de-sexed within 90 days. r) Ms Bradshaw complied with the conditions relating to signage and the enclosure but not the requirement to have Hank de-sexed within the 90-day period. She did not do this because a then council officer told her, incorrectly, that it was not necessary to do so until review of the Council’s decision had been finalised. The requirement to have Hank de-sexed was stated in the documents accompanying the dangerous dog declaration sent to Ms Bradshaw. At the time of the Tribunal hearing on 9 August 2017, Ms Bradshaw had booked Hank in for de- sexing on 11 August 2017. s) Subsequent to the making of the dangerous dog declaration, complaints were made to the Council that Hank had been seen on the street unaccompanied on two occasions and once being walked without a muzzle. Council officers undertook inquiries in response to the complaints but the allegations were not substantiated. t) Ms Bradshaw exercised her right to seek an internal review of the decision to make the dangerous dog declaration and the Council confirmed the decision. u) Later, following a review of its procedures and complaints about its actions in respect of this particular dog, including complaints through political channels, the Council determined that it was a mistake not to issue a destruction order. v) There had not been any further attack by Hank, nor any substantiated non-compliance with the conditions of the dangerous dog declaration (other than the failure to de-sex Hank). w) The Council then sought and obtained a warrant to enable Council officers to enter Ms Bradshaw’s home and seize Hank. x) On 23 May 2017, the Council seized Hank and issued the destruction order that is the subject of this review. y) Since that time, Hank has been held at the animal refuge at Dakabin. z) Before Hank was seized, but after being declared a dangerous dog, Ms Bradshaw and her partner continued to allow his young children, and other children in Ms Bradshaw’s extended family, to play with Hank. Statutory framework [6] The Council’s power to issue a destruction order is found in Part 4 of the Animal Management (Cats and Dogs) Act 2008 (Qld), which includes the following provisions: -- 4 of 14 -- 5 Part 4 Seized dogs 126 Application of pt 4 This part applies if an authorised person has, under section 125 or a warrant, seized a dog. 127 Power to destroy seized regulated dog (1) This section applies if the dog is a regulated dog. (2) The authorised person may, without notice, immediately destroy the dog if— (a) the person reasonably believes the dog is dangerous and the person can not control it; or (b) an owner of the dog has asked the person to destroy it. (3) The person may destroy the dog 3 days after the seizure if— (a) the dog— (i) was not seized under section 125(1)(b)(i); and (ii) has no registered owner, or apparently has no registered owner; and (iii) is not the subject of a regulated dog declaration by the relevant local government; and (b) the person or the relevant local government does not know of anyone who owns, or is a responsible person for, the dog. (4) If subsection (3) does not apply, the person may make an order (a destruction order) stating the person proposes to destroy the dog 14 days after the order is served. (5) The destruction order must— (a) be served on— (i) the registered owner of the dog; or (ii) if the dog has no registered owner—any person who owns, or is a responsible person for, the dog; and (b) include or be accompanied by an information notice about the decision to give the destruction order. (6) If a destruction order is made for the dog, the person may destroy the dog 14 days after the order is served if no application for internal review has been made relating to the order. (7) If an application for internal review has been made against the order, the person may destroy the dog if— -- 5 of 14 -- 6 (a) the internal review is finally decided or is otherwise ended; and (b) no application for external review of the order has been made; and (c) the order is still in force. (8) If an application for external review of the order is made, the person may destroy the dog if— (a) the external review is finally decided or is otherwise ended; and (b) the order is still in force. 