1. Victoria Bennett, daughter of Michael Bennett is joined as an applicant in this proceeding.
2. The decision of the Respondent Council is set aside.

1. On 1 October 2012, Casey City Council declared the Staffordshire Cross Breed dog, Microchip No. 900 012 000 523 556 known as Bella to be a dangerous dog under section 34 of the Domestic Animals Act 1994 (the Act). It did so, primarily with reference to Bella:
   • (a) on 17 November 2011, allegedly attacking a terrier cross breed type dog (named Quincy) in a park where dogs are allowed 'off-lead'; and
   • (b) on 15 December 2011, attacking a whippet breed dog (named Fynn) in the same park.
2. Following the 15 December attack, on 6 January 2012, Council executed a search warrant at the Bennetts' home, seized Bella and later charged Mr Bennett with offences relating to the attack. Council obtained a search warrant because its officers had previously visited the Bennett's home to be told by Mr Bennett that Bella was not at that time on the premises. The Council officers believed otherwise.
3. On 17 August 2012, after a five day contested hearing with both parties legally represented, the Magistrates' Court of Victoria found that on 15 December 2011 Mr Michael Bennett had taken Bella to the park and immediately prior to the attack on Fynn had apparent, but not effective control of Bella. As discussed below, Mr Bennett maintains that Bella was not in the park and the Court's finding is wrong.
4. The Magistrates' Court found Mr Bennett guilty of the charges of being a person in apparent control of the dog at the time of the attack section 29(3) of the Act and of a breach of a "Local Law Offence"[1]. Mr Bennett was fined a total of $1,000, without conviction. He was ordered to pay $7,523 being part of the Council's costs, including $2,000, "pound fees". An application that it order Bella's destruction was withdrawn, with the Magistrate indicating he was leaning to rejecting the application. A significant issue was Mr Bennett advising the Court that Bella would be homed on a rural property in Emerald, Victoria.
5. On 1 October 2012, Council made the dangerous dog declaration.
6. Bella was kept at an animal shelter until in October 2012, Council returned her to Ms Victoria Bennet, Mr Bennett's daughter, who it is now clear is Bella's owner.
7. By application filed at VCAT on 23 October 2012, Mr Bennett sought review of Council's decision to declare Bella a dangerous dog. He opposed the dog being declared a dangerous dog. Mr Bennett said that due to health reasons, Victoria was unable to attend the VCAT hearing.
8. The issue of whether Mr Bennett is entitled to make the application depends on whether or not he owns Bella. Section 98 of the Act says only an owner may make the application to VCAT to review Council's declaration that the dog is dangerous. Mr Bennett, acting on behalf of his daughter Victoria, says Victoria owns Bella. Victoria attended a Council meeting concerning the then proposed dangerous dog declaration, saying she was the owner. Council did not press the point at the hearing before me, being content to at least view Mr Bennett as representing his daughter's interests.
9. The practical response to this dilemma is to join Victoria Bennett as an applicant in this proceeding, which I have done.
10. VCAT scheduled the proceeding for hearing on 15 March 2013. Mr Bennett represented himself and Victoria Bennett with the assistance of his wife, Ms Susan Bennett. The Council was legally represented.
11. Before the hearing, Mr Bennett filed a submission complaining about Council's failure to serve him with documents relevant to the proceeding. Council gave evidence it had served the documents. With the consent of the parties, VCAT resolved the matter by copying the documents in dispute, providing them to Mr Bennett and giving him time to read them.
12. I heard evidence and submissions and reserved my decision.
13. I now make finding about the alleged attacks.

1. I find that on 17 November 2012, Ms Susan Bennett (Mr Bennett's wife) and Ms Victoria Bennett encountered the dog Quincy and the dog's owner (who uses a mobility scooter) in the park. Quincy ran under Bella's legs, Bella was startled and rolled Quincy. Victoria grabbed Bella's collar and moved her away.
2. Quincy's owner said Bella had savaged Quincy. Susan Bennett checked Quincy, finding no injury. She and Victoria apologised to the owner. She and Quincy's owner agreed Quincy was unharmed and it was an unfortunate incident.
3. In making the above findings I accept Susan Bennett's evidence before me, which was subject to cross-examination. Quincy's owner did not appear to give evidence with respect to her witness statement.
4. I do not accept the owner's statement that Bella "savaged" Quincy. In her witness statement, she uses phrases such as

it suddenly flew at him, attacking him by biting at his side and bowling him over ... the other dog kept on attacking and biting over and over, all over his body

1. That statement is at odds with a statement later in her witness statement,

I brought Quincy straight home ... I checked him over and did not see any blood or puncture wounds, but he was very shaken by the attack and was sore all over.

