Victorian Civil and Administrative Tribunal|2013-04-03|Before: Mr J

Applebee v Monash CC (Review and Regulation) [2013] VCAT 394 (3 April 2013)

Review and Regulation List - Domestic Animals Act 1994 - s. 98A Restricted Breed Dogs - whether dog meets criteria of a restricted breed dog - Pit Bull Terrier

Applebee v Monash CC (Review and Regulation)

The declaration of the respondent dated 11 December 2012 is affirmed.

On 4 December 2012, the respondent collected and impounded 2 dogs owned by the applicant. One of the dogs, named Kerser, is the subject of this application.
On 11 December 2012, an Authorised Officer of the respondent gave notice, under section 98A of the Domestic Animals Act 1994, (the "Act") to the applicant that she had declared Kerser to be a Restricted Breed Dog, namely an American Pit Bull Terrier.
Kerser is currently not registered. Nor is he desexed. The implications of the declaration for Kerser are therefore significant. Under section 41EA of the Act there is a prohibition on keeping a Restricted Breed Dog, (who was not registered in Victoria before 30 September 2011) and under section 17(1AA) the Council is not permitted to register such a dog.
The applicant seeks review of the respondent's decision to declare Kerser a restricted breed dog.

The definition of restricted breed dog is contained within section 3 of the Act.

3(3) a dog that falls within an approved standard for a breed of dog specified in a paragraph of the definition of restricted breed dog is taken to be a dog of that breed.

(4) for the purposes of subsection (3) an approved standard is a standard that has been approved by the Minister and published in the Government Gazette.

The approved Standard for Restricted Breed Dogs in Victoria came into force published in Special Gazette S283 on 1 September 2011.
Part 1 of the Standard relevantly provides:
1. A dog that meets the description of a dog in this Part is an American Pit Bull Terrier; except a dog in respect of which the owner has one of the following certificates stating that the dog is an American Staffordshire Terrier-

(a) a pedigree certificate from the Australian National Kennel Council

(b) a pedigree certificate from a member body of the Australian National Kennel Council

(d) a certificate signed by veterinary practitioner [1]

No certificates have been produced by the applicant stating the breed of the dog. Accordingly it is necessary to compare Kerser against the Standard.

In Dudas v Monash City Council; Tarawa-Shearer v Darebin City Council [2012] VSC 578 His Honour Judge Kaye held that -

"the requirement that a dog 'meet the description' of the American Pit bull Terrier must contemplate a substantial or high level of correspondence between the characteristics of the particular dog in question and the description of those characteristics in the standard."

Accordingly, the issue to be determined in restricted breed dog cases is whether there is a substantial or high level of correspondence between the material characteristics of a dog and the criteria specified in the standard.
Given the serious and grave implications for the dog, if I am to declare him a restricted breed dog, I should be satisfied on the "Briginshaw" standard and feel an actual persuasion, or be comfortably satisfied that the dog meets the Standard to a substantial degree.

I heard evidence from 4 key witnesses in this case.
Ms Rebecca Graley, who has been an Animal Management Officer with the City of Monash since January 2012. She investigates complaints with respect to all animals (with a particular emphasis on dogs and cats). She has had direct dealings with approximately 10-15 American Pitbulls. She made a statement dated 20 December 2012 and gave evidence that she, together with two others, compared Kerser to the Standard and found that he met the key characteristics as set out in the Standard.
Ms Graley's evidence was corroborated by the evidence of Mr Wisdom who is a Senior Animal Management Officer with the City of Monash and Ms Shenton who is a Local Laws Management Officer with the City of Monash.
Ms Lynne Harwood is an International All Breeds Dog Judge, with an extensive history in showing dogs and judging. On 24 January 2013 she assessed Kerser against the Standard and concluded that he did not meet the key characteristics as set out in the Standard.
I viewed Kerser in the company of Counsel for each of the parties and their expert witnesses.
I turn now to an examination of the evidence as it applied to the Standard.

