Craig & Anor v Brisbane City Council [2017] QCAT 40

CITATION: Craig & Anor v Brisbane City Council [2017] QCAT 40 PARTIES: Tanya Craig Ross Craig (Applicants) v Brisbane City Council (Respondent) APPLICATION NUMBER: GAR016-16 MATTER TYPE: General administrative review matters HEARING DATE: 23 August 2016 HEARD AT: Brisbane DECISION OF: Member McLean Williams DELIVERED ON: 7 February 2017 DELIVERED AT: Brisbane ORDERS MADE: 1. Application for review dismissed. CATCHWORDS: Dangerous dog declaration pursuant to s 94 of the Animal Management (Cats and Dogs) Act 2008 (Qld) – circumstances of actual attack on a person Animal Management (Cats and Dogs) Act 2008 (Qld), s 3, s 59, s 60, s 61, s 62, s 70, s 89, s 94, s 97, s 98, Schedule 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24 APPEARANCES: APPLICANT: Tanya Craig and Ross Craig, in person. RESPONDENT: Ms Nilusha Rajapahse Brisbane City Legal Practice, Brisbane City Council -- 1 of 7 -- 2 REASONS FOR DECISION Introduction [1] On 19 January 2016 Mrs Tanya Craig filed an Application to Review a Decision, seeking a review of a decision by the Brisbane City Council (‘the Respondent’) by which her husband’s dog, a male Irish Wolfhound named Panzer, was declared to be dangerous. Because Mr Ross Craig is the registered owner of Panzer, he was subsequently joined as a co-applicant in these proceedings, by an order of the Tribunal. [2] The Respondent made the decision now under review on 20 October 2015, pursuant to the Animal Management (Cats and Dogs) Act 2008 (Qld) (‘the Animal Management Act’). In a letter sent to Mr Craig on that date the Brisbane City Council advised that Panzer was to be declared dangerous after an incident on 24 September 2015 in which Panzer had nipped a member of the public, whilst off-leash, in the Boorabbin Picnic Area. [3] Chapter 8 Part 1 of the Animal Management Act provides that the decision may be internally reviewed. Mr and Mrs Craig availed themselves of the opportunity for an internal review, filing same with the Brisbane City Council on 4 November 2015. [4] On 26 November 2015 Mr Ashley Booth, Brisbane City Safety Manager conducted an internal review of the original decision to declare Panzer to be dangerous, pursuant to s 186 of the Animal Management Act. Mr Booth’s internal review decision was to affirm the original decision. [5] Section 188 of the Animal Management Act provides that decisions of this type may be externally reviewed, by QCAT. Accordingly, the original decision (as was subsequently affirmed by Mr Booth during the internal review), now becomes - in the language of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’) - a “reviewable decision”, pursuant to Chapter 2 Division 3 of the QCAT Act. The external review is conducted by means of a fresh hearing on the merits. QCAT now ‘stands in the shoes’ of the original decision-maker.1 All of the evidence available to the original decision maker, as well as any fresh evidence, may be considered by QCAT. Factual background [6] On 24 September 2015 Panzer was still only a puppy, albeit a very large one. Early that morning, Mrs Tanya Craig had taken Panzer together with two other dogs (one owned by Mrs Craig and one owned by her daughter), for a walk at the Boorabbin Picnic Area. Mrs Craig regularly walks her dogs at this location. One of the reasons for frequenting the Boorabbin Picnic Area is that it contains a Brisbane City Council off-leash dog enclosure, where dogs may run without a leash. Whilst Mrs Craig was inside the off- 1 QCAT Act, s 20(2). -- 2 of 7 -- 3 leash enclosure, another dog and its owner arrived to also use the enclosure. Mrs Craig apprehended that her dogs may not mix well with this dog, such that she decided to leave the enclosure, and take her dogs for a walk elsewhere in the picnic area. [7] Later, as Mrs Craig was walking back towards her vehicle and past the enclosure, her dogs became excitable by the presence of the other dog, inside the enclosure. Each of them strained at their leads, until Mrs Craig, who is only slightly built and who suffers from a medical condition, lost her grip on the three leads. In the process, each of the dogs escaped from her control. [8] Mrs Craig was able to quickly regain control of her other two dogs. Yet Panzer continued to run excitedly towards the off-leash dog enclosure and the other dog, who was also barking excitedly at Panzer through the fence. For a short period the two dogs ran up and down either side of the perimeter fence barking at one another, at least until the owner of the dog inside the enclosure was able to restrain his animal and pull it away from the fence. Panzer however remained in an excitable state, and henceforth directed that exuberance elsewhere. [9] Nearby to these events were two females, Ms Lyn Beauchamp and Ms Karen McDonald, who happened to be in the Boorabbin Picnic Area at the time, on their morning walk. They became the target for Panzer’s excitability. Ms Beauchamp had sufficient presence of mind to remain silent and motionless when confronted by Panzer. In contrast, Ms McDonald, - no doubt frightened by the sheer size of Panzer - did not have similar presence of mind. Ms McDonald commenced to shriek, and move about. This only served to make Panzer even more excitable. Panzer jumped up at Ms McDonald, and nipped at her, all before Mrs Craig was able to once more regain control. [10] Photographs put into evidence before QCAT reveal Ms McDonald to have sustained some bruising and some slight puncture marks in the vicinity of her right hip and torso, in consequence of her