Sue came over and tried to apologise, as did her daughter, but I was very shaken and just wanted to get home.

1. Critical evidence contradicting Quincy's owner's claim is contained in the short veterinarian report concerning Quincy, apparently produced the day after the attack. It said in part,

Dog was attacked by Am Staff yesterday on walk - bowled over a few times until the [owner] was able to get that dog off. Dog was covered in saliva, but no obvious skin abrasions seen. Dog has been quiet since, still eating and drinking okay, not showing obvious lameness ... settled today ...

Advised that dog is likely to have s/c bruising and some inflammation - settle with n/saids. [Advised] to keep quiet for a few days.

15 December attack - Court found Bella attacked Fynn

1. Following the contested hearing at the Magistrates' Court referred to above, the Magistrate said,

In conclusion, on a consideration of all the evidence, I find that the subject of 15 December [2011] was Bella, that Mr Bennett had taken Bella to the park on that day, that immediately prior to the incident he had apparent control but not effective control of Bella and that on the evidence Bella demonstrated uncharacteristic aggression towards Mrs Hart's, whippet [Fynn]. (Transcript of Decision, page 7 - my emphasis)

1. Mr Bennett wishes to contest this finding. He and others say Bella was in Geelong on that day. He says he restrained another dog that looked like Bella.
2. However, under the principal of 'issue estoppel', in this proceeding Mr Bennett is precluded from asserting Bella did not attack Fynn, contrary to the Magistrate's finding, which was legally indispensable to him being found guilty of the charge of being a person in apparent control of a dog at the time of an attack.
3. The law as to issue estoppel is summarised in Halsbury's Laws of Australia,,

[190-100] Principle - A final judgment by a competent tribunal creates an issue estoppel in that it forever binds the parties and all those who claim through them in respect of any issue of fact or law which was 'legally indispensable' to that decision. For the doctrine of issue estoppel to apply in a second set of proceedings, the following is required in respect of earlier proceedings:

(2) the judicial decision which is said to create the estoppel was final; and

(3) the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.

1. Halsbury's refers to the Blair & Perpetual Trustee Co Ltd Curran v (Adams' Will,) [1939] HCA 23; (1939) 62 CLR. 464 at 531, where Dixon J said,

A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared.

1. These principles were recently reiterated at length in the Supreme Court of Victoria Court of Appeal's decision in Forster v Legal Services Board (ABN 82 518 945 610) [2013] VSCA 73 (from para 98). The decision concerned a VCAT decision in its Legal Practice List. The Court decided issue estoppel operated. Kyrou AJA commented at para 109,

Had [VCAT] permitted the appellant to re-litigate this question, the result may have been two inconsistent decisions (one judicial and the other administrative) on the same factual matter. This is precisely the type of result that the doctrine of issue estoppel seeks to avoid.

1. Here, the Magistrate's Court has made a judicial determination involving an issue of fact. Determining that Bella attacked Fynn was necessary to establish the legal foundation for the Court's finding of guilt, which was a final determination, subject to appeal.
2. Mr Bennett and Casey City Council were the parties before the Magistrates' Court. If it is the case that Mr Bennett cannot in fact be a party in this proceeding, as he has no share in Bella's ownership, he is at least Victoria Bennett's 'privy' in this proceeding. Black's Law Dictionary, 9th edition defines the word 'privy',

The term also appears in the context of litigation. In this sense, it includes someone who controls a lawsuit though not a party to it;

1. Mr Bennet controlled the proceeding before VCAT on behalf of his daughter.
2. Therefore, I find that issue estoppel operates and so find that on 15 December 2011, Bella attacked Fynn at the park in question.
3. Had issue estoppel not operated, the facts that:
   • (a) the magistrate after a five-day contested hearing found it was beyond reasonable doubt that Bella attacked Fynn;
   • (b) in the context of the witness statements available to me from Fynn's owner;
   • (c) taking into account statements from the Bennett's and letters from a Ms Abbey, a Ms Bren and a Ms Myer (who did not demonstrate direct knowledge of the fact), that Bella was at the time in Geelong;

would have lead me to conclude that it is more likely than not that Bella attacked Fynn.

