1. This is an application to review a decision of the respondent which decision declared two dogs owned by the applicant to be dangerous dogs pursuant to the Domestic and Feral Animals Act 1994 (the Act). The two dogs involved are named Hurricane and Cayenne and they are both Staffordshire Bull Terriers. They were and are housed at No. 5 Hogan Road, Ballan.
2. On 17th February 2011 both dogs escaped from the premises in which they lived and which premises are owned or occupied by the applicant and her husband. The dogs entered the premises of Dr Kowarsky who lives at No. 1 Hogan Road and there began to menace five Guinea Fowls. As a result of such menacing four of those fowls were killed by the dogs and the fifth one was injured. It is conceded by the applicant that it was her two dogs, Hurricane and Cayenne that in fact killed and injured the Guinea Fowls to which I have referred.
3. At the time of the incident the applicant's premises at No. 5 Hogan Road had a very large fence. I think it is unlikely that the dogs would have been able to jump over that fence. In my view it is more likely than not that the dogs escaped through an open gate. The question was attempted to be answered by the applicant as to why the gate was open? The applicant proffered an explanation that a man named Joe who mowed their lawn on the day before the menacing attack, that is 16th February, was asked to come back and give a quote for laying concrete. She stated that in her view it was likely that this man Joe, came back on the 17th to prepare a quote and let the dogs out by leaving the gate open. However, there were two attempts to find Joe and apparently those attempts were not successful so he was not called to give evidence. However the applicant gave evidence that she left home at 6.30 am in the morning of 17th February. When she left home the gates were all shut. She gave evidence that her husband left home after her, however there has been no evidence given by the applicant's husband or no explanation as to why he did not give any evidence. One would have expected that if the gates were shut when the husband left home or he had checked to see that the gates were shut he would have given such evidence, however no evidence was given. As a result I infer from Jones v Dunkel (1959) 101 CLR 298 and O'Donnell v Reichardt [1975] VicRp 89; (1975) VR 916 that the applicant's husband's evidence would not have assisted the applicant's case.
4. The applicant also stated that the two dogs Hurricane and Cayenne were very good with children and her nieces and nephews frequently played with the dogs and they did not harm the children. She stated that on one occasion a magpie that was flying past was harmed by the dogs.
5. It is noted that at the time Hurricane and Cayenne were declared dangerous dogs the declaration was not opposed by the applicant, however she said at that time she was under enormous pressure and it was only later that she was able to discern a serious affect that the declaration had on her dogs. By that she said the affect was that it made her dogs very upset having to be muzzled when they were taken out. Indeed Ms Kinghorn who breeds dogs and schools dogs said that it can cause depression in dogs having to wear a muzzle but on occasions that depression can be ameliorated by the dog becoming used to wearing the muzzle.
6. It is also noted that since the attack on 17th February the applicant has spent approximately $20,000 on improving the gates and the pens where the dogs are now kept. I am informed that the property at No. 5 Hogan Road now has all the requirements that would be required if the dogs were declared dangerous dogs pursuant to Section 34 of the Act. I have been offered an undertaking which I have been informed the applicant and her husband Toby Bugter would be able to give. That undertaking reads as follows:
   1. Hurricane and Cayenne (Dogs) are to be kept in the secure locked dog pen or inside the house at their home at 5 Hogan Road Ballan (or an address to be notified to Council) when Toby and Jessica Bugter (their owners) are not present.
   2. The Dogs are to be kept behind a padlocked area surrounded by fencing of at least 1.8m, at all times when their owners are present at 5 Hogan Road Ballan (or an address to be notified to Council).
   3. The Dogs will be kept on a leash at all times when leaving 5 Hogan Road Ballan, save for:
      1. the purpose of socialisation with other dogs in designated off-leash areas with perimeter fencing;
      2. the purpose of visiting family where they will be kept indoors or behind secure fencing.
7. Ms Kinghorn who I have referred to before has said that she has given these dogs courses in socialisation and also obedience and in her view that would help the situation from the dogs attacking again. However, she did say that she is aware of circumstances surrounding both Hurricane and Cayenne being declared dangerous dogs. She also stated that in her study of dogs that they were omnivores therefore often predating on small animals including birds. Due to the predatory basis of the dogs she believed Hurricane and Cayenne should not be declared dangerous dogs. I do not understand that comment because if it is natural for the dogs to be predators I would find it more likely that they should be declared dangerous dogs. She further said a dog will innately show a predatory response when presented with prey or prey-like stimulus. This innate behaviour is not learned, it is a natural response that is inherited generally. She then went on to distinguish between those dogs that are wild and those dogs that are schooled and makes the point that the dogs that are schooled are less likely to be predatory than those that are not. The penultimate paragraph of her report in the last sentence it is stated:

It would not be out of character for a Staffordshire Bull Terrier along with all 29 ANKC recognised Terrier breads to catch and kill small animals including rodents and birds.