encounter with Panzer. Oral testimony before the Tribunal from each of Ms Beauchamp and Ms McDonald confirms that Panzer did nip at Ms McDonald, this despite Mr and Mrs Craig expressing doubt about that. Those initial doubts were perhaps justifiable, given that the quality of the only photographs of Ms McDonald’s injuries that were available to Mr and Mrs Craig before the QCAT proceedings before me commenced were very poor. However far better quality photographs of the injuries were produced during the hearing, and these do show puncture marks. The photographic evidence, in particular, compels me to conclude that some minor harm was caused to Ms McDonald. I have no doubt that this was playful behaviour by Panzer more than actual aggression, however playfulness by a behemoth still has consequences. [11] A formal complaint was made by Ms McDonald to the Brisbane City Council on 24 September 2015, thus requiring that the Council conduct a formal investigation. -- 3 of 7 -- 4 [12] On 1 October 2015 Mr Craig was issued with a Proposed Regulated Dog Regulation Notice, advising of Council’s intention to declare Panzer to be a Dangerous Dog. Mr and Mrs Craig made various submissions to the Council as to why the proposed dangerous dog declaration ought not be made. On 20 October 2015, a more senior officer within Council declared Panzer to be a Dangerous Dog (‘original decision’). On 4 November 2015 an internal Application to Review that decision was made by Mr Craig, specifying various grounds as to why Panzer should not be declared to be dangerous. On 26 November 2015 Mr Ashley Booth, the Brisbane City Safety Manager conducted the internal review of the original decision that has been previously referred to at [4] in these Reasons for Decision. Mr Booth was satisfied that the factual circumstances of the incident satisfied the requirements of s 89(2) of the Animal Management Act, such that the original decision to declare Panzer a dangerous dog was upheld by him. It is this determination that has lead to this Application to Review the decision externally before QCAT. Relevant Law [13] The Animal Management Act binds all persons and applies throughout the state of Queensland: s 5. The purposes2 of the Act include for the provision of a scheme for the effective management of what the Act refers to as ‘regulated dogs’, as well as to promote the responsible ownership of cats, and dogs. The statutory regime for regulated dogs is established by Chapter 4 of the Act, which expresses the purposes of the regulated dog regime, in s 59. These include, inter alia, “protecting the community from damage or injury, or risk of damage or injury from regulated dogs”;3 and “ensuring that dogs are not a risk to community health or safety”4. These key purposes are expressed to be matters that are primarily achieved by a declaration regime for dogs that are variously: ‘dangerous’; ‘menacing’; or ‘restricted’; then imposing various conditions and rules on the consequential ownership of such dogs; as well as by allowing dogs to be seized or destroyed, in particular circumstances.5 [14] In this case, the Respondent Brisbane City Council had resolved to declare Panzer a ‘dangerous’ dog. A dog may be declared to be dangerous if grounds for that declaration exist under s 89(2), which provides that a dog may only be declared dangerous if: a) the dog has ‘seriously attacked’, or acted in a way that caused fear to, a person or another animal; or b) the dog may, in the opinion of an authorised person having regard to the way the dog has behaved towards a person or another animal, 2 Animal Management Act, s 3. 3 Ibid, s 59(1)(a). 4 Ibid, s 59(1)(b)(i). 5 Ibid, s 59(2). -- 4 of 7 -- 5 seriously attack, or act in a way that causes fear to, the person or animal. [15] Section 89 in the Animal Management Act also contains a definition (in subsection 7), of ‘seriously attack’, for the purposes of sections 89(2)(a) & 89(2)(b), which provides that a dog attack constitutes a ‘serious’ attack if it results in either bodily harm, grievous bodily harm; or death. The dictionary contained in Schedule 2 of the Animal Management Act requires that each of ‘bodily harm’ and ‘grievous bodily harm’ be given the same meaning attributed to those terms by section 1 of the Queensland Criminal Code. ‘Bodily harm’ is defined in the Criminal Code to mean “any bodily injury that interferes with health or comfort”. [16] In circumstances where it is proposed to make a regulated dog declaration, notice must first be given to the owner: s 90; and the owner may then make written representations as to why that proposed declaration ought not be made. The local government must then consider any written representations that are made by the owner before a regulated dog declaration is in fact made: s 94. Needless to say, all of these antecedent things have happened in this case. [17] If a declaration is made, and a dog is thereby declared to be dangerous, mandatory (and quite onerous) conditions apply to that dog’s owner for the remainder of the life of their dog. Under s.70 the dog must be de-sexed. Pursuant to Schedule One of the Animal Management Act the dog must also:  be implanted, with a prescribed permanent implantation device (PPID);  wear a prescribed tag;  be muzzled, and under effective human control at all times when in a public place;  be accommodated in a specified enclosure;  not usually be kept at a place, other than the place specified in the dog’s registration notice;  be kept at a place that is prominently sign-posted with a warning ‘BEWARE – DANGEROUS DOG’ and