Brake v Gold Coast City Council [2015] QCAT 52

CITATION: Brake v Gold Coast City Council [2015] QCAT 52 PARTIES: Teresa Brake (Applicant/Appellant) v Gold Coast City Council (Respondent) APPLICATION NUMBER: GAR351-14 MATTER TYPE: General administrative review matters HEARING DATE: 5 February 2015 HEARD AT: Brisbane DECISION OF: Member Favell DELIVERED ON: 16 February 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. The declaration that Daisy is a menacing dog is set aside. CATCHWORDS: General administrative review - review of menacing dog declaration Animal Management (Cats and Dogs) Act 2008 (Qld) ss 89, 94, 98, 183,186 and 188 APPEARANCES and REPRESENTATION (if any): APPLICANT: Applicant represented by Paul Brake RESPONDENT: Respondent represented by Jai Smith REASONS FOR DECISION [1] Daisy, a de-sexed female Lakeland terrier dog was declared by the respondent to be a “menacing dog” after a complaint was made that on 3 May 2014 Daisy did attack and injure another animal namely a dog. [2] The applicant applied for an internal review of that decision and by a notice of 1 October 2014 the original decision was confirmed. The decision notice was received by the applicant on 2 October 2014. She -- 1 of 6 -- 2 then made an application to the Tribunal on 31 October 2014 seeking a review of the decision to declare Daisy to be a regulated (menacing) dog. [3] Chapter 4 of the Animal Management (Cats and Dogs) Act 2008 (Qld) provides a regime for regulated dog management and includes a process by which dogs may be declared. Section 89 of the Act allows a local government by complying with the requirements of Part 4 of Chapter 4 declare a particular dog to be a declared menacing dog (a menacing dog declaration). [4] Section 89(3) allows a menacing dog declaration to be made only if the dog has attacked or acted in a way that caused fear to a person or other animal; or (b) may, in the opinion of an authorised person having regard to the way the dog has behaved towards a person or another animal, attack, or act in a way that causes fear to, the person or animal. [5] Section 94 of the Act requires the local government to consider any written representation and evidence accompanying them within a period stated in the proposed declaration notice. That has been done. Section 95 provides for the notice and the taking effect of the declaration. [6] Section 98 requires a relevant person (the owner of or any responsible person for a declared menacing dog) to ensure that permit conditions imposed under Schedule 1, Section 2, 3(1)(b) and (2), 4-6 and 8 in relation to the dog is complied with for the dog. [7] Chapter 8 of the Act provides for reviews. Every review of an original decision must in the first instance be by way of an application for internal review. That has occurred. That review was carried out pursuant to section 183 and 186 of the Act. [8] Section 188 allows a person who is given or is entitled to be given a review notice for a decision of an internal review. [9] An application to QCAT for a review of the decision is an application for the review of a reviewable decision. The application must be made by filing it in the registry within 28 days after the relevant day. The relevant day is the day the applicant is notified of the decision. The application filed in Part B states that the decision was received on 2 October 2014. The application to review the decision was stamped as being filed and received at the Tribunal on 31 October 2014. If that is correct that means that the application was filed one day out of time. Neither party to the application raised any issue concerning that filing. Section 61 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) allows the Tribunal by order to extend a time limit fixed for the start of a proceeding. Because no issue was taken with the late filing and because the matter was heard and in my view there is no prejudice or detriment suffered, it is appropriate to, if need be, extend the time for filing the application by one day. [10] Section 19 of the QCAT Act requires the Tribunal in exercising its review jurisdiction to decide the review in accordance with the QCAT Act and the enabling act under which the reviewable decision being reviewed was -- 2 of 6 -- 3 made and the Tribunal may perform the functions conferred on the Tribunal by the QCAT Act or the enabling act. [11] The Tribunal has all the functions of the decision-maker for the reviewable decision being reviewed. The purpose of the review is to produce the correct and preferable decision. The Tribunal must hear and decide a review by way of a fresh hearing on the merits.1 [12] In a proceeding for a review the Tribunal may confirm or amend the decision or set aside the decision and substitute its own decision or set aside and return the matter for reconsideration to the decision-maker for the directions the Tribunal considers appropriate.2 [13] This matter was initially to be determined as a hybrid hearing however during the course of the hearing I was informed by the parties that there was little point in mediating as the council was not prepared to alter its decision. [14] That being so the matter is to be determined by the Tribunal after hearing. [15] The applicant called three witnesses, Teresa Brake, Michael Clancy and Paul Brake. Paul Brake and Michael Clancy each swore an affidavit which became Exhibits 1 and 