CITATION: Duffy v Circular Head Council [2014] TASMC 15

Animals - Various statutory provisions - Regulation of companion animals - Declaration of dangerous dog under Dog Control Act 2000 - Nature of discretion.

Dog Control Act 2000 (Tas), ss 29, 31.

Stewart v Heath [2012] TASMC 27; Ayton v Turner [2010] TASMC 17.

Decision Number: [2014] TASMC 15

1. "Brew" is an American Bulldog owned by the appellant, Mr Duffy. By notice dated 19 December 2013, the General Manager of the respondent declared Brew to be a dangerous dog, pursuant to s 29, Dog Control Act. He did so on the basis that there is reasonable cause to believe that Brew is likely to cause serious injury to a person or another animal.
2. Mr Duffy has now appealed against that declaration pursuant to s 31 of the Act. There is no question that he is an owner of the dog, and, accordingly, is entitled to appeal pursuant to that provision. In Ayton v Turner [2010] TASMC 17, I considered the nature and basis of such an appeal. I adopt that analysis and note in particular:

(a) The appeal is conducted as an original proceeding to be determined by me upon the evidence called before me, in accordance with the provisions of the Act, in particular those contained in s 29;

(b) A declaration under s 29(1) should only be made after consideration of a two-step process, namely:

(i) Does one or the other, or both of the preconditions set out in s 29 (1) exist? In this case the contention of the respondent on the appeal is consistent with the basis for the declaration set out in the notice i.e., the precondition set out in s 29(1)(ii) that:

There is reasonable cause to believe that the dog is likely to cause serious injury to a person or another animal.

(ii) If so, should the declaration be made in the exercise of discretion? That discretion must be exercised judicially. In relation to the matters that might be relevant to the exercise of that discretion, I refer to, and respectfully adopt the analysis of Magistrate McTaggart in Stewart v Heath [2012] TASMC 27 at [43] and [44].

1. Brew is one of a number of dogs owned by Mr Duffy and Ms Taylor. Mr Duffy gave evidence that he has owned Brew since he was 10 months old which, given that Brew is said to have been born in about April 2009, would mean that he has been owned by Mr Duffy since early 2010. After moving to Tasmania, Mr Duffy also acquired a female American Bull Terrier called "Sparks". Sparks and Brew had pups, one of whom is a male American Bull Terrier known as "Bandit".
2. Council's interaction with Mr Duffy and Ms Taylor seems to have commenced in about June 2013. At that time the owners were camping at the Montagu Park Camping Ground. They had five dogs in their possession, including Brew, Sparks and Bandit. Correspondence in June 2013 suggests that the five dogs were impounded at that time, as they were not correctly registered under the Dog Control Act. Brew was then registered on 12 June 2013, when he was returned to Mr Duffy and Ms Taylor.
3. On 1 August 2013, Council wrote to the owners noting concerns around the dogs being kept in the camping ground, which Council asserted to be a public place. The Council file reveals complaints, including from a Parks and Wildlife Officer, which related particularly to barking.
4. At about the time this letter was sent, Mr Jason Jordan commenced work as a contracted animal control officer with Council. He was made aware of the circumstances of Mr Duffy and Ms Taylor and their dogs shortly afterwards.
5. Mr Duffy's evidence is that after his dogs were impounded in June 2013, they were kept in kennels. He implied that they were mistreated. He noted that when they were returned to him some had burst blood vessels and were urinating blood. In any event, shortly after the August letter, he and Ms Taylor were able to secure a rented property at 1410 Arthur River Road, Arthur River. They moved there with their three children and five dogs.
6. On 1 October 2013, Council wrote to them asserting that they required a licence to keep more than two domestic dogs over the age of six months on the property. The letter sought their co-operation in complying with the requirements of the Dog Control Act.
7. When no response was received to this letter, and attempts to follow it up by telephone proved fruitless, Mr Jordan, on 10 December 2013, went to the premises at Arthur River. This was his first visit to the property and his first contact with Brew and the other dogs. No-one was home but four of the dogs were chained up in different locations on the property. A fifth dog was located within the house. Mr Jordan went onto the property to observe the dogs. He noted that the property was not fenced, was located adjacent to the local public shop and opposite a camp ground and a Parks and Wildlife Reserve. Each of the dogs reacted aggressively when he entered the property, pulling on the chain, raising itself on its hind legs and attempting to lunge at him. Each was growling, barking and showing its teeth. He formed the view that each of the dogs, including Brew, would attack him were it not for restraint by chain. He remained on the property observing the dogs for about 40 minutes. At one stage, he observed a woman and a child walking along the footpath in front of the property. The dogs, which had calmed by then, acted aggressively towards the woman and the child, notwithstanding that they were walking on the public footpath. The dogs also acted in a similar way when a vehicle parked at the camping ground across the road. The occupants, who had taken out a picnic, shortly after packed up and left the area.
8. On 13 December 2013, Mr Jordan, acting privately, agreed to take Brew and Bandit to kennel accommodation, to give Mr Duffy more time to arrange permanent alternative accommodation for some of his dogs, so as to bring himself into compliance with the Dog Control Act. Mr Duffy and Mr Jordan took the dogs in Mr Jordan's vehicle to the Flowerdale Pet Resort, a facility operated by Ms Kim Taylor. There is some dispute in respect of the conversation between Mr Duffy and Ms Taylor when the dogs were left there, but I am satisfied that at the very least, Mr Duffy warned Ms Taylor that the dogs should not be let out together because they were inclined to fight.
9. Ms Taylor gave evidence. She is a qualified and experienced veterinary nurse. She has experience in dealing with animals, dogs in particular. It was clear to me, and I accept that she has considerable expertise in relation to the management of dogs.
10. When the dogs first arrived, Ms Taylor was surprised to see that both were entire males. On the day after they arrived, she supervised their exercise in the morning. At about 3.00pm, she took Brew into an exercise area for a second exercise session. When Brew was in the exercise area, she then brought Bandit into an adjacent exercise area. The two areas were separated by a fence, four feet in height.
11. Within a few minutes of Bandit's arrival, Ms Taylor was kneeling beside him in the exercise area, scratching his belly. In her statutory declaration, consistent with her oral evidence, she described what happened next:

"Bandit suddenly jerked upright looking past me, and as I turned my head to see what he was looking at, Brew hit me in the head with enough force to break one of my teeth as my jaw was slammed together. Brew had cleared the dividing fence without a sound and proceeded to savagely attack Bandit, and all attempts to separate them failed...I picked up a long handled shovel, and as Brew was so intent on keeping his jaws clamped on Bandit, I took the opportunity to shove the handle under Brew's chain collar, grabbed the end of the handle and twisted it until his oxygen was cut off. He finally released Bandit, who crawled away and then got to his feet and ran for the gate up to the kennels."

1. In evidence, Ms Taylor confirmed that she had had no warning that Brew had cleared the fence and was coming to attack Bandit. He did not bark or make any other sound before or as he made the attack. She observed that Brew clamped his jaws around Bandit's throat. Although she was injured by Brew when he collided with her in his effort to attack Bandit, she was not directly attacked by him.
2. Ms Taylor formed the view that if she had not intervened as described above, Brew would have killed Bandit. After the attack, she attended to Bandit's injuries. She observed a clear puncture wound. Bandit was not seriously injured, but only because the puncture wound had missed major blood vessels.
3. Ms Taylor formed the view that Brew is a danger to other dogs, although she does not consider him to be dangerous to humans. In her opinion, he displays no sign of obedience training and does not appear to be properly socialised.
4. Ms Taylor rejected Mr Duffy's suggestion that she had other female dogs in the area which may have accounted for Brew acting as he did. She rejected also that she had somehow contributed to Brew's conduct by having both dogs out together. She had never witnessed a dog jump over the fence before. Following this incident, she has replaced that fence with a much higher fence.
5. In respect of the incident in question, I was impressed by Ms Taylor's evidence and accept it. I will proceed on the basis that the incident and surrounding circumstances occurred as she has described.
6. Mr Jordan came and collected Brew and Bandit after the incident. He placed them into his vehicle by use of a dog pole. Although he did not feel threatened by Brew, he believed that he did not have full control of Brew as he took him to the truck, largely because of Brew's strength and size. Brew has been kept at the council pound since this incident. He has not demonstrated any significant aggression during his time there.
7. Mr Jordan expressed the opinion that as Brew has attacked another dog once, he is likely to attack again. Mr Jordan believes that, having regard to Brew's power and strength, he is a danger to other dogs. In cross-examination, Mr Duffy challenged Mr Jordan's opinion about the danger Brew poses to other animals on the basis that Brew has associated freely with his children and with small animals, such as rabbits and chickens, without showing any aggression or attacking them. Mr Jordan made the point that whilst Brew might be controlled by Mr Duffy in his presence, the danger exists when Brew is not under Mr Duffy's direct control.
8. The Council also adduced evidence from a veterinary surgeon, Dr Craig Dwyer. Dr Dwyer observed Brew at the Circular Head Council pound building on 4 February 2014. Dr Dwyer expressed a similar opinion to Mr Jordan in that given that Brew has attacked a dog once, there is no guarantee given the same or similar conditions that they may not behave in this manner again. He considered that Brew did not display a high level of training or socialisation. He took into account Brew's strength and size, and concluded that if he attacked a person or an animal, he could cause serious injury.
9. I was particularly impressed with the evidence of Mr Jordan. He is clearly a person with considerable experience with animals, and dogs in particular. He also impressed me with his empathy, both for the dog in question and its owners. His assessment of Brew's character, and his concerns about Brew's propensity to attack another animal, and perhaps a human, was delivered in a balanced and reasoned way, and clearly based on his own experience with animals. I note also that his opinion in this regard was largely consistent with the opinion expressed by Dr Dwyer and Ms Kim Taylor.
10. Mr Duffy and his partner Ms Kathleen Turner, both gave evidence. It is clear that they both have great affection for Brew. They described in detail their knowledge of Brew, and described his non-aggressive and friendly nature. They gave many anecdotal descriptions of his interaction with children, small animals and other dogs, and confirmed that they had never witnessed any example of Brew displaying aggression, nor any conduct which would suggest that he was a danger to other persons or animals. Mr Duffy agreed that their property is adjacent to a store, frequented by the public, and that it is unfenced. Given their knowledge of the history of Brew, they dispute that he is a dog that is likely to cause serious injury to a person or another animal.
11. Having regard to all of the evidence, I am satisfied that there is reasonable cause to believe that Brew is likely to cause serious injury to a person or another animal. That reasonable cause arises from the following:

(a) I accept the opinion of the three witnesses called by the Council as described above. All have significant expertise, and expressed considered and balanced opinions;

(b) I accept Ms Kim Taylor's evidence concerning Brew's attack on Bandit. Whilst he did not actually cause serious injury, it is clear that he was intent on doing so, and had he punctured an artery or significant blood vessel during the attack, may well have caused serious injury or even death. It is also concerning that this attack took place despite the presence of a human, and that he used his strength and mobility to force his way past the human on his way to attack Bandit. He only desisted after Ms Taylor had applied a choking force around his neck, and even then persisted with the attack for some time. He directed his attack at Bandit's throat from the outset. The attack was particularly aggressive and focussed, and I note in this regard, that he did not bark or make a sound prior to the attack;

(c) Although Mr Duffy spent some considerable time in the hearing focussing on why Brew may have acted in this way, it seems to me that that issue is of little relevance to this determination. In my view, it is impossible to determine what factors induced Brew to undertake this attack. The concern expressed by Dr Dwyer and Mr Jordan is that if such factors, or similar factors were present again, then there is a probability that Brew would act in the same way;

(d) I am not satisfied that Brew's propensity to attack would be limited to another dog. Mr Jordan was of the view that had Brew not been restrained by a chain on 10 December 2013, he would have attacked him. It seems that he demonstrated similar aggression towards the woman and the child walking along the footpath, and the people picnicking across the road. Whilst it may be the case that Brew was simply defending his immediate territory from perceived intruders, it is impossible to conclude that Brew would be capable of respecting the notional boundary between the property and public areas. I have no doubt that Mr Duffy and Ms Kathleen Taylor have truthfully described their experience of Brew in the past. However, the reality is that that experience is limited to times when Brew has been in their presence and under their supervision. I accept Mr Jordan's point that whilst Brew's behaviour may be controllable in those circumstances, his aggression and propensity to attack may well manifest when they are not present. Mr Jordan's experience on 10 December 2013 supports this conclusion; and

(e) I accept also the evidence of Dr Dwyer and Mr Jordan to the effect that any attack by Brew, given his strength and power, would be likely to have devastating consequences to his target. I have no doubt that Brew would be capable of causing the death of another animal, or even a child. He would certainly be capable of causing serious injury to any other being, animal or human.

1. Having determined that one of the preconditions in s 29(1) has been made out, I must now determine whether or not to exercise my discretion to make the declaration. Clearly the circumstances described above, and the reasons for which I have found Brew likely to cause serious injury to another person or animal, are cogent factors in respect of the exercise of discretion. I also take into account the following:

(a) The circumstances in which Brew, and the other dogs, are housed by Mr Duffy and Ms Taylor are clearly deficient. The property is unfenced; it is adjacent to public areas including a shop frequented by the public, and a public camping and recreation area. It is clear that from time to time, Brew is left on the property without human supervision. I do not consider chaining Brew to be an appropriate or effective method of obviating the risk posed by his propensity to attack. Mistakes can happen and if Brew were to escape this restraint, the results in the event of an attack could be catastrophic;

(b) I am not satisfied that either Mr Duffy or Ms Taylor has appropriate and adequate insight into the danger posed by Brew. This is understandable; he is a member of their family and their own personal experience of him has been benign. However, it is this experience and their refusal to contemplate the reality of danger posed by his conduct on 13 December, or at other times in their absence, which suggests that the declaration is necessary. I cannot be satisfied that they would take the steps and measures necessary to ensure that Brew is appropriately restrained, and any resulting danger is sufficiently obviated, because they do not believe that such danger exists. I have found to the contrary. It follows that the protective mechanism referred to in s 29 is appropriate in the circumstances; and