The American Pitbull Terrier is a medium sized dog and is strongly built with well defined muscles. The breed is noted for its climbing ability and subsequent strength in the hindquarters. The overall outline of the breed indicates it to be slightly longer in length (point of shoulder to buttocks) than height (withers to ground). Bitches may be slightly longer than males. A distance from withers to the elbow and elbow to the ground is generally equal.
Ms Graley felt the overall appearance of the dog complied with this aspect of the Standard. She said "the dog is a medium sized dog that is strongly built with well defined muscles. The hindquarters have clearly defined muscles". Ms Graley emphasised that a dog's physical attributes change as it ages and although the dog was only 10 months of age that it was already showing the attributes of the breed**.**
Ms Graley stated that that the "dog's head, body and hindquarters are all in proportion with each other".
In her evidence before me, Ms Harwood emphasised that Kerser did not meet the requirements of the Standard in a general sense. She emphasised that the Pitbull is a fighting dog which needs to be able to barrel itself against its opponent in a pit and requires great strength coupled with an ability to latch on and keep on. She gave evidence that Kerser lacks the bone and musculature that one would expect to see in a Pitbull.
The measurements given by the parties were not consistent with each other.
Ms Graley gave his weight as 26.6kgs. Ms Harwood said there was no facility to weigh the dog but conceded he was good weight for his height.
Ms Graley gave Kerser's height as 52cm which would comply with the Standard. Ms Harwood gave his height as 54cm which would not comply.
Ms Graley gave Kerser's length as 51cm and noted that the length is only slightly longer than the height. Ms Harwood gave the length as 55cm and stated that this would make the dog generally equal which makes it square.
The measurements withers to elbow also varied between the parties. Ms Graley measured him at 22cm; Ms Harwood at 24cm.
The parties agreed on the measurement of elbow to ground as being 30cm.
Ms Graley and her team used a measuring tape and gave evidence that there was some difficulty in measuring Kerser because he was not being co-operative. Ms Harwood used a metal measuring rod and tape, which she stated was the only accurate method of obtaining measurements. She stated that she had no difficulty measuring Kerser. The applicant asked me to prefer the evidence of Ms Harwood over Ms Graley. The applicant pointed to the difficulties experienced by the respondent when taking measurements from Kerser as evidencing the superior expertise of Ms Harwood.

The differences between the parties relating to the measurements of Kerser were not resolved when we attended to view him. Kerser proved uncooperative in allowing measurements to be taken. Neither party was able to take any accurate measurements despite ongoing efforts to do so. I was not in these circumstances able to draw the inference against Ms Graley that the applicant had implored me to draw. I was also unable to conclude that the measuring rod preferred by Ms Harwood would have given a more accurate measurement because Ms Harwood did not bring any measuring equipment with her to the view.
In these circumstances I was left to rely on my overall impression of the animal rather than being assisted with precise measurements. This is in keeping with the philosophy of the Standard in any event.
The Standard states, for example, that -

" the disparity between height and weight is considerable and importance should be placed on the overall consideration of the assessment of the dog rather than adhering absolutely to the guidelines on height".

My impression of the dog was one of broad compliance with the Standard.
I observed a medium sized dog who appeared to me to be strongly built with well defined muscles with some strength in the hindquarters. He appeared to me to be slightly longer in length (point of shoulder to buttocks) than height (withers to ground) with the distance from withers to the elbow and elbow to the ground generally equal.
The Standard provides a mechanism through which it is possible to also fragment a dog to ensure all aspects of the animal have been considered when reaching a conclusion as to whether or not the dog meets the description of a restricted breed dog. I turn now to a consideration of those fragments in order to test my general impression of Kerser.

Head : The head is proportionate to the dog. Viewed from above, the general shape of the head is that of a blunt wedge, large and broad. Viewed from the side, the skull and muzzle are on parallel plains separated by a moderately deep stop. Arches over the eyes are well defined but not pronounced (refer figure 3)

The head is in proportion with the dog. It is large and broad. Viewed from the side, the skull and muzzle are on parallel plains. Viewed from above, the general shape of the head is that of a blunt wedge. The arches over the eyes are clearly visible and well defined.

Does not comply. This dog's cheek muscles are not as muscled as required by the standard. The general shape of the head when viewed from above is not that of a blunt wedge. He is quite loose and wrinkled in cheeks.

