Feakes v Cardinia SC (General) [2010] VCAT 1436

Upon the applicant undertaking by his counsel that on all occasions when his dog Rex is abroad and outside the premises of the applicant's residence he (Rex) will be restrained by a leash including a harness extending to his two front legs and muzzled, the respondent's determination made 8 June 2010 is set aside.

1. On 22 April this year Mr Feakes was walking his dog Rex who is a Staffordshire Mastiff Cross. According to Mr Feakes, Rex whilst sniffing through a nature strip encountered a cat. Mr Feakes says the cat scratched Rex's nose. Whatever happened Rex managed by moving backwards to free himself of the collar which he was wearing and which was attached to a lead held by Mr Feakes. He chased the cat across the road and onto a private property which turned out to be the residence of Mr Davies who owned the cat, Louey.
2. Mr Feakes says he did not witness exactly what happened thereafter because the animals were out of his sight and behind a car parked on Mr Davies' property. Mr Davies says that Rex picked up Louey, bit him, shook him and then mauled him. The cat died. As a result of this incident proceedings were taken under the Domestic Animals Act 1994 and Mr Feakes as owner of Rex pleaded guilty to charges under Section 29(3) and 10(1) of the Domestic Animals Act 1994. He was ordered to pay a fine and certain pound fees to the Cardinia Shire Council, the local municipal authority in the sum of $484.00.
3. The Council then considered what further action should be taken under civil law, specifically under the Domestic Animals Act 1994. Ultimately, by a notice dated 8 June 2010 Council through the agency of its senior local laws officer, Ms Ranken declared Rex to be a dangerous dog pursuant to Section 34 of the Domestic Animals Act 1994. Pursuant to Section 98(2) of the Domestic Animals Act 1994 Mr Feakes seeks a review of that determination from the Tribunal. It is axiomatic in such circumstances to note that the Tribunal is exercising powers under Section 50 and 51 of the Victorian Civil and Administrative Tribunal Act 1998. It is long established by authorities of the highest standing that when conducting such a merits review in accordance with what I might describe as the 'Kerr' model, advocated by a committee of enquiry headed by the late Sir John Kerr in the early 1970s and embodied originally in the Commonwealth Administrative Appeals Tribunal Act 1975 that the duty of the Tribunal is to reach the correct or preferable decision on the evidence before it rather than to investigate the propriety or the appropriateness of the decision process implemented by the primary decision maker. The phrase 'correct or preferable decision' is derived from the judgment of the Full Federal Court of Australia in Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577.
4. It is worth noting these fairly basic propositions because Ms Ranken, the officer of the Council who made the declaration under sub-delegated authority, was cross-examined at some length on the process issues as to Council's decision making. Ultimately I believe all those matters should be set to one side and attention should be concentrated on the underlying merits.
5. Section 51 of the Victorian Civil and Administrative Tribunal Act 1998 provides that in carrying out a review the Tribunal has all the powers and functions of the initial decision maker. This has often been said to entail the Tribunal 'standing in the shoes' of the original decision maker and re-making the decision. That analogy is correct so far as it goes; but it is necessary to note that in carrying out the process the Tribunal also has additional powers as granted to it by the Victorian Civil and Administrative Tribunal Act and any other relevant statute, authority for instance to hear evidence on oath, to summon witnesses and control the production of documents and so forth, powers which initial decision makers such as the respondent Council in this case do not have. The effect then is that the Tribunal has all the powers of Council and more.
6. Section 34 of the Domestic Animals Act 1994 is the provision which authorises the making of the declaration and the power which Council exercised. Sub-section (1) 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. Sub-section (2) includes a number of exclusions such as circumstances where a dog is being teased or abused when it is involved in a hunt carried out in accordance with the provisions of the Prevention of Cruelty to Animals Act 1986 and the like. None of these matters is relevant here. Sub-section (4) provides that a declaration under the section has effect throughout Victoria and cannot be revoked, amended or otherwise altered. The effect then is that apart from granting the discretion in certain particular circumstances, the Act gives no specific guidance as to the considerations which should guide the Council in considering whether to declare or not to declare or the Tribunal on review. 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 whim or for matters that are entirely irrelevant.
2. We might consider a number of matters which are immediately relevant. They would be that the case for declaring a dog to be a dangerous dog would be much the stronger in the case of multiple incidents rather than a single incident. It would be much the stronger in the case of death or serious injury to a human person rather than an animal and the word 'animal' is not defined in the Act, presumably there would be no question of a dog being declared a dangerous dog if for instance it killed a rat or a mouse. Indeed a dog which did such a thing might be regarded as performing a duty that was to the advantage of society.
3. We turn then to a consideration of the particular circumstances which are before me and the matters which appear to be specifically relevant. Ms Shedden who appears for Cardinia to defend and support Cardinia's determination says it is important to note that on the narrative given, Rex was simply beyond the control of Mr Feakes. Mr Feakes' evidence and for present purposes Ms Shedden was willing to accept it, is that he was doing his best to try and bring the dog under control, without success. If however a different view were taken Ms Shedden said and Mr Feakes was shown to be careless or lacking in endeavour in attempting to control the dog then I suppose it would be an argument in favour of making the declaration that this particular dog does not have the advantage of a responsible or energetic owner who could keep him in control. Whichever way one looks at it said Ms Shedden, these circumstances points strongly in favour of making the declaration.
4. Ms Crafti on behalf of Mr Feakes has filed and relied upon a variety of testimonials from those who have dealt with Rex and described him as a gentle and friendly. She notes also that there is no evidence before me that Rex has been involved in any other incident of the type we are now considering. The evidence is that he is seven years of age and the fact that he has until now avoided the sort of difficulties which he and his owner now face is to some degree supportive of the view that this incident was an incident which was out of character.
5. It is also relevant I think, and something which as a Tribunal Member authorised by the Victorian Civil and Administrative Tribunal Act 1998 to inform myself in such manner as I see fit that I can notice without evidence, that the hostility between dogs and cats is proverbial. The two species seem to be natural enemies one of another and it is a matter of folklore, legend, popular song and poetry. All of us have seen incidents where dogs have chased cats; but typically the cat is able to make its escape up a tree or up a paling fence and out of reach of the dog. Tragically that did not occur on the present occasion; however I think it is relevant to note that Rex in this case was displaying a characteristic which is typically inherent in all dogs, that is hostility to cats.
6. Ms Crafti on behalf of Mr Feakes submits that dealing with this regrettable incident which so far as we can see is an isolated one, the appropriate course is to consider accepting undertakings from Mr Feakes as to how Rex should be dealt with in future. She tendered a number of undertakings as to the use of more effective leads, muzzling, better fencing Rex's home property and the like. She submits however that the requirements which would become effective in the event that the Dangerous Dog Declaration is not set aside are onerous and inappropriate. These include the requirement that whilst Rex is at home and not within the residence he would have to be confined in some form of enclosure, the features of which are the subject of extensive prescription in the relevant regulations. Ms Ranken giving evidence for Council as to her consideration of the significance of this matter, stresses that the regulation stipulates certain minimum dimensions and it would be open to Mr Feakes to construct an enclosure which was less like a single cage and was far more extensive and less restrictive than a single cage which would be the minimum type of enclosure as stipulated by the relevant regulations.
7. Ms Crafti concludes that the appropriate way of responding to this tragic event is not to impose, and she submits onerous obligations to which reference has just been made but rather to accept undertakings from Mr Feakes as to the other matters.
8. Ms Shedden on behalf of Council contends that such a regime is simply not open. Ms Ranken when these matters were canvassed with her in cross-examination noted that the regulatory regime laid down for dangerous dogs is a statutory and certain one and any promises or undertakings which might have been proffered to Council by Mr Feakes would have no statutory standing at all and therefore could not be a proper assurance of the safety of the public and the environment in future. Ms Shedden submits the same is true at the Tribunal level. For her part Ms Crafti relied upon Section 130 of the Victorian Civil and Administrative Tribunal Act 1998. That provision which is to be found amongst the Tribunal's miscellaneous powers near the end of the Act is as follows:

(1) A power of the Tribunal to make an order or other decision includes a power to make the order or decision subject to any conditions or further orders that the Tribunal thinks fit.

(c) a condition or order that a party give notice of the proceeding, order or decision to any person specified by the Tribunal;

(d) a condition or order that a person give an undertaking to the Tribunal;

(e) a condition or order necessary or desirable to give effect to an order or other decision.

1. Ms Crafti submitted that in accordance with the rules which have been established as applying in Court, if her client gave an undertaking to the Tribunal as a condition of the favourable determination, breach of that undertaking would constitute a punishable contempt. Ms Shedden said that if it was contemplated that a regime of undertakings would be appropriate in the context of animals being declared dangerous or not, that regime would have been incorporated in the Domestic Animals Act 1994. The fact that no such regime is to be found there implicitly excludes any consideration of such a disposition in a context such as the present. What then is the appropriate disposition?
2. Most of the matters to which I have made reference tend to point away from the exercise of a discretion to declare Rex a dangerous dog. The victim was an animal and not a person. The victim was an animal forming part of a species in relation to which dogs have an inherent hostility. The incident was, so far as can be seen, an isolated one and Rex had had so far as we can see a trouble free life until the relatively mature age of seven years. On the other hand the incident was a quite horrifying one and no doubt especially horrifying for Mr Davies, the owner of the cat who witnessed the cruel end which his pet met. True it is that there are statutes under which this Tribunal exercises review jurisdiction that do themselves include quite elaborate regimes of conditions. The most obvious example is the Planning and Environment Act 1987. Conditions are a very important part of planning permits and there are extensive legislative provisions in that Act regulating conditions. We find nothing of the sort in the Domestic Animals Act 1994; nevertheless the effect of giving a review entitlement to an owner in these circumstances is to bring this matter to the Tribunal which by virtue of Section 130 does have power to make conditional determinations. To turn back to what I said about the nature of the Tribunal's powers on review, it has all the powers of the initial decision maker and more.
3. Accordingly I think an appropriate outcome in the present circumstances is that the determination of Council to declare Rex a dangerous dog be set aside on condition that Mr Feakes gives undertakings that whilst Rex is abroad he will be restrained by an effective leash which would include not only a collar but also a harness which will go around his front legs. The use of such a harness would preclude the risk of Rex pulling his head out of the collar backwards as he did on this occasion. Secondly, he would be required to undertake that Rex wear a muzzle whilst abroad and outside his property. [These measures would prevent any repetition of the incident which occurred on 22 April.] Since no particular criticisms have been made as to the security measures relative to Mr Feakes' residence as an effective location to house Rex and keep him from running abroad, I do no regard it as necessary to exact any undertakings in that regard.