1. Given the issue between the Bennett and Council was whether Bella was the dog that attacked Fynn, not the circumstances of the attack, I accept the evidence of Fynn's owner as recorded in her witness statement dated 19 December 2011. The owner was out walking her two dogs at possibly 5 pm in the park. The dog (answering Bella's description) began following and then,

Suddenly the dog came around the side of us and it pounced on Fynn and attacked him by biting him on the back around his spine. Fynn squealed and I started shouting at the dog to get off. I was absolutely terrified of what the dog would do and I thought Fynn would be dead by the time it had finished. I still had Fynn's lead in my hand and I started kicking the dog in the ribs to try to get it to let go. The big dog was growling aggressively while it had Fynn in its mouth and after what seemed like a lifetime, but it was perhaps 20 to 30 seconds, the dog let go of Fynn. I was quite surprised as I didn't think it would stop until it had killed him.

1. Neither are Fynn's injuries in dispute. He received "

... multiple full thickness puncture marks ... On the right flank, the left croup and on the thoracic wall/spinal region.

These wounds granulated well, and with antibiotics should heal leaving some scarring that may or may not be visible once Fynn's hair regrows [2].

1. After speaking to other dog owners who use the park, Fynn's owner commented in her 19 December witness statement,

This not the first time this dog has harassed other animals and the owner does not seem to be taking any responsibility for the dog or its behaviour. I am very worried that next time the outcome may be much worse with the death of an animal or even an attack on a small child or person. I just want to see this person take responsibility for the dog and keep it on a lead.

1. Mr Bennett provided a report from Mr Brad Griggs, who describes himself as an "Applied Canine Behaviourist" and professional dog trainer with approximately 10 years experience working with the industry continually on a professional basis and details that experience.
2. Victoria Bennett asked him to assess Bella before she met with Council concerning the proposal that Bella be declared a dangerous dog. Mr Griggs assessed Bella at the animal shelter. He provided a report and attended the Council meeting. He was not available to give evidence at VCAT.
3. In his "Temperament Evaluation" dated 12 September 2012, he concluded,

Based on the behaviour that I observed during my evaluation of Bella I do not consider Bella to be an aggressive dog, nor do I consider her to be a dog at high risk of an aggressive spectrum response due to high prey drive or high anxiety.

1. Mr Griggs went on to recommend substantial training for Bella to bring her under more effective control. He recommended when in public she wear a collar that would prevent pulling and act as a safety device in case of a "worst case scenario event".

1. Ms Samantha Bell was involved in many of Council's dealings with the Bennetts. She gave careful evidence. During cross-examination, she agreed when Bella was seized she showed no aggression and was "a relatively calm dog". Ms Bell was not aware of any reports of aggression over the months Bella was at the animal shelter.

1. According to another dog owner's witness statement, he and Mr Bennett used to be friendly and walk their dogs in the park. They fell out, as the dog owner was critical of Mr Bennett's handling of Bella. The other owner and Mr Bennett make strong accusations about each other. Given the other owner was not available for cross-examination, it would not be fair to place weight on the witness statement he provided.
2. A friend of Mr Bennett's (they met in the park walking dogs) appeared at VCAT to give evidence. He does not regard Bella as a dangerous dog. It is difficult to, and I do not, place weight on his evidence on factual issues given, as he acknowledges, he has significant difficulties with his memory.
3. In letters provided by Mr Bennett, Ms Abbey, a Mr Allen, Ms Bren and Ms Myer, other park users, gave Bella good 'character references'.

1. Last, but very much not least, the Magistrate regarded the attack as uncharacteristic behaviour by Bella. According to the court transcript, the Magistrate had heard favourable character evidence from several regular park attendees speaking very highly of Bella, stating they have never seen any signs of aggression[3].

1. The purposes of the Act are stated in section 1:

The purpose of this Act is to promote animal welfare, the responsible ownership of dogs and cats and the protection of the environment by providing for -

(a) a scheme to protect the community and the environment from feral and nuisance dogs and cats; and

(b) a registration and identification scheme for dogs and cats which recognises and promotes responsible ownership; and

(c) the identification and control of dangerous dogs, menacing dogs and restricted breed dogs; and

1. Section 3 relevantly defines dangerous dog as follows:

(a) a dog which has been declared to be dangerous by a Council under Part 3;

1. Section 3 defines serious injury as follows:

(a) an injury requiring medical or veterinary attention in the nature of -

(iii) a partial or total loss of sensation or function in a part of the body;

1. Section 34, 35, 36, 38, 39, 40 and 41 relevantly provide as follows:

(1) A Council may declare a dog to be a dangerous dog -

(a) if the dog has caused the death of or serious injury to a person or animal by biting or attacking that person or animal; or

(2) The Council must not make a declaration under subsection (1)(a) if the incident occurred -

(a) because the dog was being teased, abused or assaulted; or

(b) in the case of injury to a person, because the person was trespassing on the premises on which the dog was kept; or

(c) in the case of injury to another animal, because the animal was on the premises on which the dog was kept; or

(d) because another person known to the dog was being attacked in front of the dog; or

(e) as part of a hunt in which the dog was taking part and which was conducted in accordance with the Prevention of Cruelty to Animals Act 1986.

