Ms C Burnside of counsel with Ms E Tueno of counsel

Note: These written reasons consist of an edited transcription of reasons given orally at the conclusion of the hearing.

1. This application has come back to the Tribunal on remitter from the Supreme Court where a decision of another member on a jurisdictional issue was set aside. The matter before me is a review of a decision of the respondent made pursuant to s 98 of the Domestic Animals Act 1994 (the Act) to declare the dog Mylo a restricted breed of dog (American Pit Bull Terrier). The Declaration was made on 17 May 2012 pursuant to s 98A of the Act. The applicant now seeks review of that decision pursuant to s 98 of the Act.
2. The scheme of the Act is that s 41EA of the Act forbids anyone from keeping a restricted breed of dog, and a "restricted breed of dog" is defined in s 3(3) and (4) of the Act which sub-sections read as follows :

(3) A dog that falls within an approved Standard for a breed of dog specified in a paragraph of the definition of restricted breed dog is taken to be a dog of that breed.

(4) For the purposes of subsection (3) an approved Standard is a Standard that has been approved by the Minister and published in the Government Gazette

1. The Standard was approved by the Minister and published in Government Gazette No S 283 on 1 September 2011.
2. The Standard has various criteria which I must look at in order to decide whether it substantially applies to Mylo.

1. Mylo has been assessed by four people.
2. For the applicant, he was assessed by Dr Ayerbe, a veterinary surgeon, who has practised as a veterinary surgeon since 1970. He is also an honorary life member of the RSPCA and a patron of the Victorian Schnauzer society, the Victorian Chow-Chow society and the Geelong Kennel Clinic. He has also run courses in animal ethics for the Department of Primary Industry's Bureau of Animal Welfare.
3. I also heard evidence on behalf of the applicant from Dr David Lowe. I would emphasise at this stage that Dr David Lowe is neither a medical doctor nor a veterinarian. In fact he is not a doctor in any health profession. Dr Lowe, as he has stated, has given evidence on many occasions previously in this Tribunal for many applicants. There was material tendered where he had made certain comments on Face book. His relevance to this case as an expert is primarily as a dog judge. He said that he was involved with Staffordshire Bull Terriers beginning in Adelaide, South Australia, in 1980. His career has largely involved judging Staffordshire Bull Terriers both in this country and in the United Kingdom. However, in approximately 2007 he was given a licence to judge all terrier dog types and has judged approximately 165 Pit Bull Terriers at a United Kennel Club show in the United States. He said he is an expert in the Terrier breed of dog.
4. Mr Christie, another witness, is a council officer who has been involved in animal catching and animal identification at councils for 29 years.
5. Mr Parker, the other witness for the respondent, is also an officer at the Brimbank Council and is employed as a prosecutions officer. He admitted that he had discussed the matter with Mr Christie, which is not surprising, considering up until the last directions hearing he was in fact prosecuting this proceeding on an interlocutory basis. He was selected as part of a working group by the Municipal Officers Association of Victoria. This group was made up of representatives of various councils and discussed the implication of the new legislation and reported back to the Municipal Officers Association of Victoria. The new legislation he referred to is the Domestic Animals Act insofar as it relates to restricted breed of dogs. In 2012, he also attended a Breed Identification Seminar organised by the Department of Primary Industry. He also stated that in 2005 he was an officer of the Hume Council and delivered seminars regarding restricted breed dogs, their identification and assessment and the legislative requirements. The seminar was delivered to other councils and representatives from the Department of Primary Industry. He said during his experience in Local Government he has dealt with Compliance and Animal Management and he said he has dealt with at least 100 dogs.

