Cundy v Townsville City Council [2013] QCAT 579

CITATION: Cundy v Townsville City Council [2013] QCAT 579 PARTIES: Scott Douglas Cundy (Applicant) v Townsville City Council (Respondent) APPLICATION NUMBER: GAR416-12 MATTER TYPE: General administrative review matters HEARING DATE: 18 January 2013 HEARD AT: Townsville DECISION OF: W Pennell, Member DELIVERED ON: 18 January 2013 DELIVERED AT: Townsville ORDERS MADE: 1. That by 4:00pm on 28 January 2013 the Applicant is to erect an enclosure (“the enclosure”) at the premises of 27 Sabadine Street, Aitkenvale (the Applicant’s address”) which compiles with the requirement for keeping a declared dangerous dog as provided for in Schedule C of the Regulated Dog Declaration Information Notice (“Schedule C”). 2. On 29 January 2013 the respondent shall inspect the Applicant’s address to ensure that the Applicant has complied with the requirements of Schedule C. 3. That if the enclosure at the Applicant’s address is compliant with Schedule C, the Silas shall be returned to the custody and control of the Applicant at the Applicant’s address by 5:00pm on 29 January 2013. 4. That if upon inspection of the Applicant’s address on 29 January 2013 the Applicant has not complied with the requirements of Schedule C, the respondent is at liberty to enforce the -- 1 of 7 -- 2 Destruction Order made pursuant to section 127 of the Animal Management (Cats and Dogs) Act 2008. 5. That the Applicant pay costs to the Respondent to the amount of $856.95 being reasonable costs incurred by the Respondent for the management and other incidental costs incurred during the period that the dog Silas has been under the care of the Respondent, and such amount is to be paid to the Respondent by 4:00pm on 18 March 2013. THE TRIBUNAL FURTHER DIRECTS: 1. Whilst the dog Silas is in the custody and control of the Applicant, the Applicant shall at all times abide by the requirements of Schedule C. CATCHWORDS: ADMINISTRATIVE REVIEW – dangerous dog – warrant to seize dog – destruction notice – registration fee Animal Management (cats and Dogs) Act 2008 Queensland Civil and Administrative Tribunal Act 2009 APPEARANCES and REPRESENTATIONS: APPLICANT: Self represented RESPONDENT: Townsville City Council REASONS FOR DECISION [1] This was a hybrid hearing. The Applicant is Scott Douglas Cundy (“the Applicant”) and the Respondent is the Townsville City Council (“the Council”). [2] By and large, the Applicant’s position is that he is the owner of an adult male desexed Bull Arab cross Mastiff dog calls Silas. [3] On 16 August 2010, the Council records show the dog Silas was declared dangerous pursuant to the Animal Management (Cats and Dogs) Act 2008 (“the Act”). [4] On 28 July 2011, the Council carried out an inspection on the Applicant’s former address at 72 Maclean Street, Gulliver. The Applicant was not -- 2 of 7 -- 3 home during the inspection. As a result of that inspection the Applicant was issued with an Infringement Notice for failing to comply with the Regulated Dog Information Notice. [5] On 1 August 2011, the Applicant was issued with a Compliance Notice by the Council allowing him 14 days to comply with the conditions required for the keeping a declared dangerous dog. [6] On 12 October 2011, the Applicant contacted the Council and said that he had sold the dog to a person who lived in Bowen. This is clearly not correct. Because of that information, the Council did not conduct any further inspections of the Applicant’s residence in Gulliver. [7] Sometime later, the Applicant contacted the Council and advised that the dog Silas was now back in his possession and living with him at the address of 27 Sabadine Street, Aitkenvale. Because of that new information, the Council conducted an inspection of those premises on 26 June 2012. [8] As a result of that inspection, the Council issued the Applicant with an Infringement Notice for failing to comply with section 97(1) of the Act. [9] On 28 June 2012 the Council issued the Applicant a Compliance Notice in an attempt to have him comply with the conditions for keeping a declared dangerous dog. [10] On 16 October 2012, the Council received the report of a dog attack at the Applicant’s premises. It was alleged that the dog responsible for that attack was the dog Silas. [11] On 17 October 2012, Council officers went to the Applicant’s address where they spoke with the Applicant. The Applicant told them that he was aware of the attack and that he had seen the dog Silas bite the victim. He also said that he has inadvertently left the gate open and allowed the dog to escape and attack the victim. [12] Inspections were carried out on the premises by the Council employees. It was established that the Applicant had not complied with the conditions of keeping a dangerous dog. Notably, the dog was not seized by the officers on this occasion. Instead the officers complied with their normal procedure, which was to apply for a warrant to enter the premises and seize his dog. [13] On 22 November 2012 the Council obtained that warrant to enter the Applicant’s premises pursuant to section 130 of the Local Government