Gubbins v Wyndham City Council [2004] VSC 238

5. In determining that Jock be destroyed the Council acted under the power contained in s 80(4)(b) of the Domestic (Feral and Nuisance) Animals Act 1994 ("the Act"). The power to destroy was attracted in the following circumstances.

(a) On 1 January 2004 Jock escaped from the plaintiff's property in the defendant's municipal district, and chased four horses with riders for about 1.2 kilometres in the course of which he jumped at and bit three of the horses.

(b) Under s 29(1AA) of the Act an offence is committed if a dog that is not a dangerous dog attacks or bites any person or animal. Being the owner of Jock, which was not a "dangerous dog" as defined in s 3(1), the plaintiff was liable for the offence as well as for any damage caused by the dog (sub-sections (1AA) and (3)).

(c) Under s 77(1)(d)(ii) an authorised officer of a Council may seize a dog in the municipal district of that Council if the officer reasonably suspects that the owner is guilty of an offence under s 28 or s 29 of the Act with respect to that dog.

(d) On 5 January 2004 officers of the defendant seized Jock under s 77. Their authority to do so is not challenged. Nor is it suggested that it was not reasonably suspected that the plaintiff was guilty of an offence under s 29.

(e) Section 80(3) requires that if a dog has been seized under s 77(1)(c)(ii), (ca)(ii) or (d)(ii), the Council must commence prosecution for the offence believed to have been committed by the owner, as soon as possible after the seizure and must retain custody of the seized animal until the outcome of the prosecution is known.

(f) On 21 January 2004 the plaintiff was charged on summons with five offences as owner of an American Pit Bull Terrier, namely -

(i) not having applied to register the dog with the defendant, in breach of s 10(1);

(ii) the dog being at large outside the owner's premises, in breach of s 24(1);

(iii) three offences of Jock attacking and biting a horse, in breach of s 29(1AA).

The informant was an officer of the defendant.

(g) The charges were heard at the Magistrates' Court at Werribee on 17 March 2004. Prior to that day the plaintiff had been given copies of the statements of witnesses as to the events on 1 January, a photograph of Jock and photographs of the horses with attention to their injuries. There were seven statements, one from each of the female riders (each was a student), a statement from each of the parents of one of the girls, and one from a house owner who went outside in response to the screams of one of the girls "Help the dogs attacking our horses. Help. Help". The statements and photographs had been obtained by the defendant and provided to the plaintiff's solicitor, who gave them to the plaintiff. The plaintiff pleaded guilty to each charge. The Magistrate adjourned the hearing of the charges without conviction until 16 March 2005 on the plaintiff's undertaking to be of good behaviour and on condition he pay $300 to the Court fund and a further sum of $1,866.50 at $100 per month. Presumably the $1,866.50 represented costs.

(h) Section 80(4) provides that if the owner of a dog seized under s 77(1)(c)(ii), (ca) (ii) or (d)(ii) is found guilty of the offence -

(i) the Court may order the owner to pay to the Council the reasonable cost of custody of the dog until the outcome of the prosecution; and

(ii) the Council may destroy the dog.

(i) By letter dated 23 March 2004 the defendant's solicitors advised the plaintiff that "Council has decided to destroy your dog following the finding of guilt against you ... on 17 March."

11. One of the questions raised on the present application is whether in deciding to destroy Jock under the power contained in s 80(4)(b), the Council was required to afford procedural fairness to the plaintiff, in particular to provide him with the opportunity to address oral submissions. At present I merely note that there is no reference to such a requirement, or otherwise to the rules of natural justice, in s 80(4)(b). Nor is there provision for review of a decision to destroy. In contrast, however, elsewhere in the Act there is express provision for review by the Victorian Civil and Administrative Tribunal of certain decisions of a Council: s 98(1) (registration etc of a domestic animal business); and s 98(2) (declaration the dog is a dangerous dog under s 34, or a menacing dog under s 41A, or refusal to register or renew registration of a dangerous dog or restricted breed dog). Further, under s 98D there is provision for review by a review panel appointed by the Minister of a declaration under s 98A that a dog is a restricted breed dog. I return to the interpretation of the Act below.

14. On 23 February 2004 the Council adopted "Policy Guidelines For Destruction Of Dogs" under the Act. The guidelines set out six criteria for destruction, and provide for an appeals process. The document states:

"BACKGROUND: Council has statutory responsibilities concerning the management of dogs and public safety in the municipality. Under the Domestic (Feral and Nuisance) Animals Act 1994 (DAA), Council may under certain circumstances destroy a dog. This Policy provides guidelines for this decision-making within the Act. POLICY STATEMENT: Criteria for destruction of a dog under the Domestic (Feral and Nuisance) Animals Act 1994 (DAA)

1. Restricted breed dog, which has attacked either human or animal, considering they are not to be outside the premises unless muzzled and attached to the owner by chain, cord or leash;

2. Dangerous dog, which has attacked either human or animal, considering they are not to be outside the premises unless muzzled and attached to the owner by chain, cord or leash;

3. Attack on human, providing visible harm is done, eg. bite wounds, bruising, sutures;

4. Any attack with lesser effect on a child or vulnerable person such as the frail, elderly or disabled;

5. Attack on animal providing the animal is either killed outright or as a result of the attack requires veterinary attention of a serious nature; and

6. Following being found guilty of an offence under the Act in a Magistrate's Court, such other facts and circumstances that it is in the public interest to destroy the dog to protect the public.

Providing that there is enough evidence and no defence available under the Act for the dog's actions. APPEALS PROCESS:

1. Following being found guilty of an offence under the Act in a Magistrates Court, and being notified that Council will apply the criteria, the owner of the dog may appeal in writing addressed to the Chief Executive Officer, Wyndham City Council within seven days of the court appearance.