127A Concurrent regulated dog declaration and destruction order (1) This section applies if a local government— (a) makes a regulated dog declaration under section 94 for a seized dog; but (b) does not give any owner of the dog notice of its decision under section 95. (2) Despite the dog not being a regulated dog, an authorised person may make a destruction order for the dog if it is appropriate to do so. (3) As soon as practicable after deciding to make the destruction order, the authorised person must serve the destruction order on the relevant owner of the dog. (4) The destruction order must include or be accompanied by— (a) if a notice is required under section 95(3)—a combined notice under section 95(3) about the decision to make a regulated dog declaration and an information notice about the decision to give the destruction order; or (b) if an information notice is required under section 95(4)—a combined information notice about the decisions to make a regulated dog declaration under section 95(4) and to give the destruction order. (5) Section 127(6) to (8) applies to the destruction order. (6) In this section—relevant owner, of a dog, means— (a) the registered owner of the dog; or (b) if the dog has no registered owner—any person who owns, or is a responsible person for, the dog. [7] There is no dispute that Hank was a regulated dog at the time he was seized and when the destruction order was made and that he remains a regulated dog. -- 6 of 14 -- 7 [8] There is also no dispute that, if s 127(4) is engaged, the Council may, but is not required to, make a destruction order. That is to say, it is a matter for the discretion of the decision-maker, having regard to all relevant circumstances. [9] However, Mr Taylor, who appeared for the Ms Bradshaw, submitted that the power under s 127(4) is not engaged in the particular circumstances of this case. This submission was based on a number of cumulative and alternative propositions, which I deal with in turn below. The “same set of circumstances” issue [10] Mr Taylor submitted that, upon issuing the dangerous dog declaration under s 95, the Council was precluded from later issuing a destruction notice arising out of the same circumstances. That is to say, having investigated the matter and determined that the objects of the Act could be met by declaring Hank to be a dangerous dog and the conditions attached to his care as a regulated dog, the Council was precluded from issuing a destruction order, unless some new circumstance arose relevant to the assessment of the risks associated with the dog. [11] There is no express limitation of this kind on the operation of the power in s 127(4) to make a destruction order. In its terms, the section allows a destruction order to be made when part 4 applies. Part 4 applies if an authorised person has, under s 125 or a warrant, seized a dog. [12] As I understand it, the submission is based on what is said to be the scheme of the provisions. The scheme of the provisions is, so the argument goes, that in dealing with a dangerous dog an authorised person has the choice to (a) make a dangerous dog declaration; (b) make a concurrent dangerous dog declaration and destruction order under s 127A; or, having previously made a dangerous dog declaration, make a destruction order only if there is non-compliance with conditions of the dangerous dog declaration or, possibly, new evidence of risk to the community. [13] That description of the scheme of the provisions is said to be supported by the provision in s 127A for concurrent dog declarations and destruction orders. [14] There are, with respect, two difficulties with that submission. [15] One is that s 127A was introduced into the Act after s 127, by an amendment to the Act. It is difficult to see how resort to that later amendment may permissibly assist in construing s 127. [16] The second is that the evident purpose of s 127A is to allow a destruction order to be issued, and to allow for internal and external review of the decision to make the destruction order, notwithstanding that previous notice of a regulated dog decision had not been given. In other words, to allow for -- 7 of 14 -- 8 notice of both decisions to be given together and the usual review rights to apply. [17] That description of the evident purpose of s 127A is consistent with the explanatory notes to the Bill that introduced s 127A, which describe the amendment as “pivotal to achieving the policy objective of streamlining review processes”.4 [18] In my view, neither the terms of s 127A nor its evident purpose supports a limitation on the circumstances in which a destruction order may be made under s 127 in respect of a seized, regulated dog. The “seizure” issue [19] The combined effect of s 126 and s 127(4) is that a destruction order may be made if: (a) an authorised person has seized a dog, under either s 125 or a warrant; and (b) the dog is a regulated dog; and (c) the dog has a registered owner. [20] There is no dispute that the seizure was made by an authorised person and at the relevant time Hank was a regulated dog and had a registered owner. [21] What is disputed is whether the seizure was made under a warrant or alternatively under s 125. Mr Taylor submitted that the Council must have acted lawfully in seizing the dog in order to lawfully destroy the dog. Was Hank seized under a warrant? [22] Part 2 contains various entry powers. The only power relevant to the current matter is found in s 111(1)(c), under which an authorised person may enter a place if the entry is authorised by a “warrant”, which under the definition in the Schedule means “a warrant issued under chapter 5, part 2, division 2, subdivision 2”. [23] Subdivision 2 contains sections 