1. Before I move on to the assessment of Mylo, I wish to make some comment about the witnesses themselves.
2. Dr Ayerbe, a veterinary surgeon, was the first witness to be called by the applicant. He attempted to give his evidence in the best way he could. However, unfortunately, when he was giving his evidence rather than sticking to the Standard which is required by the legislation, he frequently diverted into giving evidence as to what he would normally expect of a pure pit bull terrier. That is not the way that an assessment should be conducted. It should be conducted as to whether there is compliance with the Standard on each indicia in the Standard. He did that on occasions but, on other occasions, he did not. Further, I gained the impression that he was concerned that dogs should not endure euthanasia if they are found to be an unregistered pit bull terrier.
3. Dr Lowe, who I have already mentioned, was the other witness called on behalf of the applicant.
4. Mr Appudurai, for the respondent, made the submission that I should pay little regard to Dr Lowe's evidence. He suggested that Dr Lowe was attempting to be an advocate. Mr Appudurai tendered a Face book page of Dr Lowe's Face book. On that page it is stated:

David Lowe another one done and dusted. Next case I'm up is Mylo 20 August. I really hope I can keep my winning habit going.

This suggests to me that Dr Lowe had motives other than an expert witness. He had motives other than to inform the Tribunal of the true state of affairs. That statement on the Face book page verified what I thought was likely from his evidence that he was an advocate for the applicant.

1. Ms Burnside, on behalf of the applicant, said that Dr Lowe was an experienced dog judge and that I should give his evidence great weight. In my view, there were many incidents, during Dr Lowe's evidence, where matters raised by Dr Lowe suggested that he was behaving like an advocate. He tried to interpret the Standard by matters outside the Standard. For instance, on page 12 of his report, when referring to the skull, he expressed an opinion as to what weight should be given to various matters. That is a matter for the Tribunal. I found this quite surprising because he is a man that has appeared before the Tribunal on many occasions. He further expressed the opinion that Mylo is not a terrier bull breed genotype. I found that quite extraordinary considering that he was meant to be giving an opinion as to whether Mylo complied with the Standards or otherwise.
2. Further, I found Dr Lowe to be quite evasive. I asked him whether he had a law degree. He answered he had a Masters in Commercial Law. I again asked him and he still did not answer. It was only when I specifically asked him whether he had a LLB he said 'No'. Taking all these matters into account, I was unimpressed with the evidence of Dr Lowe and I will give little weight to his opinion.
3. As far as Mr Christie is concerned, I note that he did not give a great deal of detail in expressing his opinion. Except for measurements, which he gave, he just noted whether there was compliance. In fact, he said there was compliance in relation to every category in the Standard. It is desirable that there be some explanation as to why there is compliance. Having said that, I nonetheless formed the opinion that Mr Christie genuinely believed, after comparing Mylo with the Standard, that there was compliance with each criteria as was written in his statement.
4. I do not accept what Ms Burnside said that Mr Christie's evidence was tainted or should be disregarded because he had had no formal training. I do not believe it is necessary that there be formal training. It is necessary that there be a familiarity with the dog in question and that one is able to read and interpret the Standards and give an opinion in that manner. Mr Christie did that.
5. I was particularly impressed with Mr Parker's evidence. Mr Parker gave me the impression that he had carried out a thorough examination of Mylo and that he was thoroughly au fait with the Standard and knew what he was looking for. There were occasions where he perhaps particularly, in relation to Mylo's feet, should have picked up on matters that he did not. For instance, he said the feet were compliant but in fact there was only partial compliance because the pads of the feet were not hard enough. He readily conceded this point. He was thoroughly cross-examined about a number of matters and, in my view, the way he answered questions in cross-examination showed he was not only an honest witness but had a good knowledge of the Standard and the relevant breed of dog.
6. [Ms Burnside, counsel for the applicant, submitted that the evidence of both Mr Christie and Mr Parker should not be accepted as they did not act independently. While there may have been some discussion between these two witnesses, I do not believe it has affected their views. Their views were properly and independently held].

1. I now turn to the relevant criteria in the Standard.

... a medium sized dog and is strongly built with well defined muscles. The breed is noted for its climbing ability and subsequent strength in its hindquarters.