2. Council's appeals panel will meet to consider the appeal and make a decision based on the Act and the policy.

3. The owner will be notified in writing of Council's decision and reasons."

28. It will be noted that cl 1 concerning appeals contemplates two stages, the first being that the Council "will apply the criteria" meaning a decision that the dog be destroyed, and secondly, in that event, the owner of the dog may appeal in writing to "Council's appeals panel".

31. The defendant was given a copy of the policy guidelines prior to the hearing in the Magistrates' Court. Hence, when the plaintiff pleaded guilty he was aware of the guidelines and of the evidence of the witnesses.

34. In the above letter dated 23 March 2004 the plaintiff was advised that the decision to destroy the dog was based on criteria 1 and 6 in the policy guidelines, a copy of which was enclosed. Criteria 1 was applicable because Jock was a restricted breed dog and, as such, had not been appropriately restrained. The letter noted Council's satisfaction that Jock was an American Pit Bull Terrier and not a "Staffy" as the dog had been registered following the plaintiff's application for registration subsequent to the incident on 1 January 2004. The letter said that Council was concerned that the plaintiff had refused "to acknowledge the true identity of your dog which at the time of the attack, was required to be appropriately restrained, beyond the requirements of a non-restricted breed dog. In providing for the protection of the Wyndham community, Council accordingly does not have confidence in your ability to meet your obligations under the Act".[1] A separate reason for destruction was based on the last criteria in the policy. This lay in "the circumstances of the attack which resulted in significant trauma to both the riders and the horses which were chased for over one kilometre before the dog was restrained". The letter proceeded to advise that notwithstanding the decision, Council at its meeting "last evening" resolved to amend the policy to provide the plaintiff with a right of appeal to a Council Panel in respect of the destruction decision. If the plaintiff wished to appeal he had to lodge a written submission by 31 March 2004 which the Appeals Panel would consider. It was stated that there is no opportunity to appear in person before the Appeals Panel.

37. The statement in the letter as to amending the Policy to provide the plaintiff with a right of appeal is not readily reconcilable with the existing appeals process referred to in the policy guidelines sent to the plaintiff before the hearing in the Magistrates' Court. This was not explained. I raised the point in the course of argument, but neither counsel suggested it had significance, and ignored it accordingly. I proceed on that basis.

40. On 30 March 2004 the plaintiff provided a written submission to the defendant. The submission made a number of points pertaining to the Act, the Council's powers, matters pertaining to the history, care and nature of Jock, alternatives to destruction and reasons to overturn the decision to destroy. The points it made were developed and stated with clarity. It also requested access to the Appeals Panel to make verbal submissions. Without overlooking any part of the letter, it concluded by opposing destruction of Jock, and proposing as an alternative that the plaintiff voluntarily declare Jock a dangerous dog under the Act which would attract the strict regulatory requirements for keeping such a dog.[2] This would allow Council to maintain public safety while delivering a just outcome to the owner of the dog. As to the application of criteria 6 in the policy guidelines, it was submitted that for a number of reasons the decision to destroy should be overturned. Those reasons were: that the plaintiff had only shortly prior to the incident purchased his property and at the time was engaged in improving the fencing to ensure confinement of Jock; Jock was in an unfamiliar environment having been there only for three days; Jock was stressed from fireworks in the area the previous night; Jock was anxious when he escaped as a result of the plaintiff using a hose and water; the predisposition of a dog to chase; Jock might have been teased (not by the horse riders); the low level of the attack; the plaintiff's willingness to take responsibility; the stable nature of Jock; and alternatives available to Council. Among other points made in the body of the submission were these: Jock was a five year old male with a considerable history of success at shows, was regularly exhibited, was trained and well socialised with people; he was registered with Council as an "am staff" (meaning American Staffordshire) which is not uncommon as American Pit Bull Terriers and American Staffordshires are considered by owners to be the same breed, some owners identifying as American Staffordshire to avoid stereo-typing arising from media reporting.

43. It is to be noted that earlier, by a letter to the defendant dated 10 February 2004, the plaintiff had taken full responsibility for the incident, explained he had been increasing the height of the fence when Jock escaped, stated that Jock was an integral part of the family and as such could not be replaced, that Jock was a successful show dog, that while the injury to the horses was minor he recognised the psychological damage the riders may be suffering, and asked the Council to declare Jock a dangerous dog rather than destroy him. In a letter of acknowledgment dated 17 February 2004 the Director of Wyndham Service stated that the proceedings in the Magistrates' Court must take their course and that the issues raised in his letter would be taken into account by the Court and Council.

46. By a letter dated 5 April 2004 the Council advised the plaintiff that the Appeals Panel, after reviewing all the facts, had determined that the dog be destroyed. The letter then referred to and set out criteria 1 and 6 of the criteria for destruction, followed in each case by a series of points, and then a concluding paragraph. Without setting out the terms of criteria 1 and 6 the points in relation to each were stated as follows -

* Council, with an independent veterinarian, has confirmed your dog's breed to be an American Pit Bull Terrier, which is one of the four restricted breeds under the Act.

* The dog attacked continuously for over 1.2 kilometres and never let up in the chase.

* The dog attacked three horses all of which had riders on them.

Criteria 6. * Independent witnesses claimed the dog did not back off until the dog was pulled off the horse. * You have previously failed to register the dog for five years. * When you did register the dog recently, at Council's direction, you made a false declaration about the breed. As you have been found guilty in the Magistrates Court, and the incident has separately met two of the six criteria for destruction under Council's guidelines, your dog will be destroyed by Council."

54. That led the plaintiff to commence the present application for judicial review. Without opposition from the Council, on 8 April 2004, Gillard J restrained the destruction of Jock pending the hearing and determination of the application.

