1. Prior to re-assessment of the dog, evidence was given by Mr Forward and Ms Bugeja on behalf of the respondent and by Dr John Ayerbe, a veterinary surgeon, on behalf of the applicant.
2. Following the re-assessment, evidence was given by all three witnesses.

1. A succinct exposition of the Old Standard is stated by Garde J sitting as President of this Tribunal in Gray v Brimbank CC[1] at paragraphs 8- 12.

1. At paragraphs 13 to 34 of Gray, his Honour sets out how the New Standard differs from the Old Standard and its construction together with commentary on the DEPI Guide to the New Standard.
2. I adopt paragraphs 8 to 32 of His Honour's decision in Gray.

1. The burden of proof of each criterion set out in the New Standard rests with the respondent.
2. The standard of proof is that set out in Briginshaw v Briginshaw[2].
3. In Karakatsanis v Racing Victoria Limited[3] the Court of Appeal approved a formulation of the Briginshaw text as it applied to Tribunals in the following terms derived from Greyhound Racing Authority v Bragg[4]

The notion of 'inexact proof, and indefinite testimony or indirect references [scil inferences]' needs to be translated to a comfortable level of satisfaction, fairly and properly arrived at, commensurate with the gravity of the charge, achieved in accordance with fair processes appropriate to and adopted by such a body.

1. I need to be satisfied as to the elements of each criterion to a comfortable level of satisfaction on the balance of probabilities consistent with the gravity of the allegations.

1. Under the New Standard, there is a four step process. The first step is to determine whether a dog is exempt under any of four Categories of Exemption. If the dog meets any one of the Categories of Exemption, the dog does not fall within the standard for the American Pit Bull Terrier breed. There are then three cumulative requirements.

1. Categories of Exemption
   • Dogs in respect of which the owner has one of the following certificates stating that the dog is an American Staffordshire Terrier -

- a pedigree certificate from the Australian National Kennel Council;

- a pedigree certificate from a member body of the Australian National Kennel Council;

- a pedigree certificate from a national breed council registered with the Australian National Kennel Council;

- a certificate signed by a veterinary practitioner.

• Blue eyes.
• The colour of the coat is blue merle or pure white.
• Tail curled over the back.

1. There was no evidence that any of the Categories of Exemption apply. I find that no exemption category applies to the dog.

1. The next step is to determine whether the dog meets the following Cumulative Requirements:
   • not less than 3 of the Conformation Criteria; and
   • not less than 10 of the Physical Characteristics Criteria; and
   • not less than 10 of the Supplementary Physical Characteristics Criteria.
2. If the dog meets the Cumulative Requirements it falls within the standard of the American Pit Bull Terrier breed.

1. • Height at withers from the ground for bitches and dogs is 43 centimetres - 53 centimetres.
   • Weight for bitches and dogs is 14 kilograms - 36 kilograms.
   • Muzzle is slightly shorter in length to the skull, being a 2:3 ratio of muzzle to skull.
   • 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.
   • The distance from withers to the elbow and the elbow to the ground is generally equal.

Confirmation Criterion: Height at withers from the ground for bitches and dogs is 43 centimetres - 53 centimetres

1. Ms Bugeja's report of the assessment of the dog states that the dog 'is an entire mature male and is (sic) measured height is approximately 52 centimetres which falls within the guidelines. This measurement was taken with a calibrated measuring device and a folder for cross reference.'
2. Under cross-examination, Ms Bugeja concealed that 'live' measurements of the dog were not taken due to his agitated state at the time. The process followed by Ms Bugeja and Mr Forward was to take photographs and later make measurements from the photographs.
3. The photograph relating to the assessment of the dog's height shows the dog standing and a measuring stick alongside him. Some item (which may be a folder) is being held across his withers and extending to intersect with the measuring stick. From the photograph, it appears that the item across the dog's withers is not horizontal but slopes down towards the point of intersection with the measuring stick. If this is the case, the height read from the measuring stick is less than the actual height.
4. I find that this method of measuring the dog's height is unscientific and lacking certainty. Given that the reported height is only 1 centimetre under the maximum height allowed by the Standard, I am unable to be satisfied to the Briginshaw standard that the dog meets this criterion.
5. Dr Ayerbe was unable to measure the dog's height.

Confirmation Criterion: Weight for bitches and dogs is 14 kilograms - 36 kilograms

1. None of the witnesses weighed the dog. Evidence was received that an employee of the Lost Dogs Home weighed the dog, but this person did not give evidence. In submissions after completion of the hearing, Counsel for the applicant stated that it is not disputed that the dog falls within the weight range in the Standard. No basis was given. A party not disputing something and the Tribunal being comfortably satisfied of that they are two entirely separate matters. Give the onus being on the respondent and the lack of direct evidence of the weigh of the dog, I am unable to be satisfied to the Briginshaw standard that the dog meets his criterion.
2. I now step over the next two Confirmation Criterion and direct my attention to the fifth and final Conformation Criterion.

Conformation Criterion: The distance from withers to the elbow and the elbow to the ground is generally equal

1. Dr Ayerbe was unable to carry out these measurements.
2. Again, Ms Bugeja and Mr Forward did not make direct measurements but held a measuring stick against the dog and took photographs.
3. Ms Bugeja's report states:

Height of the elbow to ground is approx 28 centimetres with the withers to elbow approx 24 centimetres. Looking at [the dog] in an overall view of his height he is generally equal in proportion from withers to elbow & elbow to ground.

1. Again, I am not satisfied that the photograph contained in Ms Bugeja's report which was used to come to the conclusion of measurement depicts a sufficiently scientific and certain method. Additionally, the measurements of 28 centimetres and 24 centimetres add up to 52 centimetres. The mid point would be 26 centimetres. The reported height of the elbow to ground is 2 centimetres over this notional mid point and the height withers to elbow is 2 centimetres under this notional mid point.
2. I am unable to be satisfied to the Briginshaw standard that the distance from withers to the elbow and the elbow to the ground are generally equal.
3. I find that the dog does not comply with this criterion.

1. Having found that the dog does not meet three of the five Conformation Criteria it is not necessary to consider the matter further as the dog is not capable of meeting not less than three of the Conformation Criteria. As the requirement that the dog meets not less than three of the Conformation Criteria is a conjunctive requirement to taking the next step in determination, the failure to meet the requirement means that the determinative process stops at this point.
2. The dog is not a restricted breed dog as defined by Part 1 of the New Standard.

[1] [2014] VCAT 1485.

[2] [1938] HCA 34; (1938) 60 CLR 336.

[3] [2013] VSCA 305; (2013) 306 ALR 125 [38} - [39] (Osborne and Beach JJA).

[4] [2003] NSWCA 388 [35] (emphasis omitted).