Clearly, most of these matters have been dealt with elsewhere. However, Dr Ayerbe said the dog was over-sized and it did not have the look of a pit bull terrier.

1. As far as the other witnesses were concerned, they generally confined themselves in this area to the measurement, which criteria in the Standard states -

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 disparity between height and weight is considerable and importance should be placed on the overall consideration of the assessment of the dog rather than adhering absolutely to the guidelines on height

1. Dr Ayerbe measured the length of Mylo as 50 cm with a height of 52 cm. Dr Lowe measured the length of Mylo as 52 cm with a height of 51.5 cm. On the other hand, Mr Christie measured the length of Mylo at 54 cm with a height of 51 cm. Mr Parker measured Milo at 57 cm in length and a height of 52.5 cm. Although I do note that at another point, he measured the height at 53 cm. That is taking the withers to the elbow and the elbow to the ground.
2. In my view, I do not have to specifically pick any of these measurements. However, it is clear that this dog is longer in length than in height. It only needs to be slightly longer. So even if one takes Dr Lowe's measurements using a measuring frame, it is half a centimetre longer than higher. It is a lot more if one takes Mr Parker's measurements and more if one takes Mr Christie's measurements. And it is clearly 2 cm greater in height than length if one looks at Dr Ayerbe's evidence. However, Dr Ayerbe's evidence seem to be out of line with the rest of the evidence and I make a finding that, as far as the ratio of length to height is concerned, Mylo comes within the Standard in that it is slightly longer in length than height.
3. The other matter of measurement is the "distance from withers to the elbow and the elbow to the ground is generally equal". Mr Christie measured the distance of the withers to the elbow at 24 cm and the elbow to the ground at 26 cm. Dr Ayerbe measured the distance of the elbow to the ground at 32 cm and distance of the withers to the elbow at 20 cm. Dr Lowe measured the withers to the elbow at 24 cm and the elbow to the ground at 27.5 cm. Mr Parker measured the withers to the elbow at 26.5 cm and the elbow to the ground at 26 cm. Clearly, these measurements all differ and none of the witnesses gave evidence that the distance between the withers and the elbow and the elbow to the ground were identical. However, I note the word "generally" is used in the Standard and I have already made comment as to why I am impressed by Mr Parker's evidence. I also note it was said that Dr Lowe's evidence should be accepted above others because he used a measuring frame. However, if a measuring tape is used and used properly, it can be as accurate. Bearing that in mind, I prefer the evidence of Mr Parker as to measurements where there is a 0.5 cm difference. I consider that substantial compliance in relation to the measurement of withers to elbow and elbow to the ground.
4. In relation to the dog's weight, the Standard requires the dog to be between 14 kg and 36 kg. Dr Lowe found Mylo to be 27 kg; Mr Christie found him to be 23.6 kg; Mr Parker weighed Mylo and found him to be 29 kg and Dr Ayerbe does not appear to have weighed the dog. Thus I find Mylo's weight is clearly within the Standard.

1. The criteria in the Standard for the head states -

The head is proportionate to the dog. Viewed from above, the general shape of the head is that of a blunt wedge, large and broad.

1. Dr Ayerbe said that the head was oversized.
2. Dr Lowe said that "Mylo's head is in proportion to the overall dog and is relatively large".

1. Dr Ayerbe said that Mylo's head was of a triangular shape, as did Dr Lowe. However, Mr Christie and Mr Parker both said that Mylo's head was a blunt wedge.
2. On looking at the Standard, I have some difficulty in interpreting on this point. The Standard at Figure 2 shows the head of a dog that looks very similar to Mylo's head and that is a picture taken at eye level as is the sketch in the Standard. However, when one looks at Mylo from above which is the general way that it should be viewed, it certainly is not as a blunt wedge as when looking at eye level. However, looking at it from above, it is still a blunt wedge. It is not pointed as suggested by Dr Lowe or Dr Ayerbe.
3. In my view, the words "blunt wedge" does not mean that it has to be a long wedge because if one was to take it as the wedge as at Figure 2, then it should be taken from eye level. It is clear that if one is to take it from above, the wedge must have a shorter distance at the bottom of the diagram than would be otherwise. Even looking at Dr Lowe's evidence in relation to the diagram, I have formed the view that Mylo complies with him having a blunt wedge, large and broad on his head. I agree with the assessment of Mr Christie and Mr Parker that Mylo's head complies with the Standard in this regard. Thus I find that Mylo complies with this part of the Standard.
4. The next criteria that I must decide in relation to the head is -