57. The originating motion was amended at the hearing. As amended it seeks a declaration that the decision of the defendant to destroy Jock was unlawful and void, and an order quashing the decision. Relief is sought on the following grounds -

(a) The first decision to destroy -

(i) Between 1 January 2004 and 17 March 2004 the defendant decided to destroy Jock, alternatively decided to destroy Jock if the plaintiff was found guilty of an offence under the Act; the decision was ultra vires as it was made before the discretion to do so was triggered.

(ii) Alternatively, the decision to destroy under s 80(4)(b) was one that no person acting reasonably could have made.

(iii) Alternatively, the decision to destroy was made in breach of the rules of natural justice.

(b) The decision on appeal -

(i) The decision was ultra vires as the defendant had no power to re-open the first decision. Accordingly, the first decision stood but should be quashed.

(ii) Alternatively, the decision to destroy was one that no person acting reasonably could have made.

(iii) Alternatively, the decision to destroy was made in breach of the rules of natural justice.

(iv) Further and alternatively, the defendant failed to take account of -

A. The absence of prior attacks by Jock,

B. The contribution of external factors to the incident, including the shock of fireworks to which Jock was exposed the previous night.

C. The minor nature of the incident.

D. The superficial nature of the injuries to the horses.

E. The absence of any injury or threat to a human.

F. The ease with which Jock was controlled by a strange human when confronted.

G. Alternatives to destruction suggested by the plaintiff which would be in the public interest.

In particulars it was stated that each of these considerations could be gathered from the evidence available to the defendant, in particular the witness statements the defendant took for the purpose of the prosecution and the plaintiff's written submissions.

63. An affidavit explanatory of the matter from the defendant's side was sworn by Craig Murray, the Legislative Services Co-ordinator of the City of Wyndham. He represented the Council at the Magistrates' Court. He was delegated by the Council to make the decision under s 80 of the Act as to whether the Council should destroy any dog that met the criteria in that section. He duly made the decision in this case. He was also a member of the Appeals Committee which considered the plaintiff's appeal. The other members of the Appeals Committee were the Mayor and the Business Services Manager.

66. No deponent was cross-examined on his or her affidavit. The deponents in addition to the plaintiff and Murray were Colin Muir, the President of the American Pit Bull Terrier Club of Australia Inc, and Linda Watson who, according to her affidavit, became aware of the plaintiff's situation through media coverage of the incident on 1 January 2004 and, having an interest in the operation of Councils and their varying attitudes to animal management, took it upon herself to contact the chief executive officer of the defendant and thereafter engaged in communications with the plaintiff and Council officers on the plaintiff's behalf, and Bonnie Jean Norton, the Secretary of the American Pit Bull Terrier Club of Australia Inc as to a conversation with the Mayor of the defendant on 1 April 2004 concerning Jock's fate.

69. While counsel's written submission included ground (a)(i) above, I did not understand him to press the ground in his oral submissions. However, lest I be wrong in that understanding I deal with the ground.

72. The plaintiff's written submission based the contention on evidence of the plaintiff and Muir as to statements of Murray and Bernie Cronin, the Acting Chief Executive Officer of the defendant. That evidence included the fact that during the hearing the Magistrate asked Murray if the dog would be destroyed, to which Murray replied that the Council wanted to destroy the dog. To this, according to the plaintiff, the Magistrate stated to the effect that it was outside his jurisdiction and that the plaintiff could appeal to the Council or go to the Supreme Court.

75. In his affidavit Murray said that he informed the Magistrate that it was Council's view that the dog be destroyed. He explained that in matters of dog attack the Court is always informed of the view of the Council as to destruction of the dog. The Council's decision in this respect was a conditional one. There were two reasons for so informing the Magistrate. First, because Magistrates tend to regard the fact that the dog will be destroyed as mitigatory. In other words, advice of intended destruction of the dog is to the defendant's advantage on sentence. Secondly, the Magistrates' Court has a discretion under s 29(5), on conviction for an offence under that section, to order that the dog be destroyed. While that power may be exercised regardless of the view of the Council, that view is of assistance to the Court in determining the exercise of its discretion. Furthermore, Murray said that, being conditional, Council's decision could change. It is, for instance, possible that something could occur in the running of the case, or on the plea, such as strong credible expert evidence that the dog was not a risk to the community, that could lead to a conditional decision of the Council being changed.

78. This manner of approach both of the Magistrate and the Council was entirely appropriate in my view. Moreover, there is nothing in the Act to suggest the contrary. The view of the Council on the matter of destruction was a relevant matter for the Magistrate to take into account in considering the proper disposition of the case. It was thus proper for the Magistrate to request to be informed of the Council's position on the issue of destruction, and to be so informed by the representative of the Council. Even if the Magistrate had not requested advice of the Council's position on the matter, it would yet remain a relevant matter on a plea in mitigation, and, as such, would be properly advised to the Court. For these purposes there must be a view of Council that can be put forward as the view of the Council at that stage.

81. Having heard the case the Magistrate determined that the appropriate disposition was to adjourn the hearing of the charges without conviction. Having so decided, the power under s 29(5) was not available because the condition for its exercise was a conviction on at least one of the offences under s 29(1AA). In other words, the Magistrate determined on a course that left the decision as to destruction with the Council. That renders understandable the statement of the Magistrate to the effect that he had no power in relation to destruction and that the plaintiff would have to appeal to the Council.

84. Continuing in his evidence, Murray said that shortly after the hearing on 17 March 2004 he made the decision to destroy the plaintiff's dog. His reasons for the decision were stated in the letter to the plaintiff dated 23 March 2004.

