Boland v Townsville City Council [2011] QCAT 689

CITATION: Boland v Townsville City Council [2011] QCAT 689 PARTIES: Skye Boland v Townsville City Council APPLICATION NUMBER: GAR203-11 MATTER TYPE: General administrative review matters HEARING DATE: 21 October 2011 HEARD AT: Townsville DECISION OF: Mr John Carey, Member DELIVERED ON: 28 October 2011 DELIVERED AT: Townsville ORDERS MADE: a) The Application is dismissed and the destruction order dated 14 June 2011 is confirmed. b) The Applicant is to pay costs incurred by the Respondent in the sum of $935.00. CATCHWORDS: Destruction order – public interest Animal Management (Cats and Dogs) Act 2008 APPEARANCES and REPRESENTATION (if any): APPLICANT: In person RESPONDENT: Ms C Conaghan REASONS FOR DECISION Background [1] This is an application brought by the Applicant for review of a destruction of animal order made by the Respondent on 14 June 2011. [2] The matter proceeded in an unusual manner due to some confusion both on behalf of the Applicant and the Respondent as to how the matter was to proceed on the day of the hearing. Neither party seemed sure whether the matter was proceeding as a hearing or as a compulsory conference, notwithstanding that the directions made on 30 August 2011 are unambiguous. -- 1 of 4 -- 2 [3] This decision is made based on the evidence given by the Applicant, including material previously filed in the Tribunal in compliance with the directions dated 30 August 2011 and the material filed and submissions made on behalf of the Respondent. The Respondent did not call any witnesses, but merely made submissions and relied on the material previously filed with the Tribunal. Applicant’s Submissions and Evidence [4] The Applicant gave evidence in person. She was in an emotional and anxious state and the Tribunal allowed her to be assisted by a friend, Ms Kerry Wright. The Respondent consented. Ms Conaghan appeared on behalf of the Respondent. [5] The Applicant was given the opportunity of an adjournment in order to obtain legal and other advice. That opportunity was declined and the hearing proceeded. The Tribunal is satisfied that the Applicant had notice of the hearing due to her attendance at a directions hearing by telephone on 30 August 2011, at which time the hearing date was set. [6] The Applicant gave evidence that: a) She was out of town on the day the incident occurred. b) The dog, Ruby, had previously been declared a dangerous dog by virtue of an attack on another animal. c) The only way for the dog to get out of the property was, in her view, if someone had let it out by loosening a strap which was attached to a gate in her yard. Since the event the subject of this application, the strap has been replaced with a padlock on a swing shut gate. d) The Applicant believes that a neighbour let the dog out on purpose but conceded that there is no evidence to prove that. She asserted that since the event she had received threats and verbal abuse from that neighbour. No threats were made prior to the date of the attack. e) Action she had taken since the dangerous dog declaration (but before the attack on 14 June 2011) was to comply with the requirements of the dangerous dog declaration. Officers employed by the Respondent had inspected the premises and noted that the Applicant had complied with the dangerous dog declaration. She had also taken the dog to a vet who asserted that the dog was not “people aggressive”. f) The Applicant‟s primary evidence was that she had done everything she could do to keep the dog in and therefore was not responsible for its escape. Council’s Submissions and Evidence -- 2 of 4 -- 3 [7] The Applicant did not deny that the attack occurred. [8] The animal attacked another animal and a human being. [9] Both the animal and the human being were injured as a consequence of the attack. [10] Even if the Applicant had taken steps to prevent the dog from being out of the yard, the Animal Management (Cats and Dogs) Act 2008 („the Act”) and Schedule 1 to the Act requires that the dog be muzzled and under effective control when in a public place. That did not occur. [11] The dog had been previously involved in an attack on another animal in January 2011. As a consequence of that the dog, Ruby, was declared a dangerous dog pursuant to the Act. [12] The dog was involved in a second attack on 14 June 2011. As a consequence of that, pursuant to Chapter 4 of the Act, the Respondent issued a destruction order. [13] The dog was also seized pursuant to section 127 of the Act. [14] Schedule 1 to the Act (paragraph 3) provides that a relevant dog must not be in a place that is not the relevant place for the dog unless it is: a) Muzzled; and b) Under the effective control of someone who has the control of no more than one dog at the same time. It is on the basis of the prior attack and the breach of the Act that the Council issued the destruction order, and after internal review, decided that the destruction order would not be revoked. Reasons for Decision [15] Having heard the submissions and evidence from the Applicant and having read the material and submissions from the Respondent the Tribunal is satisfied that the Council destruction order is valid and ought not be revoked, for the reasons outlined below. [16] Section 89 of the Act requires that a dangerous dog declaration may be made only if the dog has seriously attacked or acted in a way that causes fear to „a person or another animal‟. That has occurred in this case. The Applicant did not dispute the dangerous dog declaration. [17] Section 125 of the Act entitles the Respondent to seize the dog if the dog „has attacked, threatened to attack or acted in a way that causes fear to, person or other animal‟. The Tribunal is satisfied that this has occurred. [18] Pursuant to section 127 of the Act the Respondent has power to destroy a seized regulated dog. -- 3 of 4 -- 4 [19] In deciding this matter, the Tribunal must have regard to the public interest in deciding whether to set aside the destruction order. Section 59 of the Act provides that the purpose of Chapter 4, Regulated Dogs, is to “protect the community from damage or injury, or risk of damage or injury” from declared dangerous dogs (among others). [20] The Applicant has not satisfied the Tribunal that the destruction order should be set aside because: a) The dog was declared dangerous following an unprovoked attack on another animal in January 2011. b) The dog attacked, again unprovoked, in June 2011. c) The dog has a history of attacking when out of its yard. d) There is no evidence that the dog will not behave in the same manner in the future. The public interest requires people and animals (properly restrained) to be able to utilise public areas without fear of being attacked. Costs [21] Section 102 of the Act provides that the Respondent may, if it incurs a cost to provide a seized dog with accommodation, food, rest, water or other living conditions, recover the cost from the dog‟s owner if the incurring of the cost was necessary and reasonable. The Tribunal is satisfied that the costs of seizing and housing the dog were reasonably incurred, however is not satisfied that the additional cost incurred by moving the dog from the RSPCA premises to MyKitto Kennels was necessary. [22] The Council sought costs as follows: i) Housing the dog at the RSPCA from 13-16 January at $100 a day = $400. ii) From 17 June-12 July, 26 days at $5 per day = $130. iii) 13 July to the day of the hearing 101 days at $22 per day = $2,222. b) Pursuant to section 102 of the Act, the Tribunal orders the Applicant to pay item (i) above and $5 per day (the RSPCA rate) from 13 July until the date of this decision. That is: $100/day (4 days) = $400.00 $5/day (13 July-28 October) = $535.00 TOTAL = $935.00 -- 4 of 4 --