Brache v Douglas Shire Council [2014] QCATA 220

CITATION: Brache v Douglas Shire Council [2014] QCATA 220 PARTIES: Zane Brache (Applicant/Appellant) v Douglas Shire Council (Respondent) APPLICATION NUMBER: APL111-14 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Oliver Member Paratz DELIVERED ON: 14 August 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal refused. CATCHWORDS: ANIMALS – FINDINGS OF FACT – where no substantial injustice – where applicant seeks to disturb findings of fact – where conclusions of fact open on the evidence Queensland Civil and Administrative Tribunal Act 2009 s 146 Animal Management (Cats and Dogs) Act 2008 ss 59, 89, 125 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). REASONS FOR DECISION [1] The applicant is the owner of three American Bulldogs, Boston, (a male aged 4 years), Lola (a female aged 6 years) and Rascal (a male aged 6 years). On 1 September 2013 Mr Anthony Bartels sustained bodily harm as a result of being attacked by Boston and Lola. -- 1 of 6 -- 2 [2] Mr Bartels reported the attack to the Police and it was brought to the attention of the Douglas Shire Council. [3] In the proper discharge of its function to protect the community from savage dog attacks, the Council seized and impounded the dogs. It made initial decisions in relation to the dogs, and then made a decision on 22 November 2013 (after an internal review of its original decision) upholding a dangerous dog declaration under the Animal Management (Cats and Dogs) Act 2008 (Qld) in respect of Rascal and upholding a destruction order in respect of Boston and Lola. [4] Mr Brache filed an application to review the Council’s decision. On 29 January 2014 the Tribunal conducted an oral hearing and set aside the destruction orders, but confirmed the decision to declare all three dogs as dangerous dogs. [5] Mr Brache filed an application for leave to appeal or appeal the decision of the Tribunal on 25 February 2014. The parties have filed submissions in the appeal. [6] Mr Brache is self represented. The grounds of appeal are, somewhat obtuse. He says primarily that key witnesses, Anthony Bartels and Michael Keenan, should have been found, by the Tribunal, to have been lying and misleading in their evidence under oath. He also says that Graham Boyd, an employee of the respondent, failed to take into consideration a written statement by Danielle Hardwicke and is in breach of the Act in making the dangerous dog declaration. He also says that Donna Graham has knowingly submitted evidence that is misleading and false. [7] Mr Brache is seeking that the Dangerous Dog Declarations for Boston, Lola and Rascal, that were confirmed by the learned Member, be set aside. The Council has not appealed against the decision of the learned Member to set aside the Destruction Orders for Boston and Lola. [8] To give the grounds of appeal any context, they must be read together with his outline of submissions in the appeal they can be summarised as follows: 1. The Council misled the Tribunal because all documents in respect of the review application were served on Danielle Hardwicke who is not the registered owner of the dogs. 2. The Council failed to return the dogs in a reasonable time after the destruction order was lifted. 3. The Tribunal should hold the Council, its representatives and its witnesses, accountable with the full force of the law under the act for knowingly misleading the Tribunal. 6. Had the Council accepted that the dogs were defending the applicant, and not acted in a biased way towards the dogs, the outcome would have been different. -- 2 of 6 -- 3 7. Mr Bartels and Mr Keenan misled the Council and the Tribunal in their statements and in their affidavits. 8. The Council should pay substantial compensation to the applicant and his family for the disregard of the law and trying to hold his dogs and persist with their blatant witch-hunt on his pets and family. [9] It is immediately evident that some of the ‘grounds’ are not grounds of appeal identifying error in the decision making process of the Tribunal. Some are claims for further relief particularly with respect to the claim for compensation. What is evident though, is that the appeal is one against findings of fact made by the Tribunal at first instance. [10] Therefore this appeal falls within the category of an appeal on mixed law and fact. As such, s 146(2)(iii) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) says that such an appeal can only proceed with the leave, or permission, of the Appeal Tribunal. [11] Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error? [12] Management of animals, in particular dogs, is provided for in the Animal Management (Cats and Dogs) Act 2008 (Qld). Section 59 of the Act provides that the purposes of the particular Chapter with respect to dogs is to: (a) protect the community from damage or injury, or risk of damage or injury, from particular types of dogs called ‘regulated dogs’; and (b) ensure the dogs are— (i) not a risk to community health or safety; and (ii) controlled and kept in a way consistent with community expectations and the rights of individuals. [13] Where there are incidents which involve dogs resulting in a threat or injury to persons, the local government can make a declaration with respect to the animal and that is contained in s 89. It provides: Power to make declaration (1) Any local government may, by complying with the requirements