87. Murray explained how he proceeds in these matters and did in this case. He does not give anyone, whether the dog owner, the victim or any other person, a hearing. He decides the matter on the material contained in the Council file which includes the prosecution brief, witness statements, any remarks made by the Magistrate, a note of the plea in mitigation and any report on the nature and temperament of the dog if it has been seized and is in the Council's custody. The reason for not giving a hearing to any party is that the decision is strictly an administrative one, and his most common decision is not to destroy the dog "so that there is no need for a hearing in the overwhelming majority of cases". It was, he said, administratively sensible for there to be no hearing for the decision.

90. As mentioned, Murray was not cross-examined. It was not suggested that his evidence should not be accepted, or that it should be rejected in favour of other evidence, with a view to establishing the submission in (a)(i) above or otherwise. And it was recognised that on the present application I am not a trier of fact. I accept the evidence as stating the time when and the way in which Murray went about the task of deciding whether the dog should be destroyed, and his reasons for that decision.

93. For these reasons the submission that the decision to destroy the dog was ultra vires because it was made before the discretion was triggered must have failed.

96. The next ground of attack on Murray's decision was that no reasonable person exercising the power under s 80(4)(b) could have decided that the dog should be destroyed. The submission sought to invoke the principle in Associated Provincial Picture Houses Ltd v Wednesbury Corporation.[3]

99. It was submitted that the Wednesbury principle was applicable for two reasons. First, the decision was unreasonable in the statutory context. Secondly, it was unreasonable for the Council to decide to destroy the dog after the Magistrate had declined to exercise the discretion and to order destruction in identical circumstances.

102. Counsel for the plaintiff abandoned the second reason in the course of his oral submissions. The abandonment was correct, as it is plain that the discretion under s 80(4)(b) remained to be exercised by the Council notwithstanding that the Magistrate did not exercise the power under s 29(5). Moreover, the evidence indicates that the magistrate regarded the matter of destruction as being for the Council to determine.

105. I turn to the first reason which is based on the statutory context. At the outset counsel described the point as being hard to win, and I regard it as having no substance. Nevertheless, I set out the argument.

108. The starting point was s 34 which provides for a council to declare a dog to be a dangerous dog in the circumstances set out in sub-s. (1), para. (a) of which being where the dog has caused serious injury to a person or animal by biting or attacking that person or animal. Sub-section (2) provides that the council must not make a declaration under sub-s (1)(a) if the incident occurred in certain stipulated circumstances none of which is relevant here. Sub-section (3) provides that a council must not declare a dog dangerous under sub-s (1)(a) where a dog has caused injury to a person "unless the injury caused by the dog was in the nature of broken bones, lacerations requiring multiple sutures or cosmetic surgery or the total or partial loss of sensation or function in a part of the body".

111. While acknowledging that the Act did not contain a "hierarchy of penalties", and that the Act did not state criteria to be considered under s 80(4)(b) in deciding whether a dog should be destroyed, it was submitted that as the circumstances in this case would not have supported a decision to declare the dog dangerous under s 34 they could not support a decision to destroy the dog. That was because a decision to declare a dog dangerous was clearly less serious than a decision to destroy. Yet in this case the injuries to the horses were superficial and, hence, not of the character or severity referred to in s 34(3). Counsel submitted that, akin to the sentencing of humans, there should be proportionality in the application of the Act, that the criteria of s 34(1)(a) should be applied in deciding whether to destroy a dog under s 80(4)(b), and, proceeding on that basis, no reasonable decision-maker could have decided that the dog be destroyed.

114. Neither expressly nor inferentially is the criteria in s 34(1)(a) and (3) imported into s 80(4)(b), as criteria required to be satisfied as a condition of exercising the power in the latter section. The respective provisions occur in different parts of the Act and have a separate and distinct operation. Presumably the submission would apply in relation to the power of the Magistrates' Court under s 29(5), but equally neither in its terms or by necessary inference is that power conditioned on or to be read as subject to the approach submitted by counsel. Further, the powers to destroy in s 80 arise in the several circumstances there set out and they are part of a scheme in Division 2 of Part 7 that is concerned with, or triggered by, the circumstance of the seizure of dogs or cats. I see nothing in these provisions, which reflect evident care in their drafting and prior consideration as to the several circumstances attracting the power, that suggests any oversight in incorporating into s 80(4)(b), by reference or otherwise, criteria such as that advanced by counsel for the plaintiff and to which regard must be had by a council in deciding whether to destroy a dog. To accede to counsel's submission would be to write a judicial gloss into a discretion conferred in unqualified terms. Such a discretion is to be exercised justly and equitably with regard to the relevant circumstances of the case. Regarding the matter in that way, in my view the decision that Murray made was one that was open to him as a reasonable decision-maker. That is sufficient reason to hold that the submission based on the Wednesbury principle must fail.

117. I turn then to the third basis upon which the first decision to destroy Jock was attacked. Here the submission was that Murray had been obliged to afford procedural fairness to the plaintiff but had failed to do so, thereby denying him natural justice. The failure was not to give the plaintiff the opportunity to make submissions about the decision prior to it being made. In particular, it was submitted, the plaintiff was not informed that the council would consider the breed and enable him to make submissions about it. He was not informed that the Council would take account of "[his] ability to meet his obligations under the Act", and given the opportunity to make submissions about that. By failing to so inform the plaintiff, the defendant breached its obligation to afford him procedural fairness.

120. The principles pertaining to the requirement to afford procedural fairness were recognised by both counsel and there was no issue as to them. It is sufficient to refer to the following authority. In their joint judgment in Annetts v McCann Mason CJ, Deane and McHugh JJ stated that:[4]

"It can now be taken that, when a statute confers power upon a public official to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment."