1. Ms Kinghorn also said that she thought that if the dog was on the leash a normal person would be able to restrain the dog(s).
2. I was cited by Ms Hodgson, counsel for the applicant a decision of Peakes v Cardinia Shire Council [2010] VCAT 1436. That was a decision of Deputy President Macnamara. In that case, the owner was taking his dog for a walk. It escaped the lead and killed a cat. The Deputy President accepted an undertaking from the owners of the dog and refused to declare the dog dangerous. He correctly said that Section 34 gives the Tribunal a discretion in matters such as this and made it clear that the discretion cannot be exercised on a whim or for matters that are entirely irrelevant. He stated in that case that there was a distinction between what happened in Peakes' case and other cases where there had been multiple incidents. In Peakes' case there was not a multiple incident and he also correctly said that if a dog killed a rat or a rodent or a mouse it would not be declared a dangerous dog. However the situation in Peakes' case is somewhat different to the present. In that particular case part of the undertaking taken by the Deputy President was that the dog needed to be muzzled with a harness when out of the premises. In this particular case it is the muzzling part of the declaration of dangerous dogs that the applicant mainly objects to, that in itself is a difference. Also the Deputy President referred to the fact that the dog in that case killing the cat was an isolated incident. In this particular instance one can say that there were five guinea fowls affected not one and also it is clear that there was an incident at some time prior to 17th February when one or other of these dogs injured or killed a magpie. That was referred to by the applicant.
3. The other difference in Peakes' case is that no argument was put to the Deputy President about whether it was appropriate considering the Domestic Animals Act to take an undertaking rather than declaring the dogs dangerous. Ms Shedden for the respondent has referred me to an argument that the declaration relates to the dogs and not the owner. She has correctly stated that if an undertaking was given and the dogs were sold or move to another council area, there would be no way of enforcing the undertaking. Put a different way if an undertaking is broken it is the respondent who would have to ask the Tribunal to find the applicant guilty of contempt in breach of an undertaking. There is no other practical way of enforcing the undertaking. However a declaration under pursuant to Section 34 of the Domestic Animals Act is registered in a State body and it is able to be known by other councils and if the dog is sold or moved, the declaration would follow the dog. I referred both counsel to an oral decision of mine which I was told by Ms Shedden was Bean v Boroondara Shire Council which decision was given approximately two months ago where I accepted the argument that if all other matters were equal an undertaking was an inadequate remedy in relation to a Section 34 matter. I found that on the basis that the undertaking is given by the owners of the dogs and does not necessarily follow the dog. I also accept the fact that it is made clear in the objects of the Act that it is a scheme to protect the community and the environment from feral and nuisance dogs and cats and the identification of the dog controls dangerous dogs and menacing dogs in restricted dog breeds. I accept the fact that this Tribunal has a discretion in relation to declaring dangerous dogs but in my view this is not an appropriate case to exercise that discretion. Section 34(1)(a) states:

(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;

1. In this particular instance these two dogs have managed to escape from the premises where they live, enter premises of a neighbour and kill four guinea fowls and injure another. I consider this to be a very serious attack. I am not satisfied that just by caging these dogs in a manner that is required by the Act would be sufficient protection for the community of the people of Victoria. That is because the dogs could be moved or alternatively they could be sold. I appreciate Ms Hodgson's suggestion that the applicants are unlikely to sell their dogs but one does not know the future. In my view taking these dogs out of their home without a muzzle can and would be likely to provide a danger to other animals particularly in a semi-rural area such as Ballan.
2. Ms Kinghorn did not give evidence as an expert although she has spent a considerable time dealing with dogs. She said it was unlikely that the dogs would attack an animal. However she said another animal passing in front of these dogs could be seen by them as prey and their natural instincts would be likely to cut in. I am concerned about that.
3. Given these circumstances I will affirm the decision of the respondent.