Although the parties agreed that Kerser's head shape is that of a wedge, they did not agree on whether it was a blunt wedge or an elongated wedge. They did not agree as to whether the dog should be viewed face on, as depicted in the photos contained within the Standard or whether the words "from above" contained within the Standard meant looking down upon the top of the skull.
There was considerable debate over these issues. The photo taken by Ms Harwood of Kerser was clearly taken from above, whereas the photos taken by the Council officers were to the front of the face. Ms Harwood gave evidence that in all of her years of experience "from above" means looking down upon.
In the end result it did not make a great deal of difference. I found the inspection of Kerser to be very helpful. I was satisfied that from every angle the shape of Kerser's head was that of a blunt wedge and compliant in this respect with the Standard. I did not consider that the photos produced by Ms Harwood accurately depicted Kerser.
There was also considerable dispute between the parties as to whether Kerser had a deep stop as required by the Standard or a shallow stop. I found Kerser to have a moderately deep stop, with moderately well-defined arches. His compliance with the Standard was therefore more ambiguous in this respect.

Muzzle: Slightly shorter in length to the skull (i.e. 2:3 ratio for muzzle: skull). It is broad, deep and powerful with a slight taper to the nose and falls away slightly under the eyes

The muzzle is slightly shorter in length to the skull. It was difficult to measure but was approximately 2:3 ratio. Muzzle is broad and deep with a slight taper to the nose**.** In her notes Ms Grayley wrote skull 13; Muzzle 9 - 9:13

Does not comply - Length of skull is 14 cms; muzzle is 8 cms giving ratio of 2:3:5 so slightly longer skull than required by standard

As stated above the disparity in the measurements was unable to be resolved. It appeared to me that the muzzle was in fact only slightly shorter in length to the skull. Although Ms Harwood gave evidence that the muzzle was not broad and deep because the skull was too long for this to be the case, I did not agree with her observations and preferred the evidence of the Council Officers when coupled with my own observations.
I observed a slight taper to the nose and fall away under the eyes as required by the Standard.

Skull: Large, fairly flat, broad and deep, slightly tapering towards the stop. There is a deep median furrow reducing in depth from stop to occiput. Cheek muscles are prominent but free of wrinkles. When the dog is alerted wrinkles will form on the forehead.

Skull is large, fairly flat, broad and deep. There is a deep median furrow that reduces in depth from stop to occiput. Wrinkles would form on the forehead when the dog was alert.

Ms Harwood felt the dog's head profile matched a female head from the Standard yet Kerser is male. She felt the skull does not comply as -

"the cheek muscles are not as prominent as the Standard requires. He has loose wrinkled skin in his cheeks. Median furrow is not deep."

I found the skull complied with the standard with the exception that the cheek muscles were not particularly prominent. Ms Harwood emphasised the importance of the cheek muscles.

Ms Graley states in her notes that the lips are loose. Ms Harwood agrees.

The lips are loose and accordingly do not comply with the standard.

Teeth: Large and a complete scissor bite i.e. upper teeth closely overlapping the lower teeth and set square to the jaws.

"The teeth are large and with a complete scissor bite. The dog is very young so the teeth were clean. Upper teeth closely overlap the lower teeth"

Ms Harwood agrees that the teeth comply and that there is a scissor bite.

I find that the teeth comply with the Standard.

Nose: Large with wide open nostrils and may be of any colour.

Ms Harwood agrees that the nose complies with the Standard.

I find that the nose complies with the Standard.

Eyes: Medium in size, round in shape and set low in the head - not prominent. Eyes can be all colours except blue. The eye rims are the same colour as the skin colour

" medium in size, round in shape and set low in the head. The eyes are not blue, rather a and hazel colour. The eye rims are the same colour as the skin

Ms Harwood stated that the eyes did not comply as they are medium size almond shaped eyes.

There was significant discussion about the shape of the eyes. I found the eyes to be round. I did not agree with Ms Harwood's evidence that the eyes were of "oriental" appearance.

Ears: The shape and carriage of the ears will vary from dog to dog. Generally they are set fairly high on the skull, not large and may be half pricked or rose shaped (i.e. folding backwards and exposing the inner burr of the ear).

"set fairly high on the skull, not large and are rose shaped when relaxed, exposing the inner burr of the ear"

Ms Harwood agrees that the ears comply with the Standard.