117 to 121. Section 117 provides that an authorised person applying for a warrant “must prepare a written application that states the grounds on which the warrant is sought”. Section 118(1) provides that a magistrate may issue the warrant only if satisfied there are reasonable grounds for suspecting there is a particular thing or activity at the place at which the warrant is to be executed that may provide evidence of an offence against the Act. [24] Mr Taylor submitted that the Council sought to enter the property not for the purpose, or only for the purpose, of obtaining evidence of an offence but 4 Explanatory notes to the Agriculture and Forestry Legislation Amendment Bill 2013, 19. -- 8 of 14 -- 9 rather, having already decided to issue a destruction order, the entry was for the purpose of seizing Hank to enable a destruction order to be made. [25] This not being a ground for obtaining a warrant under subdivision 2, Mr Taylor submitted that the warrant was a nullity. Hence, the seizure was unlawful and could not be followed by the lawful issue of a destruction order. [26] In a literal sense, all that s 118 requires, in order for a magistrate to issue a warrant, is for the magistrate to be satisfied that there are reasonable grounds for suspecting that there is a thing or activity at the place the warrant is to be executed that may provide evidence of an offence against the Act. The magistrate stated in broad terms in the warrant that he was “satisfied that entry to the property is necessary to allow the [authorised] person to take action under the Animal Management (Cats and Dogs) Act 2008”. I infer that the magistrate was satisfied that there were reasonable grounds for suspecting that there would be evidence, namely Hank as an entire dog, of failure to de-sex a dangerous dog as required, that circumstance having been alleged in the application for the warrant. [27] It might be argued that, even with that reasonable satisfaction, a warrant issued mainly for another purpose, namely seizing the dog to enable a destruction order to be issued, would be invalid. However, in that regard, Ms Whitehouse, who appeared for the Council, drew attention to s 120, which provides: 120 Defects in relation A warrant is not invalidated by a defect in the warrant, or in compliance with section 117, 118 or 119, unless the defect affects the substance of the warrant in a material particular. [28] There is no defect that affects the substance of the warrant, which is that it authorised entry to the property for the purpose of seizing Hank. [29] In any case, the warrant was in fact issued and the issue of the warrant was not challenged when the Council officers executed the warrant. And there is no doubt that Hank, as an entire dog, might provide evidence of the offence of failing to have a declared dangerous dog de-sexed within the required 90 day period. [30] Hank was, in my view, seized “under” the warrant, which expressly described Hank and referred to him by name. Was Hank seized under section 125? [31] I have considered whether Hank could also be said to have been seized under s 125. [32] Seizure of Hank was authorised by s 125 if an authorised person “under part 2” entered the property where Ms Bradshaw lived and Hank was kept, and the authorised person reasonably believed that Hank: -- 9 of 14 -- 10 (i) has attacked, threatened to attack or acted in a way that caused fear to, a person or another animal; or (ii) is, or may be, a risk to community health or safety.5 [33] Part 2 provides in Division 1 for powers of entry, including entry under a warrant. I conclude that entry under the warrant was entry under part 2. [34] I infer that, in the circumstances, the officer who seized Hank reasonably believed that Hank has attacked a person, namely the injured child. Given the express intention of making a destruction order, it may also be inferred that the officer reasonably believed that Hank was, or may have been, a risk to community safety. [35] However, Mr Taylor submitted that, in the case of a regulated dog for which a destruction order was not issued concurrently with a dangerous dog declaration, in the absence of a further attack6 the only basis for seizure could be under s 125(1)(c) for non compliance with a compliance notice. [36] Mr Taylor submitted that this interpretation is consistent with a passage at page 11 of the explanatory notes for the Bill for the Animal Management (Cats and Dogs) Act 2008, which states: Similarly, the seizure and destruction powers under this Bill are necessary for the enforcement of the regulatory framework in the interests of public health and safety. The circumstances in which these powers may be exercised relate primarily to incidents of non-compliance with keeping conditions for regulated dogs or where there is an immanent (sic) risk to community health and safety. [37] There are several difficulties with this submission. [38] The first is that the terms of explanatory notes cannot override the plain words of a provision. On a plain reading of s 125, if an authorised person holds a reasonable belief that a regulated dog may be a risk to community safety, the dog may be seized. It would be surprising if it were otherwise; that such a belief being held, officials were powerless to act merely because they had not acted previously. [39] Secondly, the provision is not ambiguous so that resort to extrinsic materials would be permissible to determine its meaning. 