Viewed from the side, the skull and muzzle are on parallel plains separated by a moderately deep stop. Arches over the eyes are well defined but not pronounced.

1. Dr Ayerbe said the muzzle and skull are not on parallel plains. The stop is long and marginally elevated without arches.
2. As far as Dr Lowe is concerned, he said -

Mylo has a highly unusual skull which has its effects on this criteria also. ...

Arches over the eye are not pronounced and Mylo has a moderately deep stop.

Areas of non-compliance: One of the unusual aspects of Mylo's skull is that it has a distinctly palpatable 'break' approximately half way along its length which results in there effectively being 2 skull plains. This is highly irregular. Neither of these 2 skulls plains is parallel as depicted in the photo supplied. The arches over the eyes are not well defined at all, which is why they are also not pronounced.

1. Both Mr Christie and Mr Parker have a different view from the other two witnesses about this matter. Both of them say that the skull complies and, in particular, Mr Parker says that "the skull and muzzle are on parallel plains with the stop being moderately deep" but not overly deep and certainly not shallow. He said there are arches over the eyes but whilst well defined they are not pronounced.
2. I have inspected the numerous photographs that have been put before me in this proceeding and have concluded that I prefer the evidence of Mr Parker. In my view, he has properly summed up the situation. Thus I find compliance in relation to this part of the Standard.
3. In relation to the question of the muzzle, the Standard requires that it be "slightly shorter in length to the skull, (a ratio of 2:3 for muzzle: skull). It is broad, deep and powerful with a slight taper to the nose and falls away slightly under the eyes".
4. Dr Ayerbe said that the muzzle is longer than the skull and Dr Lowe said that there is a ratio of 1:2 for muzzle: skull. He measured it at 8.5/17 cm and he said that as such this muzzle could not be described as powerful.
5. As far as Mr Parker is concerned, the measurements he recorded was "muzzle 8cm, skull 14cm, the muzzle is shorter than the skull with a resulting ratio of 2:3.5". He also said the head profile is compliant.
6. Looking at all these matters, and having looked at the pictures which were tendered, I have taken the view that I prefer the evidence of Mr Parker. I accept that evidence. Thus I find Mylo is substantially compliant in this regard.

1. As far as the lips are concerned, Mr Christie, Dr Lowe and Mr Parker said that the lips were compliant. Dr Ayerbe said he had no opinion on the matter of the lips because in relation to this particular criteria in the Standard he could not understand it. I have difficulty understanding why he could not understand it but, however, on the basis of what the other witnesses have said, I have formed the view that the lips comply with the Standard.

1. It is required by the Standard that the teeth be "large and a complete scissor bite, ie upper teeth closely overlapping the lower teeth and set square to the jaws".
2. Mr Christie and Dr Ayerbe said that the teeth were compliant. As far as Dr Lowe was concerned, he said that the teeth were "not large, being quite small for the size of the dog he is". He therefore said the teeth did not comply. As far as Mr Parker was concerned, he said the teeth were largely compliant. He said:

... I was able to view Mylo's teeth, both from the side view and from front on. His teeth are set square to his jaw and there is a close overlap, particularly in the incisors, but overall the teeth were seen to mesh in a scissor bite.

1. I accept the evidence of Mr Parker. I consider him to be the most accurate witness and particularly after having seen the pictures, I do not think there can be full compliance but there is large compliance.