This passage was referred to with approval in the joint judgment of Mason CJ, Dawson, Toohey and Gaudron JJ in Ainsworth v Criminal Justice Commission.[5] Also among the authorities is the earlier case of Kioa v West.[6]

125. In short, in the absence of a clear legislative intention it will be taken that an administrative or executive decision-maker acting under statutory power owes a duty to accord procedural fairness, in particular a "hearing" in some form or another to any person likely to be affected by the decision.[7] The question therefore is one of statutory construction.

128. Counsel for the defendant submitted that it was the intention of the Act that the rules of natural justice not apply to a decision to destroy under s 80(4)(b). Hence there was no requirement to afford the plaintiff a hearing.

131. In seeking to establish the submission counsel referred to the following aspects of the legislation. The purpose of the Act is stated in s 1 to be to promote animal welfare, the responsible ownership of dogs and cats and the protection of the environment by providing for (a) a scheme to protect the community and the environment from feral and nuisance dogs and cats, (b) a registration and identification scheme for dogs and cats which recognises and promotes responsible ownership, (c) the identification and control of dangerous dogs, and certain other purposes not relevant to this case. The purposes make it clear that the Act's concerns include the safety of the public from dogs. The Act is not, as counsel said, a mere charter of canine rights to which the safety of persons and other animals is secondary. The Act should be interpreted in a manner that promoted the purpose of protecting the public from dangerous dogs.

134. The Act includes provision for registration of dogs and cats (Part 2), the control of dogs and cats (Part 3), the registration and conduct of domestic animal businesses (Part 4), the boarding of dogs and cats (Part 5), and enforcement and supplementary provisions (Part 7). The provisions for the control of dogs include provisions concerning dangerous dogs, restricted breed dogs, menacing dogs and provisions for offences in a variety of situations including those that arose in this case. The control provisions, and the powers to deal with dogs, are not based on a simple hierarchical situation of the category of offence and related penalty, commencing with the worst case and descending to the least. Rather, the Act defines a factual situation or circumstance and provides a response to it. In the present case the power to destroy is attracted because the case falls within certain provisions of the Act which authorise destruction in stipulated circumstances. And that may be in circumstances where the dog cannot be declared dangerous or menacing, or has not attacked or bitten a person or animal. Reference in this respect may be made to the power of the court to order destruction of a dog in s 29(5) and of a council in s 80(1), (2) and (4), and to other powers of a council in s 34, s 41A and s 41F. Under these powers a dog can be destroyed in circumstances more or less serious than those in the present case.

137. The Council's power to destroy under s 80(4)(b) arose on a finding of guilt in the Magistrates' Court. Until the occurrence of that finding the Council did not have the power to destroy a dog under that section. It is instructive to bear in mind the process that must be gone through before a court makes that finding.

140. The proceeding in the Magistrates' Court will result from the seizure of the dog in question and will involve a hearing as to the circumstances of the alleged offence. The owner of the dog, as defendant in the court proceeding, will have an opportunity to be heard, to examine witnesses, and to say to the Magistrate, or judge on appeal, what he might wish to say as to the alleged defence and on the matter of penalty. If then the defendant is found guilty then ipso facto, the Council's power to destroy the dog is activated. In other words, the condition upon satisfaction of which the power will become available to the Council is a determination of guilt in a judicial proceeding. Further, from such a finding in the Magistrates' Court a defendant has the right of appeal to, and a re-hearing in, the County Court, and a right of appeal to the Supreme Court on a question of law. It is not to the point that there was no appeal in this case. The point is that what I have described is the legislative scheme.

143. Attention was then drawn to the fact that the Act does not provide for review of, or appeal from, a decision of a council under s 80(4)(b) to destroy a dog. Counsel for the defendant submitted that this was to be understood in the context that the power to destroy was subject to there first having been a hearing and determination of the case or, more precisely, the offences alleged to have occurred, in a court. It is in that process that the requirements of natural justice will be met. Once the judicial process is complete with a finding of guilt, the Act intended that the Council's decision be a simple final administrative decision that flowed from that finding.

146. The following factors were relied on as further indicating an intention that the exercise of the power to destroy is not subject to the rules of natural justice. The discretion was absolute and unfettered. The decision maker is not required to find any fact or form any opinion when exercising the power; the power is exercisable on the finding of guilt. There could be no legitimate expectation that the decision will be one way or the other. The decision maker is not obliged to state reasons. There is no provision for notification that the decision will be made. There is no provision for the appearance of the owner, or of a victim or any other interested person. The power is concerned with protection of the public, not punishment of the owner.

149. Further, it can readily be seen that the Council would not be bound by the rules of natural justice in deciding to destroy a dog or cat under s 80(1)(a), (b) or (c). Similarly, it would be inconsistent for natural justice to apply to a decision to destroy under s 80(2).

152. Counsel for the plaintiff submitted that none of these matters warranted the conclusion that the Act intended to exclude the rules of natural justice.

155. In my view the absence of any provision for review of, or appeal from, a decision to destroy under s 84(b), or any provision for a hearing or any process by which the dog owner may put any view (personally or in writing) on the issue, is understandable in view of the factual premise upon which the power is conditioned. That premise is a finding of guilty in the determination of a judicial proceeding against the dog owner arising out of the incident in question. Such a hearing having been had, and it being a hearing in which destruction is an issue because it may be ordered by the court, it may be appreciated why the Act is drawn as it is. That is, there having been a hearing of the matter in a court, and the Council being aware of all that was said by or on behalf of the dog owner, a further hearing by the Council was unnecessary, and to an extent would be a duplication of that which had occurred.