5 Section 125(1) also requires a reasonable suspicion that a “dog mentioned in the part” [that is, part 2] is at the place. Although there is no express mention of regulated dogs in part 2, s 125(1)(c) expressly specifies regulated dogs. There are references to a dangerous dog declaration and a menacing dog declaration in part 2, which I take to “mention” declared dangerous dogs and declared menacing dogs, which in turn are subsets of regulated dogs. Neither counsel suggested that the s 125 seizure power did not extend to regulated dogs. 6 Or, I infer, other new evidence to support the formation of a reasonable belief that the dog has threatened to attack or behaved in a way that causes fear. -- 10 of 14 -- 11 [40] Thirdly, the statement in the explanatory notes does not purport to be exhaustive. It is qualified as referring to the circumstances in which the powers would “primarily” be exercised. This admits of the possibility of the powers being exercised in other circumstances. [41] I conclude that the seizure of Hank was also authorised by, and in the relevant sense made under s 125. [42] Mr Taylor also submitted that, because Ms Bradshaw was misled by Council officers into the misunderstanding that de-sexing Hank could await the outcome of the review process, and that she was in compliance with the conditions attaching to the dangerous declaration, and acted accordingly, the Council “should be estopped from withdrawing the promises of their authorised officers to the detriment of the applicant”. I took this submission to be directed to both the validity of the warrant and the application of s 125. [43] No authority was offered for the proposition that the Council could be estopped from due administration of the legislation. But in any case, for the reasons already given, I consider that the seizure of Hank was made under the warrant; whether the Council might at some point be estopped from taking further steps under the legislation does not affect the conclusion that the seizure was made under the warrant. It is similarly irrelevant to the conclusion that seizure of Hank was authorised under s 125(1)(a). [44] It follows that the power under s 127(4) to make a destruction order is enlivened. I now turn to consider whether, as a matter of discretion, the destruction order should be made. Should a destruction order be made? [45] It is a serious matter to order the destruction of a family pet. [46] There are no express criteria under the Act to guide the exercise of the discretion to make a destruction order. However, it is appropriate to have regard to other provisions of the Act that reveal its underlying objectives. [47] The focus of s 3, which states the purpose of the Act, is relevantly upon providing for “the effective management of regulated dogs”. Similarly, s 4, which lists how the objects of the Act are to be primarily achieved, refers to the imposition of obligations on particular persons to ensure that dogs do not attack or cause fear. [48] Chapter 4 of the Act deals specifically with regulated dogs. The purposes of the chapter set out in s 597 include to protect the community from injury 7 Although located in Chapter 4, section 59 is an indicator of the objects of the provisions dealing with regulated dogs in Chapter 5, which are linked to the Chapter 4 provisions. The Tribunal and the Appeals Tribunal have drawn upon s 59 in this way in previous decisions, such as Thomas v Ipswich City Council [2015] QCATA 97, [16]. -- 11 of 14 -- 12 or risk of injury and to ensure that dogs are not a risk to community safety and are controlled and kept in a way consistent with community expectations and the rights of individuals. [49] Those purposes are to be achieved primarily by, amongst other things, providing for local governments to declare dogs to be dangerous dogs, imposing conditions on the keeping of dangerous dogs and allowing authorised persons to seize or destroy dogs in particular circumstances, as well as providing for compulsory de-sexing of dangerous dogs and imposing conditions on the keeping of such dogs.8 [50] Community safety is obviously a key issue in exercising the discretion. Under that umbrella, the nature of any attack that has occurred, the behavioural aspects of the dog to the extent that they are able to be established, and the exposure of the community to risk of injury, including arrangements for the keeping of the dog and the likelihood of persons responsible for the dog taking proper steps to minimise risk to the