1. The Standard requires the nose to be "large with wide open nostrils and may be of any colour".
2. Mr Christie, Dr Ayerbe and Mr Parker all said that there was compliance. However, Dr Lowe said there was low compliance. He said that he found Mylo to be largely non-compliant with aspects of the nose describing Mylo's nostrils as quite small and the nostrils in dog jargon as being "open".
3. I have looked at the photographs in this matter and, in my view, in relation to the nose, there is compliance with the requirements in the Standard. The nostrils are as they are described in the Standard and therefore I find there is compliance.

1. The eyes are required to be "medium in size, round in shape and set low in the head - not prominent. Eyes can be all colours except blue. The eye rims are the same colour as the skin colour".
2. Insofar as the eye rims are concerned, all the witnesses, apart from Dr Ayerbe, said that the eye rims were of the same colour as the skin. I accept that they were of the same colour. Then there is the question of whether the eyes are round or almond shape and whether they are set low in the head and not prominent. Dr Ayerbe said that they were almond shaped.
3. Having looked at the eyes in the photographs, while they are not completely round, in my view they are close to being round - more round than what one normally sees in these matters. Further, the eyes are set low in the head - not prominent. Therefore, I find that there is medium compliance in relation to the eyes.

1. In relation to the ears, the Standard requires the "shape and carriage of the ears will vary from dog to dog. Generally they are set fairly high on the skull, not large and may be half pricked or rose shaped (ie folding backwards and exposing the inner burr of the ear).
2. Dr Ayerbe said the ears do not comply. As far as Dr Lowe is concerned, he said there was "partial compliance. Mylo has the compliant rose shaped ears set relatively high on the skull, but his ears are particularly large". Apart from Dr Lowe, no one seems to have commented whether the ears are large or otherwise. Mr Christie and Mr Parker said the ears were compliant with Mr Parker saying Mylo had rose shaped ears set high on the head.
3. Doing the best I can with the evidence before me, I have come to the conclusion that the ears are largely compliant. They seem to be compliant in every way and I am unable to determine whether they are large or not and there was no cross-examination on that point. So I find that the ears are largely compliant.

1. Insofar as the neck is concerned, the Standard requires that it be of "moderate length and with great strength, tapering from the head into the shoulders. A slight arch over the crest. The neck must be free from loose skin or dewlap (loose, pendulous skin under the throat). Both Mr Christie and Mr Parker said there was full compliance. Dr Ayerbe said "the neck is long and has no taper" but he said there was some loose skin under the throat. Dr Lowe said that there is "partial albeit quite low compliance". He said the area of compliance is "Mylo's jawline is above his back line and there is no evidence of loose skin or dewlap". He said the areas of non-compliance are "Mylo's neck is quite long, shows no crest or arch, is straight through (no taper). Due to the fact that it is quite long and straight through is not a strong neck".
2. The comments that Mr Parker made in coming to the conclusion, that there was compliance, were:

... neck is of moderate length, great strength was exhibited in the neck, ... It tapers from the head and flows into the shoulders, there was an arch present over the crest and no loose skin was seen or felt under the throat.

1. In this regard, I prefer the evidence of Mr Parker and I accept his evidence in that regard. Therefore, I find the neck complies with the Standard.

1. Insofar as the forequarters are concerned, the Standard requires -

Strong forelegs, well boned and muscular with elbows fitting close to the body. Viewed from the front the forelegs are set moderately well apart and in a straight line to the ground.

1. Mr Christie has again found compliance. Dr Ayerbe said: "The forelegs are 'well boned' but the elbows are not close to the body ... the legs are not straight to the ground". Insofar as Dr Lowe is concerned, he said there is very low compliance. He said the dog is "lightly boned ... not well muscled and as such could not be described as strong. ... the elbows are well displaced from his body and are therefore not close fitting.
2. Mr Parker has described Mylo's forelegs as -

... strong and well boned with strong musculature present, his elbows were fitted close to his body, the legs are set moderately well apart and form a straight or perpendicular line to the ground. I find Mylo to be compliant.