158. All of this is understandable and conduces to a sensible and efficient operation of the Act insofar as s 80(4)(b) is concerned. Yet does this mean that the defendant is correct in submitting that the Act impliedly excludes any requirement of procedural fairness or natural justice at the stage when the Council is considering whether to exercise the power to destroy? I do not think it can be so held in such absolute terms. That is because such a general conclusion would not allow for a case in which for particular reasons fairness and justice require that the dog owner be given an opportunity to make representation on the matter. It might happen, for instance, that something is said or occurs at the hearing in court that leads the Council or the dog owner to further evidence of a relevant fact or matter. Murray referred to the possibility of this in his evidence, although his reference was limited to a matter which conduced against destruction of the dog. But what if the fact or circumstance tended in the other direction, say as a result of a person coming forward with hitherto unknown evidence of bad behaviour of the dog? It is a notorious fact that it is difficult if not impossible to foresee the range of situations that may occur in life, for they are often unexpected. It is sufficient caution against finding a general intent to exclude requirements of procedural fairness or natural justice that it is readily to be envisaged that cases may arise in which fundamental notions of fairness and justice would ordinarily lead to a conclusion that such requirements be observed. Whether that be by a hearing in person or the opportunity to provide a written submission or other supporting material is another question. For these reasons it seems to me that the defendant's blanket submission as to the exclusion of the requirements is too wide and, as such, cannot be accepted.

161. I should add that the reason given by Murray for not affording a hearing, that in the overwhelming majority of cases the decision is not to destroy the dog is not in itself a sufficient reason for not giving a hearing, as he put it. Indeed the point is a double inch sword as it serves to establish that there would be little inconvenience in hearing the dog owner in the minority of cases in which he is considering destruction. The formation of the conditional view as to destruction will have served to filter the cases and identify those in which destruction seems appropriate. There is no evidence as to the number of such cases or of factors which might establish such a degree of administrative inconvenience as to render impractical even the affording of an opportunity to provide a written submission.

164. In light of these considerations I turn to the question whether the first decision was made in breach of the rules of natural justice.

167. Murray made this decision shortly after the hearing in the Magistrates' Court and without giving the plaintiff an opportunity to be heard or make a submission in writing. There is no evidence of any fact or matter that came to Murray's attention subsequent to the hearing in court and which he considered in arriving at his decision. On the evidence it appears to be what might be considered the usual case envisaged by the Act in that respect.

170. The decision was made on two separate grounds. While it was generally submitted that Murray should have given the plaintiff the opportunity to address submissions, the particular submission concerned the first of the two grounds, based on criteria 1. That ground concerned Jock's true breed, as distinct from the breed of his registration. The plaintiff was at all times aware of those matters, and what he takes issue with is the conclusion that the wrong statement of breed in the registration that occurred on his application following the incident in question led the Council to have no confidence in his ability to meet his obligations under the Act. The plaintiff had wrongly declared Jock's breed on the registration form. The breed declared was not a restricted breed dog, which Jock was. The point made in the letter was that as a restricted breed dog Jock had to be kept restrained as required by the Act. The false declaration misled the Council. This conclusion or inference was drawn on facts and matters which existed prior to the hearing in court. The same is true of the decision based on criteria 6.

173. In my view in the circumstances of this case the Council was not required to afford the plaintiff the opportunity of making submissions on the question of the destruction of Jock.

179. The first ground here is that the decision of the Appeals Panel was ultra vires because the Act did not authorise or otherwise provide for an appeal. Counsel put the point briefly and referred to no authority that supported the submission. Section 80(4)(b) is a conferral of power on "the Council" but without addressing how and in what manner or by reference to what procedures it is to be exercised. The regime adopted of a decision by Murray, as the relevant officer pursuant to delegated authority, and an appeal to a Council committee, may be seen as a sensitive and not inappropriate way of handling such matters. It affords an expeditious decision by Murray and, in favour of any dog owner who might wish to do so in the event of Murray deciding that his or her dog be destroyed, a right of appeal to a panel which will reconsider the matter. In my view, in principle, the process is not precluded by the Act.

182. The second ground is that the decision was one that no person acting reasonably could have made. This was for the same reasons that the first decision was unreasonable. For the reasons given above I reject the submission. The decision was one that plainly was open to be made.

185. It is convenient to then refer to the fourth ground that the Appeals Panel failed to take account of the matters set out at [13] above. In view of the evidence of Murray that in fact these matters were considered, counsel abandoned this ground.

188. That leaves the third ground that the decision was made in breach of the rules of natural justice. On this ground counsel for the plaintiff acknowledged that the content of the requirements of natural justice varied with the circumstances of the case. Counsel submitted that in the circumstances of this case procedural fairness required that the plaintiff be given an oral hearing. That was because the reasons of the Appeals Panel reveal that the plaintiff's credibility and reliability were in issue, and that conclusions of fact were drawn which were contrary to the evidence provided to the plaintiff. In such circumstances the failure to provide the plaintiff with an oral hearing resulted in him being denied procedural fairness. I note that counsel expressly did not submit that the presence of Murray on the Appeals Panel established actual or apparent bias or that that presence in itself vitiated the decision on appeal. He pointed to the dangers in so constituting the Panel but did not seek to make a case based upon that matter.[8]

191. The weakness in the submission became apparent at an early stage of counsel's argument when he referred me to the evidentiary basis of the submission. He first referred me to the two conclusions of fact which were said to be contrary to the evidence provided to the plaintiff. These conclusions were in certain sentences in paras 7 and 8(f) of Murray's affidavit. They purported to state what had happened in the incident concerning one of the riders. Counsel said that the evidence was not contained in the witness statements which had been provided to the plaintiff prior to the hearing in the Magistrates' Court on 17 March 2004. Therefore, he said, the plaintiff had no notice of the evidence. However, on perusing the witness statement of the rider in question, Olivia Leah Moore, it was immediately apparent that it provided a sufficient basis for the impugned account. So apparent was this that immediately upon this being drawn to counsel's attention he successively, as to paras 7 and 8(f) of Murray's affidavit, abandoned the submission. That is, the submission that the Appeals Panel had drawn conclusions of fact contrary to the evidence was abandoned.