(b) cannot be revoked, amended or otherwise altered.

1. Council must give notice of a declaration to owner

(1) If the Council has made a declaration that a dog is dangerous it must serve written notice on the owner of the dog that that declaration has been made.

(a) be served, either in person or by registered post, within 7 days of the making of the declaration; and

(b) give reasons for the making of the declaration.

38 Restraint of dangerous dogs when on owner's premises

(1) When a dangerous dog is kept on residential premises of the owner of the dog, the owner must ensure that -

(a) if the dog is inside any dwelling on the premises, it is confined in such a manner -

(ii) that a person cannot enter the dwelling unless admitted by an occupier of the premises who is of or over 17 years of age; and

(b) there is on the premises, outside any dwelling, a prescribed enclosure; and

(c) when the dog is not inside any dwelling on the premises, the dog is kept in a prescribed enclosure.

(3) In this section prescribed enclosure means an enclosure -

(b) that is constructed in such a manner that a person cannot have access to it without the assistance of an occupier of the premises who is of or over 17 years of age; and

The owner of a dangerous dog must display warning signs which comply with the regulations at all entrances to the premises where the dog is kept warning people that a dangerous dog is kept on the premises.

The owner of a dangerous dog must ensure that at all times the dog wears a collar of the kind prescribed.

41 Restraint of dangerous dogs off the owner's premises

(1) If a dangerous dog is outside the premises of its owner and is not -

(a) muzzled in a manner which is sufficient to prevent it causing injury by biting; and

(b) under the effective control of some person by means of a chain, cord or leash -

the owner of that dangerous dog and any person for the time being in charge of the dog are guilty of an offence and liable to a penalty of not more than 5 penalty units for the first offence and 10 penalty units for a second or subsequent offence.

1. Section 6 of the Domestic Animals Regulations 2005, prescribes the nature of the enclosure required where a single dog declared a dangerous dog must be kept outside. It must have a minimum height and width of 1·8 m, a minimum area of 10 sqm, be fully enclosed with roof and concrete floor and walls of brick, timber, iron and/or wire mesh and have a lockable gate.

1. Mr McDonald for Council submitted VCAT should affirm its decision to declare Bella a dangerous dog under the Act. He submitted, concerning the 15 December 2011 attack, VCAT should not go behind the Magistrates' Court decision. He conceded VCAT may, on the evidence before it, be persuaded that the 17 November 2011 attack had not resulted in serious injury.
2. Concerning the issue of the risk that Bella poses to the public, he submitted that over the relevant times, the Bennett's failed to take full responsibility for Bella's care and control as demonstrated by:
   • (a) at the Magistrates' Court Mr, Bennett promised the magistrate that Bella would be re-homed in the country. This did not happen;
   • (b) at the Council meeting, Victoria Bennett failed to take responsibility;
   • (c) over time, the Bennetts have said that Bella does not live at Michael and Susan Bennetts' home. It transpired during the hearing that at least for some period, Bella was being kept at home for some days of the week. This was said to be because Victoria Bennett had recently started tertiary studies;
   • (d) there is evidence that, the Bennetts may be contravening council bylaws that a homeowner may house no more than two dogs unless given permission by Council to house a higher number; and
   • (e) VCAT should be concerned that Victoria Bennett did not appear at the hearing, in circumstance where there is no medical evidence to support any claim of her experiencing health difficulties.
3. Therefore, VCAT cannot be satisfied that the Bennetts will, without a declaration in place, exercise sufficient care and control of Bella to minimise risk to other animals.