1. It is somewhat difficult in this situation because one would have thought that Mr Parker on the one hand, and Dr Lowe and Dr Ayerbe, were talking about two different dogs. However, I have examined the photographs and after examining them, I have concluded that the evidence given by Mr Parker is correct and that is supported also by Mr Christie's evidence. Therefore, I find that there is compliance in the forelegs.

The pasterns are short and fairly straight with flexibility. Viewed from the side, the legs are straight with some flexibility in the pasterns.

1. Again, Mr Christie said there is compliance.
2. Dr Ayerbe said "the pasterns are 'dropped' rather than perpendicular and turn outward". Dr Lowe found the pasterns did not comply, saying Mylo's pasterns are quite long and lay back and lack strength and flexibility. Further, he said the legs are not straight.
3. Mr Parker said:

The front and rear pasterns were assessed as being short and fairly straight, in feeling this area of the dog flexibility was found. The legs themselves were found to be straight. My assessment found that Mylo achieved a high level of compliance in this area.

1. After having looked at the photographs, I accept what Mr Parker said above. Therefore, insofar as the pasterns are concerned, there is a high level of compliance.

1. The Standard requires the body to be "powerfully built with a deep chest of moderate width".
2. Dr Ayerbe said that the chest is more "narrow".
3. Dr Lowe said that there was non-compliance in regard to the chest - "Mylo's chest is lacking in depth, not even reaching the point of his elbows and he is not powerfully built in this region".
4. Mr Parker said -

Mylo exhibited a powerfully built chest both visually and when felt during my assessment, it was of a moderate width and possessed depth. I find Mylo to comply to a high degree in this area.

1. Again, I have had resort to the photographs and again I have come to the conclusion that I accept what Mr Parker said in relation to Mylo's body. I also note that when Dr Lowe gave his evidence in this regard, he imposed his own requirement into the Standard. Thus, I find that there is a high degree of compliance.

Should not extend far beyond the point of shoulder or below the elbow. Well ribbed back with moderate tuck up (concave underline of the body curving upwards from end of the ribs to waist).

1. Dr Ayerbe said the forechest complies.
2. Dr Lowe said there is compliance is so far as "Mylo is well ribbed back and his chest depth is approximately at the level of his elbows. He said there is non-compliance in that -

Mylo has very little tuck up to speak of. Mylo's forechest does not extend beyond his shoulders at all and whilst as a point of technicality this satisfies the standard, it is nevertheless a point of contention that the standard through its description and the diagram provided requires that the dog does actually have a forechest that extends beyond the shoulders, albeit not too much. It should be noted that Mylo's forechest does not actually extend beyond the shoulders at all and therefore an argument exists that in terms of intent as described he is non-compliant. In my opinion this should be viewed as non-compliance as when considering the bull breeds lack of any degree of pro-sternum is very untypical of the type of dog required.

Dr Lowe's description here is an example of him placing his requirements into the Standard that do not exist. He is giving his opinion more about what the Standard should be than what it says. That is not his job, this is just another example of Dr Lowe advocating.

My assessment of Forechest was that it complied to a high degree to the requirements of the standard, it did not extend much further than the point of shoulder and was approximately in line with the elbow. A moderate tuck up was visually observed as well as a well ribbed back which was also felt during the assessment.

1. I have examined the photographs and it appears to me that Mr Parker's description complies with the photographs and I accept that description and find that there was a high degree of compliance in relation to Mylo's forechest.

Broad, strong, firm and level and with a slight incline at the withers.

1. All the witnesses, apart from Dr Lowe, agreed that there was compliance in relation to the back. Dr Lowe said there was low compliance. He said in relation to compliance:

Mylo's back is firm". In relation to non-compliance he said: "Mylo's back is quite narrow, is not level having a strong roach over his loin and a distinct dip midway in his back and the incline to his withers, as a result of this dip, is quite pronounced and cannot be described as slight.

