Bradshaw v Moreton Bay Regional Council [2017] QCATA 139

CITATION: Bradshaw v Moreton Bay Regional Council [2017] QCATA 139 PARTIES: Tammy Bradshaw (Appellant) v Moreton Bay Regional Council (Respondent) APPLICATION NUMBER: APL275-17 MATTER TYPE: Appeals HEARING DATE: 11 December 2017 HEARD AT: Brisbane DECISION OF: A/Senior Member Browne Member Howe DELIVERED ON: 20 December 2017 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to amend the application for leave to appeal or appeal to include a further ground 3 of appeal is granted. 2. The appeal on ground 3 is allowed. 3. The application to adduce fresh evidence is refused. 4. The decision made by the Tribunal on 14 August 2017 is set aside, and the matter is returned to a differently constituted Tribunal for reconsideration with the hearing of additional evidence as allowed by the newly constituted Tribunal. CATCHWORDS: APPEAL AND NEW TRIAL – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where leave granted to amend the application for leave to appeal or appeal – whether error of law in original tribunal decision – where error would substantially affect the original tribunal’s decision Animal Management (Cats and Dogs) Act 2008 (Qld), s 3, s 4, s 59, s 60, s 61, s 89, s 97, s 125, s 127 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142, s 143, s 146, s 147 -- 1 of 11 -- 2 Bradshaw v Moreton Bay Regional Council [2017] QCAT 281 Ericson v Queensland Building Services Authority [2013] QCA 391 Pickering v McArthur [2005] QCA 294 Thomas v Ipswich City Council [2015] QCATA 97 REPRESENTATIVES: APPLICANT: Mr McMillan, B of legal counsel instructed by Anderson Fredericks Turner RESPONDENT: Ms Whitehouse, D of legal counsel for the Moreton Bay Regional Council REASONS FOR DECISION Ms Bradshaw is the owner of ‘Hank’, a large male dog described as being a Neapolitan Mastiff. On 21 October 2016, Ms Bradshaw was outside the home of a neighbour and Hank was with her. A child approached. Ms Bradshaw held Hank by the collar. An incident occurred after the child started to pat Hank. The child was injured and taken to hospital for treatment of her injury that required plastic surgery. Although no one knows how Hank caused the injury to the child, it is non-contentious that Hank caused the injury. On 9 December 2017, the Moreton Bay Regional Council (‘Council’) declared Hank a dangerous dog under the Animal Management (Cats and Dogs) Act 2008 (Qld) (‘AM Act’) based on the incident that occurred on 21 October 2016. Hank, having been a declared a dangerous dog, was a ‘regulated dog’ for the purposes of s 60 of the AM Act. Ms Bradshaw, as the owner and keeper of a ‘regulated dog’, was required to comply with certain conditions as prescribed under the AM Act in respect of signage, keeping the animal in an enclosure, and having Hank de-sexed.1 The decision to declare Hank a dangerous dog was later confirmed by the Council following Ms Bradshaw’s application for an internal review with the Council. On 23 May 2017, the Council sought and obtained a warrant to enter Ms Bradshaw’s home. Hank was seized and the Council made a new decision that Hank be destroyed. 1 By virtue of s 97 of the AM Act. -- 2 of 11 -- 3 Ms Bradshaw applied to the Tribunal for a review of the Council’s decision to make the destruction order. On 14 August 2017, the Tribunal confirmed the destruction order made by the Council and published reasons for its decision. Ms Bradshaw filed an application for leave to appeal or appeal that decision. The appeal contained two grounds of appeal that identified errors of mixed fact and law for which leave is required. Ms Bradshaw in her written submissions also sought leave to amend the grounds of appeal by adding an additional ground 3 that identified an error of law for which leave to appeal is not required. Ms Bradshaw also filed an application to rely on fresh evidence. On 11 December 2017, the Appeal Tribunal heard the appeal. Ms Bradshaw was granted leave to amend the application for leave to appeal or appeal to include a further ground 3 of appeal. The appeal was allowed on ground 3 and the application to rely on fresh evidence was refused. In allowing the appeal, the Appeal Tribunal ordered that the decision of the Tribunal made on 14 August 2017 be set aside and the matter returned to a differently constituted Tribunal for reconsideration with the hearing of additional evidence as allowed by the newly constituted Tribunal. Below are our reasons for the decision made on 11 December 2017. Grounds of Appeal Ms Bradshaw identifies two grounds of appeal in the application for leave to appeal or appeal that identify errors of mixed fact and law for which leave is required.2 It is settled law that leave to appeal will usually only be granted if there is a ‘reasonable argument’ that there is an error in the decision at first instance and an appeal is necessary to correct a ‘substantial injustice’ to the applicant caused by the error.3 In ground one, Ms Bradshaw contends that the decision to confirm the original decision of the Council to make a destruction order was unreasonable and not supported by the evidence before the tribunal. In ground two, Ms Bradshaw contends that the Tribunal’s decision to confirm the destruction order was not the correct and preferable decision having regard to: a) The lack of evidence that “Hank” attacked the relevant child or any other person, or is likely to attack or cause fear to any person; 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(b). 