1. Mr Bennett made a range of submissions. I will not set them out as they relate to his denial that Bella was in the park on 15 December, criticism of the execution of the search warrant, Council process in declaring Bella dangerous, Council refusing permission for the Bennett's to keep more than three dogs and concerning a particular park user.
2. The issues I took into account are:
   • (a) evidence as to the significant impact of this dispute on Victoria's health and well being and further impact the continuing declaration of Bella as dangerous would have. I will not expand on this as it would unnecessarily intrude on her privacy;
   • (b) his explanation that at the time he promised the Magistrate that Bella would go to live at Emerald, that appeared feasible. However, it turned out not to be possible because of regulations concerning keeping of pets in that area;
   • (c) until recently, Bella had only occasionally been at their home. Recently, his daughter had commenced tertiary study and needed somewhere to leave the dog on the relevant days;
   • (d) Bella is now muzzled in public and dangerous dog signs have been placed at their home. When at their home, if Bella is in the backyard, she is contained by high fences. There is no evidence before me about how Bella is kept when not at the Michael and Susan Bennet's home. Neither are there any reports of Bella doing harm in other locations.
   • (e) The Bennetts have been long-term dog responsible dog owners, resulting in no trouble until the current disputes.

1. I have found that on 15 December 2011 Bella caused a "serious injury" as defined at section 3 of the Act, to Fynn, inflicting multiple lacerations.
2. Therefore, under section 34(1) it was open to Council and is open to VCAT to declare Bella a dangerous dog. None of the exceptions set out at section 34(2) apply.
3. Council complied with section 35 of the Act, in that it advised at least Ms Victoria Bennett that it proposed that Bella be declared dangerous and invited a submission. Ms Victoria Bennett made a submission and met with Council officers.
4. I therefore turn to the issue of whether by way of discretion I agree with Council's decision.
5. VCAT's discretion to vary Council's decision is created by VCAT having, on review, the same discretions Council had when it made the original decision. The discretion arises as under sections 34(1). If a dog has caused a serious injury, unless the section 34(2) exceptions apply, VCAT may declare the dog a dangerous dog.
6. The Act provides no specific criteria under which to make that decision, apart from stating at section 1, that a purpose of the Act is to promote animal welfare, the responsible ownership of dogs and cats and the protection of the environment by providing for a scheme to protect the community and the environment from feral and nuisance dogs and cats. Also, the structure of the Act provides for declaring dogs dangerous and in less serious situations, declaring dogs menacing.
7. As Macnamara DP said in Feakes v Cardinia SC (general) [2010] VCAT 1436,

The discretion is an open one. High authority tells us that even open discretions have to be exercised by reference to matters that seem appropriately related to the subject matter of the discretion and cannot be exercised on a whim or for matters that are entirely irrelevant.

1. The consequences of declaring a dog to be a dangerous dog are significant, as is set out above.
2. In my view, the question to answer, when exercising the discretion, is whether the dog poses a greater risk to people and animals, compared to other dogs and if so, what measures will sufficiently protect the community. Useful relevant criteria include the;
   • (a) conduct of the owner before the attack;
   • (b) circumstances of the attack;
   • (c) likelihood of the circumstances being repeated and the dog repeating the attack;
   • (d) apparent nature of the dog;
   • (e) conduct of the owner and those around him or her;
   • (f) skill of the owner and those likely to be in charge of the dog in controlling the dog;
   • (g) conduct of the owner since the offending conduct in attempting to minimise future risk;
   • (h) insight of the owner and those likely to be in charge of the dog into future risk posed by the dog; and
   • (i) welfare of the dog's owner and of others affected by the dog behaviour.
3. The above considerations primarily focus on future risk to the community. The objective is to minimise the risk. That risk cannot be reduced to zero, including by a dangerous dog declaration, unless the dog is destroyed.
4. Declaring a dog to be dangerous is not intended to punish. Punishment, specific deterrence (of the individual) and general deterrence (a lesson for the community), concerning a particular event, are achieved via prosecutions at the Magistrates' Court.
5. Parliament did not intend that if a dog causes a serious injury, in all cases it will be declared a dangerous dog. If it did, there would be no discretion available to either Council or to VCAT once the serious injury was proven. This can also be seen by the mandatory consultation process which council must undergo before making a declaration.
6. The considerations must be taken as a whole. An individual consideration is unlikely to decide the matter. For example, a first attack can lead to a declaration (eg. Jones v Boroondara CC (General) [2012] VCAT 709) and offers of undertakings may be accepted (see Feakes) or not (see Butger v Moorabool Shire Council (General) [2011] VCAT 1933.
7. I now address the criteria.