Act 2009. The warrant also authorised the Council to search for and seize dogs on the property pursuant to section 125 of the Act. [14] In making the application for the warrant to seize the dog, the Council supplied information to the issuing Magistrate that the Applicant was keeping dogs (plural) in contravention of the Act, and the warrant was -- 3 of 7 -- 4 needed to seize the dogs. It is clear that there is only one dog living at the premises. [15] There is no specific reference made in the application for the warrant, or the warrant itself indicating that the dangerous dog to be seized was the dog Silas. [16] On 28 November 2012, the Council served the Applicant with a Destruction Order for the dog Silas. In seeking that Order, the Council cited four reasons: 1. That Silas was declared dangerous because he had seriously attacked or acted in a way that caused apprehension to a person or another animal. 2. A compliance notice has been issued to the Applicant on 28 June 2012 for him failing to comply with the requirements of the Regulated Dog Declaration Information Notice issued to him on 16 August 2010. 3. The dog Silas attacked the person at the Applicant’s address on 16 October 2012, due to it being outside its enclosure. 4. On 28 November 2012 an inspection of the Applicant’s address showed that the Applicant still had not complied with the Compliance Notice served on him on 28 June 2012. [17] In his submissions to the Tribunal, the Applicant acknowledged that the dog Silas had been declared dangerous by the Council. He was of the impression that the dog Silas was allowed to stay at the Maclean Street address, provided that the fence was fixed. He was unhappy with the Council, in particular the Local Laws Officer, Kylie Quick and because of this he told the Council that the dog was in Bowen. He then moved to the Sabadine address and took the dog Silas with him. [18] It was not long after the Applicant registered the dog Silas with the Council that Local Laws Officer Kylie Quick paid him a visit. It appears from what the Applicant says is that there was a personality conflict between himself and Kylie Quick and he felt that he could not communicate with her. [19] The Applicant acknowledged that he was served with a Compliance Notice which related to securing a suitable fence pursuant to the provisions of the Act. He had not completed the fence at the time that the Local Laws Officer David Robertson arrived at his house with a warrant to seize the dog. [20] The Applicant acknowledged that the victim of the attack by his dog was bitten three times in the singular attack, and that he was responsible for keeping the dog secure within the confines of the property in a properly enclosed yard to prevent such an incident. [21] The applicant told the Tribunal that he left the gate open because he was working on his motor vehicle, but he disputes THE Council’s position that -- 4 of 7 -- 5 the dog is a dangerous dog because the Local Laws Officer, Mr Robertson, was able to pat and play with him through his cage. The Applicant also told the Tribunal that he had been told by Mr Robertson that staff of the RSPCA where Silas was kept was also able to play with the dog and enter his cage. [22] The Applicant says that he does not seek to escape prosecution by the Council for what has occurred; he just does not want any harm to come to the dog because of his own negligence. [23] The Tribunal has heard evidence from Kerry Barbara Fealy, who was the victim of the dog attack in October 2012. Evidence was also given by David Lloyd Robertson, a Local Laws Officer for the Council. [24] Ms Fealy gave evidence of going to the front door of the Applicant’s premises to collect a shopping catalogue. She was then attacked from behind by the dog. It was only one attack in which she received three separate injuries. She says that she does not want any harm to come to the dog. [25] Mr Robertson is an experienced Local Laws Officer, in particular with regard to the control and management of dogs. He said that Ms Fealy’s complaint was received on 16 October 2012. He visited the premises the next day to carry out an inspection to make the Applicant aware of the complaint. [26] He took photos on that day. It seemed to him that the Applicant did not comply, or at least the attempts by Mr Cundy to comply with the provisions of the notice were inadequate. The fence was inadequate in height and the gates had still not been fixed with self-closing and self-latching mechanisms. [27] The dog was not registered, and the registration was due to be paid by 8 October 2012. [28] He returned to his office, had a discussion with his supervisor and other staff, and the decision was made to follow Council’s internal procedures for deal with such matters. The Council later applied for a warrant to enter the premises and seize the dog. [29] When the application was made for the warrant, the dog Silas was not particularly mentioned by reference to its name, but reference was made to the Applicant’s address. The warrant was not issued until approximately five weeks after the dog attack upon Ms