194. Counsel then turned to the submission that the credibility and reliability of the plaintiff were in issue. Here the submission referred to para 8(i) and (j) of Murray's affidavit. In these paragraphs Murray dealt with assertions of the plaintiff (in para 21(a) and (b) of his affidavit sworn 14 April 2004) of irrelevant considerations considered by the Appeals Panel. There were two such considerations, each of which related to the decision under criteria 6. The considerations were: the failure to register the dog for five years and the false declaration of the dog's breed. In para 21(a) the plaintiff explained the former matter in this way. He had been living in the area of the Council for less than a week when the incident occurred, although he had previously lived in Wyndham in 1999. Between 1999 and 2003 Jock lived on a farm at Echuca due to the plaintiff's employment which required him to travel around Australia. As to the second consideration, in para 21(b) the plaintiff said that his statement that Jock was an "Amstaff" on the registration form had nothing to do with Jock's effect on public safety.

197. In his affidavit Murray said, in relation to the decision of the Appeals Panel that the fact that the dog was unregistered was of little weight. That the plaintiff had not fulfilled his obligations under the Act affected the Panel's confidence in the likelihood of the plaintiff fulfilling his obligations under the Act as to dangerous dogs to only a small degree. More significant in this respect was the failure to comply with the restricted breed provisions, which are similar to the dangerous dog provisions.

200. As to the second consideration concerning the false registration, the Panel placed some weight on this. The registration includes a declaration that the contents of it are true and correct. The plaintiff falsely declared the breed of the dog. That had the effect of misleading the Council as to the dog's true breed, and that it was a restricted breed. That had consequences for the way in which the dog was to be kept. That was because the Act required restricted breed dogs to be kept in a certain manner. This caused the Panel to view the plaintiff as a person whose reliability was an issue.

203. It is pertinent to mention here a submission of counsel for the plaintiff concerning the reference to confirmation of Jock's breed by an independent veterinarian, under criteria 1 in the letter dated 5 April 2004. Counsel identified this statement as an allegation that Jock was a restricted breed dog, which allegation had not been put to his client. The defendant had not informed him of the opinion of the independent veterinarian or given him an opportunity to address submissions upon it. It is important to remember that on the plaintiff's application prior to the hearing in the Magistrates' Court, Jock had been registered with the incorrect breed and the plaintiff had let the erroneous declaration of breed stand. The plaintiff having pressed the matter to an appeal, and his written submission not stating the true breed of the dog, the defendant sought the opinion of an independent veterinarian as to Jock's breed. The opinion confirmed Murray's view that Jock was an American Pit Bull Terrier which view was stated in the letter dated 23 March 2004.

206. When counsel made his submission I had the impression that it was a point about nothing, as the originating motion stated that Jock was an American Pit Bull Terrier, and I asked counsel whether Jock was in fact an American Pit Bull Terrier. Counsel immediately conceded that Jock was of that breed, and abandoned the submission. In other words, it was conceded that Murray and the Panel were correct in their view as to the breed of the dog, and in regarding the plaintiff's declaration of breed as wrong. Counsel said, in an apparent attempt to explain the plaintiff's position, that at the time the plaintiff had disputed the breed.

209. In these circumstances it seems to me to be correct that, as counsel for the defendant submitted, it was not so much the credit of the plaintiff that was in issue, as an assessment of his reliability as a responsible dog owner. Reliability in that sense was an obvious consideration. Once it is accepted that Jock was a restricted breed dog, as was finally conceded to be the case in the argument before me, the considerations set out in Murray's affidavit are of the type readily to be anticipated. They are the product of the plaintiff's own making.

212. In the circumstances I do not accept the submission of the plaintiff that matters of credibility and reliability required that the plaintiff be given an oral hearing. Indeed I do not see that a matter of credibility was involved.

215. Finally, it was submitted that by reason of the Appeals Panel having taken into account several matters without the plaintiff having notice of them or being heard upon them, there had been a failure to accord him procedural fairness. I deal with each matter in turn.

218. Commencing with the decision under criteria 1, the only matter complained of was the reliance on the opinion of an independent veterinarian without notifying the plaintiff of the existence or content of that opinion or giving him an opportunity to address it. As mentioned above, counsel abandoned this contention, correctly in my view. It was entirely without substance or merit and the product of the plaintiff's false declaration.

221. Moving to the decision under criteria 6, counsel complained of two matters. First, the reference to evidence of independent witnesses without informing the plaintiff of the identity of the witnesses or the content of their testimony, or giving the plaintiff an opportunity to address it. None of the witness statements provided to the plaintiff in exact terms state that the dog did not back off until it was pulled off the horse. Counsel relied on statements of witnesses as to Jock having "just laid down", "just lay down" and "just laid down and rolled over".

224. The second matter was the reference to the failure to register for five years, without informing the plaintiff that it was of that opinion, or giving him an opportunity to address on it. I have referred to this matter, and evidence of the plaintiff concerning it, above. The plaintiff deposed that in a responding submission he would have shown that he was not responsible for registration of Jock in that period and that he and Jock did not live within Wyndham for the majority of that period.

227. In relation to these two matters counsel for the defendant submitted as follows. The claim of independent witnesses was to be found in the witness statement of Olivia Leah Moore. The failure to register for five years was of little weight, as stated by Murray, and could be put aside accordingly.