3 Pickering v McArthur [2005] QCA 294, [3]. -- 3 of 11 -- 4 b) The purpose of the Act to provide for the ‘effective management of regulated dogs’ and to ‘promote the responsible ownership of… dogs’ and the lack of opportunity afforded to the applicant to effectively and responsibly manage the dog “Hank” as a regulated dog; and c) The failure of the respondent to act reasonably and in accordance with the Act. In the further ground 3, Ms Bradshaw contends that the learned Member erred in applying a test by reference to ‘the risk of another serious injury occurring’ when no such test is required by the AM Act and then finding that such a risk was ‘unacceptable’ when the evidence did not support such a finding. Ms Bradshaw, although not specifically addressing each of the individual grounds of appeal, has in her written submissions set out the contentions in support of the appeal. Ms Bradshaw says that the findings of the learned Member are entirely inconsistent with the ultimate decision to confirm the destruction order.4 Ms Bradshaw says that the findings jointly and severally support a conclusion that the correct and preferable decision was to set aside the decision of the Council to make a destruction order.5 Ms Bradshaw refers to the relevant sections of the AM Act and the considerations in exercising the discretion under s 127 that gives the Council and the Tribunal on review the power to destroy a dog. Those considerations, as submitted by Ms Bradshaw, are said to include the nature of any attack; the behavioural aspects of the dog; and the exposure of the community to risk from the dog. Ms Bradshaw says that those considerations apply equally to the ‘effective management and responsible ownership of dogs’ under the AM Act including regulated dogs.6 Ms Bradshaw relies on the decision in Thomas v Ipswich City Council7 and submits that it is clear from Thomas’ case that the destruction order is a last resort and citing Thomas says that it is generally only where the mechanisms in the Act for management fail, or are ineffective, that it is appropriate.8 Ms Bradshaw also raises contentions generally about the evidence before the learned Member and submits that, by the making of the destruction order, the Council did not allow Ms Bradshaw to continue to effectively and responsibly manage Hank as a regulated dog under the Act. Ms Bradshaw 4 Applicant’s submissions on application for leave to appeal or appeal filed on 15 November 2017, [19]. 5 Ibid. 6 Ibid, [23]. 7 [2015] QCATA 97. 8 Ibid, [18]. See Applicant’s submissions on application for leave to appeal or appeal filed on 15 November 2017, [24]. -- 4 of 11 -- 5 contends that the Council acted upon ‘complaints though political channels’ to make the destruction order.9 Ms Bradshaw says that, on the evidence before the learned Member and the finding made, it is apparent that the mechanisms in the Act for management of Hank as a regulated dog had not failed and had been effective. Ms Bradshaw says that clearly the ‘last resort’ (citing Thomas’ case in the context of when such a discretion to destroy a dog should be exercised) had not been reached.10 Ms Bradshaw submits that the conclusions of the learned Member that appear at paragraph [65] of the reasons are difficult to reconcile with the evidence before the Tribunal and the facts as found by the learned Member.11 In summary, Ms Bradshaw says that the evidence does not support the conclusion that there was a risk of Hank causing ‘another serious injury’ if Ms Bradshaw were allowed to continue managing Hank as a regulated dog under the mechanisms of the AM Act.12 Ms Bradshaw says that the learned Member has inferred an additional test for risk that is not required under the AM Act; namely, that such a risk is unacceptable.13 Ms Bradshaw refers, in her written submissions, to s 127 and says that there is no requirement in the AM Act for an assessment of the risk of ‘serious injury occurring’ as a pre-condition to making a destruction order under s 127. Ms Bradshaw says that the learned Member erred by purporting to conclude that such a risk existed and was ‘unacceptable’ as the basis for the exercise of his discretion to confirm the order as the correct and preferable decision.14 Ms Bradshaw contends that the learned Member should have considered the question of whether the mechanisms under the AM Act for managing Hank had failed or been ineffective, thus giving rise to the ‘last resort’ of a destruction order. Ms Bradshaw also contends that, notwithstanding the test adopted by the Tribunal, the evidence before the learned Member did not support the conclusion that the risk existed or was unacceptable in circumstances 9 Applicant’s submissions, [27]. 10 Ibid, [30]. 11 Submissions of Ms Bradshaw dated 15 November 2017, [31]. 12 Ibid. 13 Ibid, [32]. 