any changes of address for the declared dog must be notified to the local government authorities within seven days This QCAT Application for Review [18] Hearings before QCAT are conducted de novo and all of the evidence available to the original decision-maker, as well as any new evidence not previously available to the original decision-maker is to be considered by QCAT in order for the Tribunal to make what the QCAT Act terms to be the -- 5 of 7 -- 6 ‘correct and preferable decision’,6 in accordance with the requirements of the Animal Management Act. Available evidence [19] In addition to the material available to the original decision maker, the Tribunal has had the added benefit of oral testimony from each of Ms Beauchamp, who observed Panzer nip at Ms McDonald, and the testimony of Ms McDonald herself, who says that she was nipped by Panzer; and that Panzer acted in a way that caused her actual fear. There is also a medical certificate from a Doctor Sayedeh Salehi of the Holland Park General Practice dated 24 September 2015 as well as the aforementioned colour photographs of Ms McDonald’s injuries. [20] In the medical certificate, Dr Salehi records: This is to certify that on 24/09/2015 I examined the above named person. She was bitten by dog this morning. On examination she had 4 bite lesion sites, which one [sic] is completely inflamed [sic] and there is bruising there. Tetanus injection and anti biotic therapy started, she needs to know about the dog’s vaccination condition due to receive Rabies injection as well. She also has a severe back pain folloowing [sic] by the trauma this morning [21] Although Ms McDonald’s injuries do appear to be quite minor – such that I paused to consider whether these in fact amounted to bodily harm as defined - ultimately, I come to the conclusion that these injuries did amount to bodily harm. To amount to bodily harm an injury need do no more than interfere with health, ‘or comfort’ – clearly a low threshold. Applicant’s Evidence [22] Mr and Mrs Craig have not seriously challenged the fact that Panzer leapt up onto Ms McDonald whilst off leash and out of Mrs Craig’s immediate control. However, they submit that any loss of control was accidental, in the sense that Mrs Craig had stumbled, thus causing for her to drop her three dogs’ leashes, whilst the dogs were straining at them. In addition, Mr and Mrs Craig submit: a) Panzer’s actions were, in a sense at least, ‘provoked’ by Ms McDonald, whose reactions to the presence of Panzer should be contrasted to the more prescient reactions of Ms Beauchamp, who was not injured; b) The medical evidence of bodily harm is equivocal; c) Despite the BCC having stated that Panzer had been the subject of a prior complaint, this is not the case; 6 QCAT Act, s 20(1); see also Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589. -- 6 of 7 -- 7 d) When conducting a ‘Dog Attack (Human) Risk Assessment’ during the investigation of Ms McDonald’s complaint, council officers had been over-zealous in ascribing a score of 56 to Panzer, thus placing Panzer in the ‘high risk’ category. [23] That Mrs Craig accidentally lost control of Panzer’s leash, whilst entirely understandable at one level, is not any especially relevant consideration for purposes of s 89(2) of the Animal Management Act, which requires no more than a factual inquiry as to whether events that trigger the provision have occurred. Equally, that Ms McDonald panicked and acted in a manner that made it all the more likely to draw Panzer’s attention towards her is not now a factor that derogates from the effect of the provision, which contains no exculpatory provisos. The provision is undoubtedly a harsh one for the companion animals of Queensland. That however is a matter for the legislature. [24] I agree with the Applicants that, at least up until the QCAT hearing itself, the medical evidence of bodily harm was equivocal. However, any doubt as to whether Ms McDonald’s injuries meet the threshold of bodily harm were removed by the end of the hearing, particularly once the original poor quality black and white photographs of the injuries had been supplemented by the better quality colour pictures, that do reveal actual puncture wounds on Ms McDonald’s hip. [25] Although it is a factor that ultimately has no bearing on the outcome, I also agree with the Applicants that the Respondent had mistakenly attributed a previous incident to Panzer. It would be well if the relevant Council Officers take heed of that, and apply more precision during their record making in the future. I further agree that Council officers have been over- zealous in scoring Panzer at 56 on their internal Risk Assessment Tool. When undertaking that same exercise the absolute highest score that I would have reasonably attributed to Panzer is only 50, although that score would still place Panzer in a realm where consideration needs be given to the making of a dangerous dog declaration. At the end of it, the Applicant’s complaint about excessive zeal in the use of the matrix tool is probably only academic. Importantly, the use of the decision making matrix is not any substitute for the requirements specified in s 89(2). [26] I find, in accordance with s 89(2)(a) of the Animal Management Act, that Panzer had ‘seriously attacked’ (as defined) a person in a manner that caused fear to that person, and that it is appropriate having regard to the specific objects and purposes of the Animal Management Act that Panzer be declared to be dangerous. [27] The Application for Review of a Decision is dismissed. -- 7 of 7 --