230. In her statement Moore described how Jock chased and attacked the horses. Her account came to a stage at which her horse Fury stopped and she put her right foot on the ground. The dog left another horse, Sadie, on which it had pounced, and "ran over to me. I stood on my left foot and kicked at the dog. I kicked it in the head and it came closer. Chrystal then rode up and put Bobby between the dog and I. The dog jumped onto Bobby, b[i]t him and was just hanging on in the air. Bobby kicked off and it fell off. Kirsten rode over to the people and the dog followed. A Chinese man who had a belt in his hand cracked the belt and the dog just laid down and rolled over".

233. The incident concerning Bobby is also referred to in the statement of another rider Kirsten Leigh Hopla who was riding Sadie. She referred to the dog biting Bobby on the inside of his upper leg. She said: "Bobby kicked out and I think he got the dog because it let go. The dog tried to bit[e] Bobby again and he kicked out. The dog then bit Bobby on the bottom of his leg near the hoof and Bobby pulled his leg back". She then rode her horse in front of Bobby "and the dog turned on Sadie again ... the dog jumped up and bit Sadie on the rump and her rump began to go down. I managed to get her around the corner and went towards the fence. Sadie hit the fence and bounced back off but the dog bounced further than Sadie and let go. A man appeared pulled off his belt and held it in the air as if to hit the dog and it just lay down".

236. It is not said in the statements that the dog was "pulled off the horse". There is, however, evidence that Jock was hanging off Bobby, as a result of biting it, and that the horse kicked and the dog fell off. On the evidence the probability is that the dog fell off as a result of a physical force introduced by the horse kicking out, either because a leg contacted the dog and struck him off or the violence of the movement shook the dog off.

239. The expression "pulled off the horse" might connote the act of a person or other force being applied to the dog and lifting it away from the horse, but that in my view is not the only physical circumstance that the words used could comprehend. To pull something is to exert force so as to cause a movement as by the act of pulling. What the horse Bobby did was not pulling at the dog in that sense but it did involve the use of force for the purpose of removing the dog and, on the evidence, it succeeded. This may also be said of the incident concerning Sadie who rid herself of the dog by hitting the fence; the physical force thus applied bounced the dog off the horse.

242. The impugned statement was no more than a pithy reference to the evidence, assuming it was a reference to the evidence I have set out concerning Bobby and/or that concerning Sadie, and was in the form of a summary statement as distinct from a precise setting out of the evidence in question. In my view it is wrong to read the statement in the letter as though it was a precise statement of the words of a witness. On balance the evidence of the witnesses provided a basis for the statement that the dog was pulled off the horse. That was the effect of what happened.

245. The submission is that because evidence in the terms of the statement is not found in the witness statements the Appeals Panel had reference to other witnesses. However, in his affidavit Murray identified the materials that the Appeals Panel considered. They were the prosecution brief, including the witness statements, the guidelines, and the plaintiff's submission. I am satisfied on this evidence, on which Murray was not cross-examined, that the independent witnesses referred to in the letter dated 5 April 2004 were those who had given the witness statements for the purpose of the prosecution and of which the plaintiff had been given a copy. I reject the submission.

248. That brings me to the second matter, the failure to register for five years. While this was of little weight from the point of view of the Panel's decision, it nevertheless was mentioned in the letter and is thus seen to be explanatory of the decision under criteria six. The point had not been referred to in the letter dated 23 March 2004, nor was it dealt with in the plaintiff's written submission. The non-registration occurred in years prior to the incident and eventual registration in 2004. It is not surprising that it arose as a point but it seems to have arisen as a new point at the appeal stage and without the plaintiff being aware that it had arisen as a consideration. In my view as a matter of fairness he should have been given an opportunity to state his position on the matter, whether personally or in writing. The failure to afford him that opportunity means that he was denied procedural fairness. I do not read the Act as intending to exclude requirements of procedural fairness in such circumstances.

251. The defendants submitted that in the event of such a conclusion the court should exercise its discretion against setting the decision aside. That was because the decision was based on alternate grounds, and there was no material prejudice as the decision was the only reasonable one open in the circumstances. I do not accept this submission. It is true that the decision was based on two of the criteria and that there is no basis of attack in relation to the facts stated under criteria 1, but it is possible that the plaintiff's answer in relation to the criteria 6 impugned factor may have influenced the Appeals Panel overall. I cannot speculate on that.

254. For these reasons the decision of the Appeals Panel should be set aside and the matter remitted for reconsideration. As to that reconsideration, there is wisdom in permitting an oral hearing, as this case demonstrates, but I do not consider it necessary that the plaintiff be afforded a hearing in person as distinct from an opportunity to place a submission before the Panel. However the matter be dealt with the plaintiff should be aware of that which is before the Panel, and that which he should address.

257. I will hear counsel on the form of the orders and costs.

[1] For the provisions for the restraint of restricted breed dogs see Division 3B of Part 3 of the Act.

[2] See Division 3 of Part 3 of the Act.

[3] [1947] EWCA Civ 1; [1948] 1 KB 223 at 230, 233-234; and see Re Aala, ex parte Refugee Review Tribunal [2000] HCA 57; (2000) 204 CLR 82 at 100 - 101 per Gaudron J.

[4] [1990] HCA 57; (1999) 170 CLR 596 at 598.

[5] [1992] HCA 10; (1992) 175 CLR 564 at 576.

[6] [1985] HCA 81; (1985) 159 CLR 550 at 584 per Mason J.

[7] See the reference to the principle in Keller v Braeside City Council [1996] VicRp 23; [1996] 1 VR 356 at 378 per Batt J.

[8] Cf Calvin v Carr [1979] UKPC 1; [1980] AC 574.