14 Ibid, [33]. -- 5 of 11 -- 6 where Ms Bradshaw continued to manage Hank as a regulated dog under the mechanisms of the AM Act.15 Ms Bradshaw says the decision below was unreasonable and should be set aside. Ms Bradshaw says the Appeal Tribunal should rehear the matter on the evidence before the Tribunal and the fresh evidence to reach the correct and preferable decision.16 At the oral hearing, the Council did not oppose the Appeal Tribunal granting leave to amend the appeal to include ground 3. The Council has in its written submissions addressed grounds 1 and 2 of the appeal together. In summary, the Council submits that the discretion was properly exercised by the learned Member and it did not result in a decision which was unreasonable or unsupported by the evidence.17 In relation to ground 3, the Council, in oral submissions, says that it was open to the learned Member to consider whether there was a risk of another serious injury occurring. In written submissions, the Council says that, amongst other things, in light of the matters set out in s 59(1)(a) of the AM Act, it is difficult to see how the learned Member could have reached a decision without considering the risk of serious injury occurring.18 The Council submits that it is a question that cannot ‘conceivably be avoided in the determination of a matter such as this’.19 The Council refers to Thomas’ case that was also cited by Ms Bradshaw in addressing the grounds of appeal. The Council effectively submits that Thomas’ case does not suggest and is not authority to support the proposition that the correct question for the learned Member was whether the mechanisms under the AM Act for managing Hank had failed or been ineffective.20 The Council submits that that is not the question but the conclusion to be drawn from Thomas’ case in responding to the question which the Appeal Tribunal said was essential in that case. 21 The Council says that it was open to the learned Member to find that the risk of injury was unacceptable and that the dog constitutes an unacceptable threat to the safety of people by attacking them.22 The Council says that it is accepted by Ms Bradshaw that the Council had the power to make a concurrent destruction order when they declared Hank 15 Ibid, [35]. 16 Ibid, [37]. 17 Respondent’s outline of submissions dated 30 November 2017, [20]. 18 Ibid, [23]. 19 Ibid. 20 Ibid, [26]; See [24] of Ms Bradshaw’s submissions. 21 Ibid, [26]. 22 Ibid, [27]. -- 6 of 11 -- 7 a dangerous dog in the first instance.23 That Council says that leave should not be granted and the appeal should be dismissed. What did the Tribunal find? The learned Member sets out in the reasons the non-contentious facts giving rise to the incident on 21 October 2016, the circumstances surrounding the incident on 21 October 2016, the nature of the injury sustained by the child, and the actions of the Council. The learned Member correctly identified the relevant statutory framework that gives the Council the power to make a destruction order under the AM Act. The learned Member also addressed submissions advanced at the hearing, in particular about the provision in s 127A for concurrent dog declarations and destruction orders, and in relation to the issuing of a dangerous dog declaration and a destruction order arising out of the same circumstances.24 The Tribunal observed that 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 relation to a seized, regulated dog.25 The learned Member considered the issue of whether the seizure of Hank by the Council was made under a warrant or alternatively under s 125. The Tribunal found that Hank was seized ‘under’ the warrant,26 and that the seizure was also authorised by and made under s 125.27 The learned Member ultimately found that the power under s 127(4) to make a destruction order was enlivened.28 The reasons show that the learned Member, having found that the power to make a destruction order under s 127(4) was enlivened, considered relevant matters in the exercise of a discretion as to whether a destruction order should be made. The learned Member correctly observed that it is a ‘serious matter’ to order the destruction of a family pet.29 The learned Member correctly observed that there is no express criteria under the AM Act to guide the exercise of the discretion to make a destruction order and in his reasons had regard to other provisions, including the objects of the Act.30 The learned Member correctly observed that community safety is a key issue in exercising the discretion along with, amongst other things, the nature of the attack, the behavioural aspects of the dog, the exposure of 23 Ibid, [28]. 24 Ibid, [10]. 25 Ibid, [18]. 26 Ibid, [30], [41]. 27 Ibid, [41]. 28 Ibid, [44]. 29 Ibid, [45]. 30 Bradshaw v Moreton Bay Regional Council [2017] QCAT 281, [45], [51]. -- 7 of 11 -- 8 the community to risk of injury including arrangements for keeping of the dog, and the likelihood of persons responsible for the dog taking proper steps to minimise risk to the community.31 The learned Member correctly observed that the AM Act does not contemplate that every dog that attacked and caused injury is to be destroyed.32 The learned Member correctly said that the decision-maker has a discretion whether or not to make a destruction order.33 The reasons show that the learned Member made findings relevant to the exercise of the discretion under s 127 of the AM Act.34 The learned Member found that Hank caused the injury to the child that was, as found, ‘of a serious nature’.35 The learned Member also made findings about Hank’s behaviour generally and found, amongst other things, that Hank has not injured any person before or since the incident, nor has he displayed behaviours in his unusual environment (referring to the facility where he is held) that indicate he would be likely to do so.36 The learned Member also identified the steps taken by Ms Bradshaw to reduce risk since Hank was declared dangerous.37 The learned Member accepted Ms Bradshaw’s evidence given at the hearing and made findings that since being declared dangerous Hank has been housed in a secure enclosure, Ms Bradshaw sourced training for Hank and allows the young children of her partner with whom she lives to play with Hank.38 The learned Member said: 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 incident occurring without warning and seemingly out of character, the risk to the children is a concern. The learned Member made ultimate findings as to whether the discretion to make a destruction order should be exercised. The conclusion or ultimate findings resulting in the decision made is confined to the penultimate paragraph of the Tribunal’s reasons. The learned Member found that Ms Bradshaw loves and cares for Hank and has responsibly taken steps to reduce the risk of Hank causing injury again.39 The learned Member found, however, that risk of another serious injury occurring is unacceptable. The relevant extract from the Tribunal’s reasons is as follows: 31 Ibid, [50]. 