community, are obviously relevant. [51] It is important to bear in mind that the Act does not contemplate that every dog that has attacked and caused injury is to be destroyed. Every declared dangerous dog will have seriously attacked or acted in a way that caused fear to a person or another animal or be a dog that in the opinion of an authorised person may seriously attack or act in a way that causes fear.9 Nevertheless, the decision-maker has a discretion whether or not to make a destruction order. The nature of the incident/injury [52] As noted above, no-one knows precisely how Hank caused the injury to the child. It came without warning. No signs of aggression preceded the incident. [53] Because no-one knows precisely what happened, there is no evidence to indicate whether or not, on this occasion, Hank intended to cause injury. However, he did in fact caused this serious injury. [54] On any view, the injury Hank caused to the child is of a serious nature. As the Respondent’s counsel noted, if the child had been slightly shorter, an even more serious injury, quite possibly causing serious injury to her eyesight, might have occurred. Hank’s behaviour generally [55] The evidence indicates, and I find, that the incident came as a surprise to those who know Hank. He has not injured any person before or since the 8 Section 59(2). 9 Section 89(2). -- 12 of 14 -- 13 incident, nor has he displayed behaviours in his usual environment that indicate he would be likely to do so.10 [56] There is in evidence a report by the animal care manager at RSPCA facility at Dakabin. It is not surprising that, with this serious incident in his history, the report indicates that if he came into their care the RSPCA would not seek to re-home Hank. [57] The report also identified some signs of possible aggression towards strangers and other dogs while housed at the Dakabin facility. I do not give this significant weight. The circumstances in which Hank has been held at the facility are unusual and likely to have impacted upon his behaviour. They do not necessarily give an accurate indication of his likely behaviour in his usual environment. Further, there is no evidence that the officer giving the report, although no doubt experienced with dogs, is qualified as an expert in animal behaviour. [58] Ms Bradshaw gave evidence, which I accept, that Hank had been treated for an ear infection around the time of the incident, which may have impacted on his behaviour. However, ear infections may occur again in Hank’s life. There is also evidence, which I accept, that there had been some pestering of Hank by children at his fence, but it was not suggested that the pestering was relevant to the incident in which the injury occurred. Steps taken to reduce risk [59] Since being declared dangerous, Hank has been housed in a secure enclosure. When a Council officer advised that the gaps in the palings in the fence for his enclosure were too wide, Ms Bradshaw’s partner took prompt steps to rectify the issue. [60] That Ms Bradshaw has also sourced training for Hank also speaks well of her commitment to managing his behaviour.11 [61] I give no weight to the complaints of Hank being out on the street or not muzzled in public in late 2016, as they were investigated by the Council and not substantiated. [62] On the other hand, Ms Bradshaw allows the young children of her partner, with whom she now shares a home, to play with Hank. Similarly, Ms Bradshaw allows Hank to interact with other children in her extended family. [63] This reflects both Ms Bradshaw’s confidence that Hank will not cause any further injury and her and her family’s love for Hank. But with the earlier 10 Ms Bradshaw provided statements, which I accept as truthful, from various people who have known Ms Bradshaw and Hank for varying periods and attest that they have not seen him acting aggressively. 11 The statements provided by Ms Bradshaw also support my conclusion that she is generally a responsible dog owner. -- 13 of 14 -- 14 incident occurring without warning and seemingly out of character, the risk to the children is a concern. Conclusion on destruction order [64] It is clear that Ms Bradshaw loves and cares for Hank and has responsibly taken steps to reduce the risk of Hank causing injury again. [65] However, the sheer seriousness of the injury caused to a young child, and that Hank’s action on the night of the incident came without warning, are powerful considerations against setting aside the destruction order. I consider the risk of another serious injury occurring is unacceptable. That would be so even without Hank being allowed to interact with young children at Ms Bradshaw’s home, but the risk is compounded in those circumstances. [66] The decision to make a destruction order must be confirmed. In the interests of the child, I will make an order prohibiting the publication of the photographs and copies of photographs of the child entered in evidence.12 12 QCAT Act, s 66 -- 14 of 14 --