(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

(b) if the dog is a menacing dog and its owner has received at least 2 infringement notices in respect of the offence in section 41E; or

(c) if the dog has been declared a dangerous dog under a law of another State or a Territory of the Commonwealth that corresponds with this Division; 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. There is no evidence or submission that the exceptions detailed within sub section 2 of section 34, apply in this case.
2. Section 35 of the Act details the procedural steps that the Council must take before declaring the dog to be dangerous
   1. Procedure for making declaration

(2) If the Council proposes that a dog be declared dangerous and the proposal does not arise from an application from the owner, the Council must-

(b) allow the owner the opportunity to make both written and oral submissions to the Council.

(3) The Council must consider any material submitted to it before making a declaration.

1. Once a dog has been declared dangerous, the Act provides for the conditions under which the dog can be kept. The dog must be restrained on the owner's premises[1]. Warning signs must be displayed at the owner's premises[2]. The dog must wear an identification collar[3]. The dog must be restrained when off the owner's premises[4].
2. The Dangerous Animal Regulations 2005 detail the type of restraint, signs and collar required following the declaration of a dog as dangerous.

1. On 02 August 2009, the applicant's hairdresser, Ms Georgina Walsh, had attended the applicant's premises. Ms Walsh left the premises and went next door to visit a friend. When Ms Walsh emerged from the next-door neighbour's home, she saw the dog 'ferreting' around the neighbour's home. She called to the dog to come with her and she and the dog walked up the driveway to the front gate of the neighbour's home.
2. At the front gate, she noticed the dog's attention drawn to something across the road. The dog then started running across the road and she saw the dog grab hold of another dog that was on a leash and shake the second dog.
3. Ms Walsh called for the applicant and her daughter to help. She also ran towards the dogs. Ms Walsh says that by the time she got to the dogs the applicant's daughter had the dog under control.
4. Ms Walsh said she had known the dog since the applicant adopted the dog and she described it as a silly dog, a dill, not a vicious dog. She said she had never experienced any trouble with the dog.
5. The owner of the second dog, Sharon Anderson-Lubech gave evidence that she was simply walking two dogs, both on leashes. She saw the dog running towards them and she called for it to stop. She says that initially the dog stopped but then started running again.
6. The dog then grabbed hold of the second dog tossed it about and shook it. The dog did not respond to her orders to stop.
7. Ms Anderson-Lubech could hear and see Ms Walsh calling out to the dog. The dog was ignoring Ms Walsh.
8. Ms Anderson-Lubech then observed a second woman come onto the scene. Ms Anderson-Lubech assumed it was the owner of the dog. Ms Anderson-Lubech says that initially the dog ignored her commands but as the second woman got closer, the dog let the second dog go. The dog walked away a short distance, looked back but did not charge again.
9. The applicant says it was her daughter that brought the dog under control. The applicant says the dog was ignoring her, as she was angry and yelling at the dog and so the dog did not obey her.
10. The veterinary report dated 24 August 2009 reads:

She had a large skin laceration to her left flank, puncture wounds on her thorax and dorsal back. Her condition required that she was stabilised in hospital before undergoing surgery the following day. Stabilisation and assessment included x-rays of her chest, intravenous fluids, pain relief and antibiotics. On the 3/8/09 she was placed under a general anaesthetic to allow us to further assess and suture her wounds. These wounds have required ongoing monitoring and medications.

1. The Council invited written and/or oral submissions from the applicant. The applicant elected to make oral and written submissions. The Council convened a panel consisting of the Executive Officer Local Laws, the Executive Officer Risk Management and the Health and Safety Advisor, all from the Council.
2. The panel conducted a hearing. The applicant attended with her partner and a professional dog trainer, Mr Michael Tucker. The applicant and Mr Tucker made submissions, both orally and in writing.
3. Following the panel hearing the panel recommended that the dog be declared dangerous.
4. In accordance with the panel determination, the Executive Officer Local Laws Unit, as delegated by the Council, made a determination to declare the dog dangerous and advised the applicant.
5. Mr Michael Tucker, who described himself as a dog trainer with over fifty years experience, was engaged by the applicant to give evidence on her behalf. The thrust of Mr Tucker's evidence was that while running across the road the dog built itself up to a state of excitement where it is out of control but that this is not aggression.
6. Mr Tucker said he had spent an hour with the dog and did not believe it was either aggressive or dangerous. He was of the view that the events of 02 August 2009 would not happen again, even if the circumstances were the same. He said it could happen but would not necessarily happen.
7. Mr Tucker described the shaking of the second dog as excitability and not outright aggression.
8. The applicant said that the dog's behaviour on this day was something she had not seen either before or after 02 August 2009, and completely out of character. Although in her written submission she does describe all pet's, including the dog's, behaviour as unpredictable.
9. The applicant described the dog as friendly, happy amicable and not prone to aggressive behaviour. She described the dog's actions with the second dog as akin to the dog playing with her toys.
10. The applicant says that the dog only left the premises as a visitor had left a gate open. She says she has installed a self-closing gate and she is doing everything she can to ensure the dog does not escape again.
11. Mr Malone, the applicant's partner, described the dog as a family dog and he had never seen any aggressive behaviour in the dog.
12. The applicant agreed that she had previously owned a dog of a similar breed to the dog. The applicant agreed that she had received complaints from neighbours concerning the previous dog and had received direction from the Council to stop the dog wandering. The applicant maintained that she was the victim of a spiteful neighbour and the dog was simply seeking out food.
13. However, the applicant did agree that she was directed by the Council to register the previous dog as she had not done so.