Neck : Moderate length and with great strength, tapering from the head into the shoulders. A slight arch over the crest. The neck must be free from loose skin or dewlap (loose, pendulous skin under the throat).

"of moderate length and is proportionate with the rest of the body. It is of great strength and tapers from the head into the shoulders. There is a slight arch over the crest"

Ms Harwood stated the neck does not comply. She said -

"the neck has loose pendulous skin under throat. Thick neck and short in length, not elegant. No taper from head to shoulders. Jawline well below backline."

In her evidence Ms Harwood agreed that there was some strength to the neck and there is also a slight arch over the crest.

I found that the neck was compliant with the Standard with the exception that there was some dewlap.
I disagreed with the observations of Ms Harwood that Kerser has a thick short neck. I found the neck to be of moderate length with significant strength.

Forequarters : Strong forelegs, well boned and muscular with elbows fitting close to the body. Viewed from the front the forelegs are set moderately well apart and in a straight line to the ground.

The pasterns are short and fairly straight but with flexibility. Viewed from the side, the legs are straight with some flexibility in the pasterns.

"The dog has strong forelegs that are well boned and muscular. When viewed from the front the forelegs are set moderately well apart and in a straight line to the ground. The pasterns are short and fairly straight**".**

"does not comply - Viewed from the front the forelegs are set moderately well apart but are not in a straight line to the ground. Forelegs indicate weakness by the bowed appearance with his feet turning out considerably. This reminded me of the front of a Dogue de Bordeaux. Elbows are not held close to the body. The pasterns are not straight and are weak as bone tapers quite considerably. Viewed from the side the legs are not straight."

I found that the pasterns were not straight and the forelegs did indicate some weakness by the bowed appearance. Kerser did however on my observations have muscular forelegs. The overall impression was not however one of compliance with the Standard.

Body : Powerfully built with a deep chest of moderate width.

"the subject dog is young but is already powerfully built with a deep chest of moderate width. The body is in proportion with the rest of the dog as it has a big head and well defined forequarters and hindquarters"

"does not comply - big dog not powerfully built for size, lacks musculature"

I agreed with the description given by Ms Graley. My observations of Kerser were of a powerfully built dog with a deep chest of moderate width. I disagreed with the evidence given by Ms Harwood that he was long in leg and slight in body.

Forechest: Should not extend far beyond the point of shoulder or below the elbow. Well ribbed back with moderate tuck up (concave underline of the body curving upwards from end of the ribs to waist).

"The forechest does not extend far beyond the point of shoulder or below the elbow. When I felt the dog and viewed it from many angles it had a well ribbed back. There was a clear concave underline of the body curving upwards from the end of the ribs to the waist."

Ms Harwood agrees that the forechest complies with the Standard.

I find that the forechest complies with the Standard.

Back: Broad, strong, firm and level and with a slight incline at the withers.

"The back is broad, strong and firm with a slight incline at the withers"

"does not comply - back has dip well behind withers then reaches to loin so back lacks strength"

Although I found the back to be broad and strong, I agreed with Ms Harwood that the incline was well behind the withers and in this respect not fully compliant with the Standard.

Loin: Short and deep with a slight slope to the croup.

"does not comply - loin rises considerably over croup"

I agreed with the observations of Ms Harwood that the loin rises over the croup and in this respect Kerser was not compliant with the Standard.

Hindquarters: Strong and muscular hindquarters that are in balance with the forequarters. Thighs are well developed and muscular.

The hock joint should be well bent and the rear pasterns close to the ground perpendicular and parallel to each other.

"The hindquarters are strong and muscular, which are in balance with the muscular forequarters. The thighs are well developed and muscular for a young dog and are in proportion with the rest of the dog. The hock joint in well bent and the rear pasterns are close to the ground"

"does not comply - strong and not muscled; back feet also turn out. The stifle joint moderately bent with little width of ham. Rear pasterns slightly cow hocked back feet turn out"

I found that Kerser met the Standard except with respect to the rear pasterns which depending on the stance of the dog, did appear from time to time to be slightly turned out. His hindquarters were strong and muscular and the hock joint was well bent.