of this part— (a) declare a particular dog to be a declared dangerous dog (a dangerous dog declaration); or … (2) A dangerous dog declaration may be made for a dog only if the dog— (a) has seriously attacked, or acted in a way that caused fear to, a person or another animal; or -- 3 of 6 -- 4 (b) may, in the opinion of an authorised person having regard to the way the dog has behaved towards a person or another animal, seriously attack, or act in a way that causes fear to, the person or animal. … (5) The declaration may be made even if the dog is not in the local government’s area. (6) A declaration under this section is a regulated dog declaration. (7) In this section— seriously attack means to attack in a way causing bodily harm, grievous bodily harm or death. [14] Section 125 of the Act provides that an authorised person may seize a dog if :- 125(1)(a) the person reasonably believes the dog – (i) has attacked, threatened to attack or acted in a way that causes fear to, a person or another animal; or (ii) is, or may be, a risk to community health or safety [15] Section 127(4) provides that an authorised person may make a destruction order stating that the person proposes to destroy the dog 14 days after the order is served. There is provision for an internal review of a destruction order. [16] Because of the incident involving Mr Bartels, the Council made a decision about the dogs that is, a dangerous dog declaration in respect of Rascal and a destruction order in respect of Boston and Lola. [17] During the hearing of the application for review before the Tribunal Member, there were contested issues of fact which are raised in the applicants submissions. Those contested issues involve the evidence of Mr Bartels and an eye witness Mr Keene who, the applicant contends misled the Tribunal. The learned Member made the following findings of fact: a) Mr Bartels and Mr Keene (and a female backpacker) drove near the driveway of the applicant’s property on the day of the attack. b) There was a history of animosity between Mr Bartels and Mr Brache. c) Mr Bartels and Mr Brache became involved in a physical altercation. d) As a result of the altercation, Boston and Lola attacked Mr Bartels causing bodily injury reflected in photographs tendered in the review proceeding. e) Mr Keene took a short video on a mobile phone which shows the injuries and the dogs attacking Mr Bartels. f) The injuries caused to Mr Bartels was as a result of the dog attack and not falling down and striking a star picket. -- 4 of 6 -- 5 g) The injuries to Mr Bartels back left shoulder were inflicted by Boston. h) The injuries to Mr Bartels right ear and throat were inflicted by Lola. i) Rascal did not inflict any injury. [18] There is a transcript of the evidence given at the hearing where the versions of Mr Keene and Mr Bartels are challenged. There is evidence in statement form. The learned Member considered this evidence in coming to his conclusions on the facts. [19] Not only were the conclusions of fact reached by the learned Member open on the evidence before him, on perusing the material, those conclusions seem to be the only logical conclusions that could be made. It is well established that findings of fact will not usually be disturbed on appeal if the facts inferred or found by the Tribunal are capable of supporting its conclusions reached.1 [20] We will deal now with the other grounds of appeal. [21] The question of whether the dogs were returned in a reasonable time after the destruction order was made, is not relevant to the matters that have to be considered by the Appeal Tribunal by reference to the matters before the learned Member and his decision and reasons. [22] The next ground is as to consideration of the evidence of Ms Hardwicke by the Council. Even if Mr Boyd failed to take into account the written statements by Danielle Hardwicke in making the decision about the dogs, her statement is something the learned Member had regard to in the review application, which was conducted by way of a fresh hearing on the merits.2 [23] As to the ground whether the Council representatives misled the Tribunal, once again the Tribunal made findings of fact to support its conclusions, and those facts will not easily be disturbed on appeal. [24] It is contended that the Council acted in a biased way towards the applicant in making the dangerous dog declarations and destruction orders, and that had the Council not acted in this way then there would have been a different outcome before the Tribunal. Once again, we can only reiterate that the review application was conducted by way of a fresh hearing on the merits. This meant that the learned Member considered all of the evidence, including these submissions by the applicant, and made findings of fact as to which, in the circumstances, there is no basis to interfere. [25] The applicant’s claims for compensation are also not relevant to this appeal. An appeal is not an opportunity to make further claims or seek compensation. The purpose of the appeal is to identify error on the part of 1 Fox v Percy (2003) 214 CLR 118 at 125 – 6. 2 QCAT Act s 20. -- 5 of 6 -- 6 the Tribunal at first instance and here, Mr Bartels has been unable to do so. [26] We find that there has been no substantial injustice nor any error of law identified or any other basis upon which leave to appeal ought be granted. [27] Therefore, leave to appeal is refused. -- 6 of 6 --