4. Teresa Brake swore two affidavits Exhibits 2 and 3. None of the witnesses for the application were cross examined by the representatives of the Council. I accept the evidence given on behalf of applicant. [16] The Council called no witnesses and sought to rely on a bundle of documents filed in the Tribunal entitled ‘Statement of Evidence’. None of the statements provided by the Council were sworn and despite the direction given on 18 November 2014 none of those who gave statements to the Council were called to be cross examined or to swear as to the content of the various statements. [17] The bundle of documents provided by the Council was made up of the following: a document action sheet, application for registration, animal complaint reports, proposed regulated dog declaration notice dated 23 May 2014, Council’s report regarding dog attack from 3 March 2014, statement by Jodie Bell (complainant) regarding dog attack, statement from Teresa and Paul Brake and Michael Clancy, the regulated dog declaration information notice dated 2 July 2014, a statement by Ms Debbie Williamson and the review letter dated 1 October 2014 in response to the application for general review. [18] The local government may by complying with the requirements of Part 4 declare a particular dog to be a declared menacing dog.3 [19] A regulated dog includes a declared menacing dog4 and a declared menacing dog is “a menacing dog declared under section 94 to be a menacing dog or a dog that is the subject of a declaration however called 1 QCAT Act s 20. 2 Ibid s 24. 3 Animal Management (cats and dogs) Act 2008 s 89. 4 Ibid s 60. -- 3 of 6 -- 4 if the declaration was made under a corresponding law and is the same as or similar to a menacing dog declaration.5 [20] The statement form lodged with the Council by Jodie Bell, the complainant, is as follows: “On Saturday 3/5/14 I was hosting an afternoon tea. My guests accidently let my dog escape from the yard. “Debbie” was passing by in her car and picked up our dog and rang me. I left to meet her across the road and noticed the dog at 7 Aroona Avenue was running around the cul-de-sac and its minder was trying to retrieve her. I walked across the road and took my dog out of Debbie’s arms and into mine. I was thanking her for being kind enough to stop and in that time the dog from No. 7 had noticed my dog and raced across the road to attack. I had no choice but to let my dog go as I was fearful of being caught in the crossfire. It took several attempts and the intervention of the occupier at 135 Rio Vista and the man next door to get the dogs off each other. This is not the first time that the dog at No. 7 has attacked my dog. I have reported it on two other occasions. My dog required veterinary intervention and antibiotics and sedatives at a cost of $352.” [21] It seems that “Debbie” was Debbie Williamson formerly of 74 Rio Vista Boulevard, Broad Beach Waters. In an unsworn statement Ms Williamson said: “On 3 May 2014 I was driving south along Rio Vista Boulevard near Aroona Avenue. I saw a little dog on his own trying to cross Rio Vista Boulevard. I stopped and watched him across the road and he walked up the driveway of a house on the opposite side of Rio Vista Boulevard. I did a U-turn and spoke to the man in his garden behind the wooden picket fence saying how relieved I was that this little dog had made it safely across the road. He replied that it wasn’t his dog. The little dog was friendly (not sure breed, about a shitsu size) so we checked his name (Chubbie) and contact details on his tag and rang the owner. The lady owner of Chubbie came across the road thanking us and had only just got Chubbie into her arms when we heard a dog fiercely barking and came racing out the street where she had come from (I think it is Aroona Avenue). The dog headed straight for the lady holding Chubbie and she said to me words like “Oh no that terrible dog is always getting out and attacking other dogs”. She seemed so scared that I nearly said to her to get into my car quickly however we had no time to do this as the dog was already jumping up at Chubbie who was still in her arms. We could not get away from this fierce aggressive dog and could not get up the driveway and in behind the picket fence where we were still standing in Rio Vista Boulevard. This vicious dog kept jumping up at Chubbie and sunk his teeth into its stomach and Chubbie was screaming and the lady was shouting “do something, please do something!”. The angry dog was just snarling and had his teeth locked on Chubbie’s stomach drawing blood. Chubbie jumped out of the lady’s arms and started to protect himself. The dogs were both fighting and I raced in to get the hose from the man’s garden to try to stop them as we all thought the dogs wouldn’t stop. With all the screaming going on and the dogs fighting another man came racing across the road from the same street as the lady had come from and started trying to pull his offending dog off Chubbie to no avail. Finally between him pulling his pulling his aggressive dog and the 5 Ibid s 62. -- 4 of 6 -- 5 hose spraying them both they parted and both dogs were bleeding and there was blood all over the driveway of the house in Rio Vista Boulevard”. [22] I note the different versions of accounts by Ms Williamson and Ms Bell. I also note the language used in the statement by Ms Williamson describing “Daisy” as a “vicious dog”, “angry dog”, “offending dog”, “aggressive dog”, “crazy dog”, “fierce dog” and the description of the “attack” as being “from this crazy dog who was so vicious”. I also note her description of the incident as “traumatic experience”. I note that she describes herself as being terrified. [23] “Daisy” is described as an 8 year old Lakeland terrier weighing about 7kg and about 45cm tall. She had completed an eight week course of obedience training at the Gold Coast Dog Obedience Training Club and was de-sexed, micro chipped and registered with the Gold Coast City Council. “Chubbie” is a Maltese shitsu male dog weighting approximately 10kg. Both dogs have clashed on a number of occasions. [24] The first incident was on 20 December 2012 when Daisy escaped from her house when she slipped through the front gate that was opened. She ran up the road to the house where Chubbie lived. Both Daisy and Chubbie were barking and Chubbie put his head under the gap between the ground and the bottom of the front gate according to Mr Brake.6 Both dogs were bitten. [25] The second incident was on 23 August 2013 when again Daisy escaped from her house and ran up the road to Chubbie’s house. Both dogs were barking at each other with the gate separating them. Chubbie put his head under the gap below the bottom of the front gate and then someone opened the front gate and Chubbie rushed out and a dog fight took place. The dog fight was broken up. [26] The third incident occurred on 3 May 2014. Michael Clancy was staying with Mr and Mrs Brake and when he returned to the property from his part- time job about 2pm he put down a bag he was carrying, unlocked the front gate and opened it slightly to check on Daisy. Not seeing her he then picked up his bag to come inside and as he did so Daisy suddenly appeared and went through the space between his legs and gate and ran out into the street and westwards along Aroona Avenue. Mr Clancy chased after her. [27] He is 69 years of age and suffers from arthritis in his legs. He is a diabetic and has restricted mobility. [28] As Mr Clancy got near the intersection of Aroona Avenue and Rio Vista Boulevard he saw Daisy run across Aroona Avenue to about 6 Aroona Avenue. He crossed Aroona Avenue to pick up Daisy but Daisy ran back to the gate of 7 Aroona Avenue and he followed. Instead of coming inside the property Daisy then ran back up Aroona Avenue towards Rio Vista Boulevard and again Mr Clancy followed. [29] He noticed a woman carrying a white dog across Rio Vista Boulevard and saw the woman holding the dog talking to a man and a woman who was 6 Exhibit 1. -- 5 of 6 -- 6 standing in the driveway of 135 Rio Vista Boulevard. Daisy continued up Aroona Avenue and crossed over Rio Vista Boulevard to where the other dog and three adults were. By the time he caught up with Daisy the two dogs were on the ground fighting. He picked up Daisy and held her by her collar and put his other arm underneath her to lift her from the ground and held her at his chest height. He said that the dogs were not immediately separated as the other dog had bitten into Daisy’s right hind leg and was hanging by her mouth off Daisy. He does not recall whether Daisy had bitten the other dog but he recalls with certainty that she was not biting the other dog when he picked her up, rather the other dog was biting Daisy’s leg. [30] He says the two dogs were separated and Daisy was bleeding and obviously injured. He said the other dog did not appear to him to be injured although he did not look at her in detail. He took Daisy back to the house and wiped away much of the blood on her coat. He took photographs of her injuries and wrote down a record. [31] I accept the sworn evidence of Mr Clancy. [32] I find that there was a dog fight on 3 May 2014 between Daisy and Chubbie during which both dogs suffered injury by bite marks. I do not know which dog bit first but it is clear that Daisy sought out Chubbie. There is no evidence that Daisy has attacked any person. There is evidence that Chubbie was aggressive towards Daisy on other occasions. [33] Like the Council, I do not find the attack was serious. [34] Daisy lived in an area where there were five other dogs. Those dogs lived closer to Daisy’s home than Chubbie. There is no evidence that she has clashed with those other dogs and there is evidence that she has peacefully co-existed with them. [35] Chubbie has now moved out of the area. [36] The applicant has now taken further precautions to prevent Daisy from leaving her property without a lead. She has erected a child proof enclosure which complies with the Council requirements of a menacing dog declaration. [37] The applicant and her husband claim to be responsible dog owners. I accept that to be correct. [38] The power to make a menacing dog declaration is discretionary. There is no sufficient evidence that Daisy acted in a way that caused fear to a person. Apart from the clash between Daisy and Chubbie there is no evidence which suggests that Daisy may attack or act in a way that causes fear to a person or animal. Where Chubbie has moved, Daisy is kept in an appropriate enclosure and there is no evidence that Daisy may be a menacing dog in the future, I am not of the opinion that Daisy may attack or act in a way that causes fear to a person or animal. [39] The declaration that Daisy is a menacing dog is set aside. -- 6 of 6 --