14. The report from Mr Tucker compliments the applicant on her paying her restitution to the owner of the second dog. However, the evidence confirmed that even though the order for restitution at the Magistrates Court was made on 29 October 2009, the ordered amounts were not paid until the day before this Tribunal hearing.
15. The applicant said she thought Mr Tucker must have misunderstood what she said about restitution. The applicant says that she told Mr Tucker she fully intended to pay restitution. She says she had not done so until 21 June 2010 for financial reasons and the payment was unrelated to the Tribunal Hearing.

1. I am satisfied that the procedures adopted by the Council leading to the dog being declared dangerous are in accordance with the requirements of the Act. I am satisfied that the applicant was afforded adequate opportunity to put her position.
2. Even if I am mistaken in this view, I do not believe the applicant has suffered any prejudice in her application to me. As a self-represented applicant, I afforded her all opportunity to present her case and call what evidence she thought appropriate. Standing in the shoes of the Council I believe I have all information relevant to the decision at hand.
3. On the basis of the veterinary report, the photos of the second dog and the evidence of its owner, I am satisfied that as a consequence of being bitten by the dog, the second dog suffered a serious injury. The applicant did not oppose this finding.
4. I am satisfied that the preconditions for the Council declaring the dog dangerous, exist.
5. Mt Tucker provided a written report and he gave oral evidence both at the panel hearing and before me. I did not find him to be a reliable witness. I concluded that Mr Tucker's report was prepared for the benefit of the applicant and without the impartiality necessary for a worthwhile report that would assist the Tribunal. It was obvious that whenever Mr Tucker was asked a question that may not assist the applicant he became evasive and non-responsive.
6. It was Mr Tucker's hypothesis that by running, the dog built itself up to a level of excitement. This is not consistent with Ms Anderson-Lubech's evidence that when she called for the dog to stop, it stopped. It was clearly not totally out of control.
7. I prefer the evidence of Ms Anderson-Lubech. She had no reason to add that the dog initially stopped at her request, save that this is in fact the truth. In those circumstances, Mr Tucker's basic hypothesis fails. In all other respects I found his evidence to be unhelpful and as such I do not regard that evidence as useful for the decision making process.
8. I would remind Mr Tucker that under the Tribunal's Practice Note 2[5], it his paramount duty to assist the Tribunal and not simply to further the interests of his client.
9. The Act states its purpose as being to promote animal welfare, the responsible ownership of dogs and the protection of the environment[6].
10. There was evidence as to when the applicant paid restitution. The Council sought to challenge the credit of the applicant in this regard. The Council submits that restitution has only been paid in anticipation of these proceedings.
11. Even if I accept the submission of Council on this point, I am still satisfied that the applicant regrets this whole incident and genuinely feels remorse for the actions of her dog. However, the non-payment of the restitution until 21 June 2010 is not the action of a responsible dog owner. A responsible dog own has significant concern not only for their own dog but also for the safety and well-being of other dogs and their owners.
12. In this regard, I do not accept that the delayed payment was for financial reasons. It is too convenient that the payment is made the day before this hearing. I am strengthened in this view by the evidence that the applicant paid a fee to Mr Tucker rather than pay the restitution.
13. I accept the evidence from the Council that there were complaints about the applicant's previous dog and that she had to be directed to register the previous dog. This is not evidence of a responsible dog owner.
14. Importantly, I am satisfied that the dog has caused serious injury to an animal by biting that animal. In those circumstances, the Council and now I, have discretion to declare the dog dangerous.
15. I am not satisfied that the dog will not repeat its actions. As I have said, I can have no confidence in Mr Tucker's evidence in this regard. The applicant wants beyond anything that the dog not repeat its actions but she has neither satisfied me that the dog will not attack again or even that the dog could not escape from the premises again. Another moment's inattention could lead to the same result.
16. I accept the evidence of Ms Walsh, the applicant and Mr Malone that the dog has not exhibited similar behaviour either before or after the incident in question. However, the biting of the second dog causing serious injury did happen. The fact there has been no evidence of similar behaviour gives me no confidence that it could not or would not happen again.
17. The applicant has fitted a self-closing gate. This is a step in the right direction but I am not satisfied that this would guarantee the dog could not escape. If the dog were waiting by the gate, it could easily slip out while the gate was being opened.
18. In all these circumstances, the failure to declare the dog dangerous would not serve the object of either responsible dog ownership or the protection of the environment, including other dogs.
19. I am satisfied that the dog should be declared dangerous and I affirm the decision of the Council.

[1] Domestic Animals Act 1994, section 38.

[2] Ibid section 39.

[3] Ibid section 40.

[4] Ibid section 41.

[6] Ibid at section 1.