32 Ibid, [51]. 33 Ibid. 34 Ibid, [52] - [63]. 35 Ibid, [54]. 36 Ibid, [55]. 37 Ibid, [59]. 38 Ibid, [59] - [63]. 39 Bradshaw v Moreton Bay Regional Council [2017] QCAT 281, [64]. -- 8 of 11 -- 9 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. The learned Member in the final paragraph of the reasons ordered that the destruction order be confirmed and prohibited the publication of the photographs and copies of photographs of the child entered in evidence.40 Error of Law – Ground 3 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 decision-maker. The scope, purpose, and objects of the legislation must be taken into account to interpret the extent and ambit of discretion. 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. 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. The learned Member has correctly identified the statutory framework and the considerations in exercising the discretion under s 127 of the AM Act. The learned Member has also made findings based on the evidence. The learned Member has not, however, in determining the matter at first instance, exercised the broad discretion in s 127(4). The learned Member confined himself to certain matters such as the ‘sheer seriousness of the injury’ and the risk of ‘another serious injury occurring as unacceptable’ and 40 Ibid, [66]. -- 9 of 11 -- 10 therefore failed to properly exercise the discretion in determining whether the destruction order should be made. The learned Member concluded that it was the ‘sheer seriousness of the injury’ caused by Hank in biting the child and the ‘risk of another serious injury occurring’ that was determinative of the matter. There was no ultimate consideration of the findings made on the evidence and the primary purposes of the Act nor the ways those purposes were to be achieved in the learned Member’s conclusion that lead to the decision made. The learned Member’s consideration was limited to the measure of the seriousness of the initial injury combined with the lack of warning before the incident giving rise to the child’s injury and the risk of another serious injury occurring because there were children at Ms Bradshaw’s home. The general discretion under s 127(4) to order that an animal be destroyed is not limited to a consideration of the seriousness of the attack and the risk of another serious injury occurring by the dog giving rise to seizure. As determined in Thomas’s case, the question, and the exercise of discretion that follows, is to be based on 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. As held in Thomas’ case, the discretion exercised will also involve a consideration of, amongst other things, the legislative intent of the AM Act and the purpose of the Act. The limited test effectively of seriousness of the injury giving rise to seizure applied by the learned Member amounted to a misunderstanding of the far more extensive enquiry required in exercise of the discretion under s127(4). That was an error of law and the appeal on ground 3 is allowed. Conclusion We have found that there is an error of law in the learned Member’s decision. The learned Member, in reaching his conclusion, confined himself to certain matters and therefore failed to properly exercise the discretion in determining whether the destruction order should be made. It is not necessary to address the balance of the grounds of appeal in this matter given our observations made in considering grounds 1 and 2 and our findings that there is an error of law in ground 3. Given our findings and that the determination of the question of law is not capable of resolving the matter as a whole in Ms Bradshaw’s favour,41 it is appropriate to proceed under s 146(c) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). The decision made by the Tribunal on 14 August 2017 is set aside and the matter is to be returned to a differently constituted Tribunal for 41 Ericson v Queensland Building Services Authority [2013] QCA 391. -- 10 of 11 -- 11 reconsideration with the hearing of additional evidence as allowed by the newly constituted Tribunal. In reconsidering the matter, the Tribunal must conduct the review of the Council’s decision as a fresh hearing on the merits and must arrive at the correct and preferable decision. Ms Bradshaw has applied for leave to adduce fresh evidence. At the oral hearing, both parties accepted that if the appeal on ground 3 was allowed and the Tribunal’s decision set aside and remitted back to the Tribunal for reconsideration, it will be necessary for both parties to file additional evidence as allowed by the Tribunal in exercising its review function. The application for leave to rely on fresh evidence on appeal is therefore refused. It will be a matter for the newly constituted Tribunal in rehearing the matter as to whether additional evidence is allowed. This can be addressed at the rehearing of the matter. -- 11 of 11 --