Fealy. [30] It was concerning to the Tribunal that the dog, if deemed to be so dangerous, was left in the possession of the Applicant for that period of time when the Council knew that he had not complied with previous compliance orders. It would appear that the Council took, by their own decision, allowed that dog to remain at the Applicant’s premises. -- 5 of 7 -- 6 [31] At the time of the attack upon Ms Fealy, the dog was not registered. It has since been registered with the Council by the Applicant. The Council accepted the registration fee of $300 from the Applicant on 14 January 2013, a significant period of time after the dog had been seized. [32] The dog has since been housed at the premises of the RSPCA and the Council has incurred expenses of $737.40 in pound fees to maintain and house the dog with the RSPCA. [33] Despite the Council on at least two occasions inspecting the Applicant’s premises at Maclean Street and Sabadine Street, no seizure was made of the dog despite the number of breaches that the Applicant had made or had been responsible for. He had been prosecuted for those matters. [34] The Council seeks that the Applicant’s application be dismissed and that the dog Silas be destroyed. Reliance is placed upon the Applicant deceitfulness in saying that the dog had been sold and was living at an address in Bowen. The Council was also concerned that the Applicant failed to adhere to the Compliance Notices which were issued to him over a period of two years. [35] The Council also relies upon the attack upon Ms Fealy as another reason why the dog should be destroyed, along with the Applicant’s inability to control the dog during the attack. The Applicant allowed the dog to roam free in the front yard of his premises after the attack. The Council argues that there is a grave risk to the community if the dog was to be left in the possession of the Applicant. [36] The Applicant says that his application should be affirmed and that the dog should not be destroyed because of his negligence, or because he has been non-compliant with the erection of a proper enclosure, or not properly erecting the enclosure as per the compliance notices. He also says that since the seizure of the dog, the Council accepted his payment of the dangerous dog registration fee. [37] The Tribunal was troubled by the Council’s decision to leave the dog, that was known to the Council as a dangerous dog, and which had been declared a dangerous dog, in the possession of the Applicant for about five weeks between when the dog attacked Ms Fealy to when the warrant was executed to seize the dog. [38] It is unexplained as to why the Council, deeming the dog to be such a serious risk to the community, would be allowed it to remain at those premises knowing that the compliance by the Applicant was not carried out. [39] A person affected by a reviewable decision may apply, as provided, under the Queensland Civil and Administrative Tribunal Act 2009. [40] The Tribunal must hear and decide a review by way of a fresh hearing on the merits of the application. The purpose of the review is to produce the correct and preferable decision. -- 6 of 7 -- 7 [41] In carrying out its functions to produce the correct and preferable decision, the Tribunal may either confirm or amend the decision; or set aside the decision and substitute its own decision; or set aside the decision and return the matter for reconsideration to the decision maker for the decision, with the directions the Tribunal considers appropriate. [42] Accordingly the Tribunal sets aside the Council’s decision. The appropriate Orders are – 1. That by 4:00pm on 28 January 2013 the Applicant is to erect an enclosure (“the enclosure”) at the premises of 27 Sabadine Street, Aitkenvale (the Applicant’s address”) which complies with the requirements for keeping a declared dangerous dog as provided for in Schedule C of the Regulated Dog Declaration Information Notice (“Schedule C”). 2. On 29 January 2013 the respondent shall inspect the Applicant’s address to ensure that the Applicant has complied with the requirements of Schedule C. 3. That if the enclosure at the Applicant’s address is compliant with Schedule C, the dog Silas shall be returned to the custody and control of the Applicant at the Applicant’s address by 5:00pm on 29 January 2013. 4. That if upon inspection of the Applicant’s address on 29 January 2013 the Applicant has not complied with the requirements of Schedule C, the respondent is at liberty to enforce the Destruction Order made pursuant to section 127 of the Animal Management (Cats and Dogs) Act 2008. 5. That the Applicant pay costs to the Respondent to the amount of $856.95 being reasonable costs incurred by the Respondent for the management and other incidental costs incurred during the period that the dog Silas has been under the care of the Respondent, and such amount is to be paid to the Respondent by 4:00pm on 18 March 2013. THE TRIBUNAL FURTHER DIRECTS: 1. Whilst the dog Silas is in the custody and control of the Applicant, the Applicant shall at all times abide by the requirements of Schedule C. -- 7 of 7 --