1. Having made the comments that I have made about Dr Lowe, I prefer the evidence of the other witnesses and find that there is compliance insofar as the back is concerned. This conclusion is supported by the photographs I have seen.

1. The Standard for the loin states: "Short and deep with a slight slope to the croup".
2. Dr Ayerbe said: "The loin is comparatively long in comparison with the body". However, all the other witnesses said that there is compliance. Bearing that in mind I accept the evidence of the other witnesses and find that there is compliance in the loin. I have also viewed the photographs in that regard and I am satisfied that there is compliance.

Strong and muscular hindquarters that are in balance with the forequarters. Thighs are well developed and muscular.

1. Dr Ayerbe said that "the rear pasterns are elevated from the ground and are not parallel to each other" and that there is non-compliance in this regard.
2. Dr Lowe said there is high compliance and Mr Parker also expressed a high compliance in this regard. He said:

Mylo's hindquarters were in balance with the forequarters and exhibited extensive development and musculature, this was visually observed and felt during my assessment, and I found Mylo to be compliant to a high degree.

1. Looking at the photographs in this matter, I accept what Mr Parker said and find that there is high compliance.
2. Insofar as the hock joint is concerned, the Standard requires that:

The hock joint should be well bent and the rear pasterns close to the ground, perpendicular and parallel to each other.

1. Dr Ayerbe has found that the pasterns were not parallel.
2. Dr Lowe said that the pasterns were "reasonably parallel when viewed from the rear".
3. Mr Parker said that the pasterns were compliant - " a well bent hock joint and rear pasterns close to the ground".
4. I have also looked at the photographs in this matter and I am of the view that they are compliant and I accept Mr Parker's evidence. I find that there is compliance in relation to the rear pasterns and hock joint.

The feet are round and in balance with the size of the dog, well arched and tight. The pads are hard and well cushioned. Nails are strong. Dewclaws may be removed.

1. It was put to Mr Christie during cross-examination that the feet were flat. He did not disagree with that.
2. Dr Ayerbe said the feet are flat, small and the pads are soft.
3. Dr Lowe said that there was moderate compliance in relation to the feet. He said the areas of non-compliance were "not round, not well arched, not tight. In addition to this the pads are quite soft". In relation to the areas of compliance he stated that: "His feet are in balance with the size of the dog, there is reasonable tightness, his pads are well cushioned and the nails are strong".
4. Mr Parker said:

The feet were assessed as compliant, feet were round and in balance, well arched and tight., the pads were not assessed as hard, but were firm and well cushioned, this could be partially due to a long period of confinement with limited exercise opportunities. The nails appeared to, and were felt to be strong.

1. Clearly, it is required that the pads be hard. These pads were not hard. To that extent, Mr Parker has got it wrong when he said that there is fully compliance. However, there is compliance with other parts of the feet and it dos seem to me from the photographs that the feet are flat and also that does not comply. I do not agree that the feet are small. In my view, they are rounded. I think the proper category here is to find that there is partial compliance.

The tail is set in line with the back and tapers to a point. At rest the tail is carried low and when excited may be carried raised but never curled over the back. The length of the tail should reach approximately to the hock joint.

1. The only witness who did not say there was compliance here was Dr Lowe and he said there was moderate compliance. He said: "... although is longer (tail) than depicted by the standard and the set on is slightly below the line of the back".
2. I have viewed the photographs of Mylo and have taken into account the views of the other witnesses and I am of the view that the tail does comply. I accept the evidence of Mr Parker.
3. Having made those findings, I am now required to apply those facts to the law.

1. In Dudas v Monash City Council; Tawara-Shearer v Darebin City Council [2012] VSC 578, a decision by Kaye J delivered on 29 November 2012 (unreported), at paragraph [91] his Honour made the point that it is not necessary for the dog to comply with individual characteristics. His Honour said:

.... I do not consider that, on a proper construction of s 3(3) of the Act and the Standard, it is necessary that a dog conform with each of the individual characteristics specified in the Standard. The use of the phrase 'meets the description' at the commencement of the Standard, does not, of itself, require conformity by the dog with each and every criterion specified in the Standard.