Feet: The feet are round and in balance with the size of the dog, well arched and tight. The pads are hard and well cushioned. Nails are strong. Dewclaws may be removed.

"the dog has splayed paws that are not very round and rather long".

"does not comply - toes are splayed and long; flat footed".

I find that the dog does not meet this aspect of the Standard.

Tail: The tail is set in line with the back and tapers to a point. At rest the tail is carried low and when excited may be carried raised but never curled over the back. The length of the tail should reach approximately to the hock joint.

"The tail is set in line with the back. When the dog is at rest and relaxed the tail is carried low. When it got excited the tail would be raised but never curled over the back. The tail reached approximately to the hock joint"

"does not comply - tail is set low so the carriage on the move is high as in the 4th diagram because of the roach over loin and the tail being set lower than standard requires. The tail reaches 3 cm past hock joint"

The tail was set in line and reached approximately to the hock. Kerser meets this aspect of the standard. My observations of Kerser at no time supported a finding that his tail reached 3 cm past the hock joint no matter how the tail was handled.

Coat: The coat is short, smooth, glossy and of a harsh texture, free of undercoat.

"The coat is short, and harsh and free of undercoat"

Ms Harwood agrees that the coat complies with the Standard.

I find that the tail complies with the Standard.

Colour - All colours and combination of colours are acceptable, with the exception of blue merle and pure white. White feet and a splash of white on the chest are not uncommon on solid coloured dogs.

Ms Harwood agrees that the dog complies with the Standard.

I find that the colour complies with the Standard.

I am satisfied that Kerser readily meets the description of a Pitbull in the Standard in the areas of his teeth, nose, ears, forechest, colour, eyes, tail and body.
I am satisfied that Kerser does not meet the Standard with respect to his lips, loin and feet.
I turn then to a consideration as to whether therefore Kerser substantially complies with the Standard with respect to his head, muzzle, skull, neck, forequarters, back and hindquarters. These are all very important aspects of the dog which go to the overall sense of strength and power of the dog.
I am satisfied that Kerser substantially complies with the Standard with respect to his head. I found the shape of his head complied with the Standard and although the stop was only moderately deep and the arches moderately well-defined, coupled with the shape of his head there was compliance to the requisite degree. Kerser's head may not be a perfect example of a Pitbull but the overall impression is that of compliance with the Standard to a substantial degree.
I found the skull substantially complied with the Standard. Although the cheek muscles were not particularly prominent, I found that in all other respects the skull did comply and that once again the overall impression was that of meeting the Standard.
I found the neck substantially complied with the Standard. Although there was some dewlap, it was very minimal and did not detract from the overall impression of compliance with the Standard.
I found that Kerser's hindquarters substantially complied with the Standard. His hindquarters were strong and muscular and the hock joint was well bent. Although there was ambiguity around his rear pasterns which, depending on the stance of the dog, did appear from time to time to be slightly turned out, I was not satisfied that this lead to a conclusion that there was not substantial compliance.
I found that the forequarters did not substantially comply with the Standard. The important aspect of the forequarters in meeting the Standard must be of strength. Although he had muscularity of the forequarters, I was not comfortably satisfied overall to the requisite standard that Kerser complied with the Standard given the weakness indicated by the bowed appearance.
Although I found the back to be broad and strong, the incline was well behind the withers such that I was not satisfied that the back substantially complied with the Standard.

I am satisfied that Kerser substantially meets the Standard. The overall impression of Kerser is one of compliance. He may not be a perfect example of a Pitbull, however such a dog probably does not exist. Kerser meets the Standard in a significant number of areas to a substantial degree. Even in the areas where he does not meet the Standard to a substantial degree, he meets the Standard to some degree and importantly in the areas of musculature and strength.
The decision of the respondent to declare Kerser a restricted breed dog will be affirmed.

[1] The words "stating, or to the effect, that the dog is of particular breed" were deleted on 10 February 2012 Victoria Gazette no. S 32, 10 February 2012

Applebee v Monash CC

At a glance

Court

Decision date

Before

Source

Judgment (100 paragraphs)

Applebee v Monash CC (Review and Regulation) [2013] VCAT 394 (3 April 2013)

Parties