Conduct of the owner before the attack and circumstances of the attack

1. The circumstances of the 17 November attack, as I have found them to be, do not cause a high degree of concern about Susan and Victoria Bennett's conduct on that day. Bella rolling Quincy occurred in an off leash park, where the risk of such incidents is always present. I am satisfied Susan Bennett acted appropriately in checking Quincy immediately after the attack and her and Victoria offering apologies.
2. Concerning the 15 December 2011 attack, the fact that Mr Bennett was found guilty of not exercising effective control of Bella in the park is of course cause for concern. The attack on Fynn was unprovoked and serious in terms of injuries caused to Fynn and the traumatic experience for Fynn's owner.
3. I note the statement from Fynn's owner, "This not the first time this dog has harassed other animals and the owner does not seem to be taking any responsibility for the dog or its behaviour."

1. I am not persuaded there is a significant likelihood of the circumstances that gave rise to the 17 December attack being repeated. There is no evidence before me that Bella has similarly attacked a dog, either before or after the attack, which is now some 16 months ago.

1. The evidence does not persuade me Bella is an aggressive dog. I note the favourable risk assessment provided by Mr Griggs and character references provided by Mr Bennett. I also note various statements that people who use the park are concerned about the lack of control exercised over Bella.
2. I also note the Magistrate's comment about Bella's uncharacteristic behaviour in attacking Fynn.

Insight of the owner and those likely to be in charge of the dog into future risk posed by the dog

1. Concerning the Bennetts' skill in handling Bella, I note Mr Griggs' recommendation that further training is required. He notes that Bella is quite trainable. However, there is no evidence before me that such training has been undertaken.
2. Mr Bennett has been punished for his failure to control Bella on 15 December 2011. While he protests his innocence, surely he and others who walk Bella are now at least alert to a number of peoples' perception that she is a risk to other dogs. In closing submissions, Mr Bennett said Bella is now muzzled when walked.

1. The Bennetts' conduct has not assisted. Judging from letters from the Bennetts to Council, transcript of the Council meeting discussing the potential declaring of Bella as a dangerous dog and the nature of correspondence to VCAT, they have been overly assertive and combative. That said, Michael and Susan Bennett conducted the hearing before me appropriately.
2. It is convenient to comment here that Council's local laws officers appear to have acted professionally and properly during their dealings with the Bennetts.
3. It is most concerning that Mr Bennett told the Magistrate that Bella would be rehoused on a country property. This was in the circumstances were the Magistrate was considering a submission that Bella be destroyed. While there may be explanations, the fact remains that the promise was not kept.

Welfare of the dog's owner and of others effected by the dog's behaviour

1. While less important than the primary issue of the need to protect the public, in my view the effect on the health and well-being of a dog's owner and those closely associated with the dog is relevant. I accept that Michael and Susan Bennett are very concerned for the health and well-being of their daughter, should VCAT affirm Council's decision that Bella be declared dangerous. She has previously moved between friends' houses outside the council's jurisdiction to, as she sees it, protect Bella. They fear she may adopt a similar strategy to her detriment.

1. If it were open to me, I would simply order that whenever in public, Bella be muzzled and leashed and impose no other restrictions. In my view that would be in the public interest.
2. However, the Domestic Animals Act does not give me that option. Under the Act, either Bella is to be subject to the full range of restrictions that follow being declared a dangerous dog or she is not.
3. Given I have those two choices, I conclude:
   • (a) focusing on protection of other dogs;
   • (b) given the apparently low risk of future attack;
   • (c) given the deterrent effect of the Magistrates' Court decision;
   • (d) given the significant restrictions that apply to keeping a dog declared dangerous; and
   • (e) given the likely adverse effects on Victoria Bennett;

the correct and preferable decision is to set aside the Council's declaration of Bella as a dangerous dog.

1. However, I strongly urge the Bennetts to muzzle and leash Bella at all times when she is in public including in off-leash public parks. While the risk is small, it exists.
2. Turning to the (in my view unlikely) worst case scenario, if Bella were to once again attack a dog, it could be badly injured or killed. If Bella was not then destroyed she would very likely be declared a dangerous dog. If a prosecution were bought against any of the Bennetts, the relevant history could result in severe sanctions.
3. Finally, these orders do not resolve the issue that the Bennetts may be in breach of the 'two dog limit' for the number of dogs a home owner may keep without permission, which Council has refused. That issue cannot be resolved in this proceeding. The Bennetts need to ensure they comply with the law.

[1] Notice of order made in Case number C10426193 on 17 November 2012.

[2] Report of Dr Jeremy Jones, Veterinarian, 22 December 2011.

[3] Pg 27 - This is the substance of part or Mr Bennett's lawyer's submission toward the end of the Magistrates' Court hearing, which according to the transcript, Councils lawyer did not object to.