Thus I will apply the law that it is not necessary to have conformity with each and every part of the Standard.

1. At paragraph [93] his Honour also made reference to the fact that one should look at the overall assessment. His Honour stated:

The reference, in that part of the Standard to the 'overall consideration of the assessment of the dog', lends support to the proposition that s 3(3) and the Standard do not require there to be total conformity with each of the elements contained in the Standard. Rather, by considering each of those elements, it is necessary that, on an 'overall assessment', the dog be properly determined to meet the description contained in the Standard.

This I have done and when making the findings in relation to whether there has been compliance, I have followed his Honour's direction.

1. His Honour also made it clear that the dog must come within the four corners of the Standard. At paragraphs [97] his Honour said:

As I have already stated, in order that a dog 'fall within' an approved Standard for the purposes of s 3(3), it must come within the four corners of that Standard. The Standard, for an American pit bull terrier, requires that the dog must 'meet the description' of a dog in that part of the Standard.

I will apply that when I come to applying the facts as to whether there has been substantial compliance.

1. His Honour referred to substantial compliance in paragraph [98] of his decision. He said:

As a matter of ordinary parlance, in order to conclude that an object (or an animal) 'meets' a particular description, there must be substantial compliance between the object or animal and the description. In construing the Standard, it is important to bear in mind that the legislation was directed to particular specified classes of breeds of dogs, as a measure to protect community safety.

1. At paragraph [99] his Honour further went on to describe substantial and high level of correspondence. His Honour said:

Taken in that context, the requirement that a dog 'meet the description' of the American pit bull terrier must contemplate, in my view, a substantial, or high, level of correspondence between the characteristics of the particular dog in question, and the description of those characteristics in the Standard.

1. At paragraph [100] his Honour talked about how to determine whether there was substantial and high compliance with the Standard. He stated:

... in an individual case, the question whether there is the requisite high or substantial level of correspondence between the dog, and the Standard, will ultimately be one of appropriate judgment in the particular case. That judgment may depend on the expert opinion (if any) available to the authorised officer or, on review, to the Tribunal, as to whether any particular characteristics or criteria, specified in the Standard, are of particular importance in determining whether there is a high or substantial level of correspondence between the characteristics in the Standard and the particular dog in question, so that it can be properly concluded that the dog 'meets the description' of the dog in the Standard. However, in the end, as a matter of proper construction, the relevant characteristics of the dog in question must be assessed, in quantitative and qualitative terms, to have a substantial or high level of correspondence with the criteria specified in the Standard, in order that it 'meet the description' of a dog in that part of the Standard. (emphasis supplied).

1. Thus what I must now consider is whether the "quantitative and qualitative terms" as to whether Mylo meets the Standard to a substantial and high level.
2. In each of the criteria for the Standard, I have found there is at least compliance in some degree and many of the criteria have completely complied or largely, highly or substantially complied. The only part of the anatomy of Mylo where I have found that there is less than a large or high degree of compliance is in relation to the feet and the eyes. The criteria where I have found compliance or, a large, high or substantial degree of compliance, are what I would consider the important criteria of the things that may cause danger to the public. That is the strength of the legs, the muscles, the teeth etc. These are matters that there has either been compliance or high or large compliance with the Standard. In terms of quantitative terms, there has been very substantial high compliance in this case more so that in any other case that I have dealt with. In qualitative terms, there has also been high or substantial compliance with the Standard. I have made findings that most of the criteria are either complete compliance or high or large compliance with the Standard. Bearing that in mind, I have no difficulty in coming to the conclusion that there is a level of substantial and high level of correspondence between the specified Standard and the description of Mylo that I have found. Given those circumstances, I find that the Declaration should be affirmed and, as such, I will affirm the decision of the respondent.