1. In Proceeding G793/2011, concerning the dog, 'Kooda', the respondent's decision is affirmed.
2. In Proceeding G829/2011 concerning the dog 'Bear', the respondent's decision is affirmed.
3. The above orders 1 and 2 are stayed for 28 days from the date of these orders, to allow the applicant to decide whether or not he wishes to appeal these orders to the Supreme Court of Victoria.
4. Order 3 above will cease to have effect, before 28 days have elapsed, if the applicant advises the respondent in writing that he does not intend to appeal these orders.

For Minister for Agriculture and Food Security (18 April 2012)

1. In early 2011, Mr Laffan bought two dogs. He named them Kooda and Bear. They were supplied by a person who is not a registered dog breeder. The supplier stated the breed of both dogs is 'American Bulldog/Bull Mastiff Staffi Cross'. He said a ranger with the Shire of Campaspe had stated neither dog has, 'any Pit Bull in it'.
2. Changes to the law concerning restricted breed dogs were coming into force on 1 October 2011. This received much publicity. In late September, Mr Laffan became concerned about whether there was an issue with his dogs. He went to the Moira Shire Council offices. He met with Mr Bob L'Anson, a Council law enforcement officer. They agreed Mr L'Anson would inspect the dogs the next day.
3. On 26 September 2011, Mr Bob L'Anson inspected the dogs at Mr Laffan's home. Mr L'Anson formed the view that both dogs were restricted breed dogs, as defined by the Domestic Animals Act 1984 Vic (Act). If the dogs were restricted breed dogs, as they were only seven months old at the time, it was not legally possible to register them.
4. Under s 98A of the Act, Mr L'Anson declared each dog a restricted breed dog, describing each of them as a 'pitbull/mastiff cross'.
5. He gave Mr Laffan the written declarations and seized the dogs. While Mr Laffan and his partner, Ms Graham, were very upset about this, Mr Laffan helped Mr L'Anson put the dogs in the Council van.
6. Mr L'Anson advised Mr Laffan, that unless he applied to VCAT for review of the declaration, the dogs would be put down.
7. Subsection 98(2AA) of the Act enables the owner of a dog to apply to VCAT 'for review of a decision by an authorised officer under s 98A to declare the dog a restricted breed dog'.
8. Mr Laffan applied to VCAT for reviews of the decisions to declare the dogs to be restricted breed dogs.
9. We treat Mr Laffan's applications as creating VCAT Proceeding G793/2011, concerning the dog, 'Kooda' and Proceeding G829/2011 concerning the dog 'Bear'. The applications were heard at the same hearings. These reasons discuss legal and procedural issues with respect to both dogs. We then separately record the evidence for each dog and our decision about each dog.
10. Our task is to review the decisions to declare the dogs to be restricted breed dogs. The dogs in this case are not registrable under the Act. The consequence of this is that if they are restricted breed dogs, the Council has the power to put the dogs down.

If an authorised officer is of the opinion that a dog is a restricted breed dog, the authorised officer may make a declaration to the effect that the dog is a restricted breed dog.

1. Such a declaration has effect throughout Victoria and cannot be revoked, amended or otherwise altered: sub-s 98A(3).
2. A 'restricted breed dog' is relevantly defined in sub-s 3(1) of the Act to mean:

....(e) American Pit Bull Terrier (or Pit Bull Terrier);

1. There are no definitions of 'American Pit Bull Terrier' or 'Pit Bull Terrier' in the Act.
2. On 26 September 2011, when the authorised officer made the declarations, sub-s 3(3) of the Act provided:

A dog that falls within a standard prescribed by the regulations 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.

1. However, there were no regulations prescribing any such standard. There were 'Guidelines for identification' (2006 edition) of restricted breed dogs published by the Department of Primary Industries. However, they had no legislative force.

1. On 1 September 2011, the 'Standard for Restricted Breed Dogs in Victoria' was gazetted in the Victorian Government Gazette (Standard). At page one of it, on 31 August 2011, Peter Walsh as the Minister for Agriculture and Food Security, purported to approve it 'under sections 3(3) and 3(4) of the [Act]...'. However, as at 31 August and 1 September 2011, sub-s 3(4) had not commenced. Further, as noted above, sub-s 3(3) only referred to 'a standard prescribed by the regulations'. The amendment to that subsection substituting the words 'an approved standard' had not commenced either.
2. The above changes were made by the Domestic Animals Amendment (Restricted Breeds) Act 2011 (Vic) (Amending Act). By virtue of the Amending Act (s 3), with effect from 30 September 2011, the subsections now provide:
   • (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]
3. The Amending Act was passed when it was assented to (on 31 August 2011) but it did not come into operation until 30 September 201: see s 2 of that Act.
4. The hearing occurred over two days, with a directions hearing in between. At the outset, Mr Appudurai, appearing for the Council, raised the issue that (although gazetted) the Standard was not in force when the declarations were made on 26 September 2011. He submitted VCAT should follow the case of Ungar v City of Malvern [1979] VicRp 25; [1979] VR 259 (11 October 1978) (Ungar) and apply the Standard in reviewing the declarations.
5. We made a verbal ruling to the effect that the Standard applied. However, because this was the first case under newly amended legislation, we invited submissions from the parties on this point before finalising our ruling in writing. At the respondent's request, we invited the Minister for Agriculture and Food Security to make a submission about the application of ss 13 and 14 of the Interpretation of Legislation Act 1984 (Vic) (ILA). This occurred on 18 April 2012.

1. As to the making of the Standard before the amendments supporting it came into force, s 13 of the ILA assists. (Mr Appudurai, for the Council, briefly referred to this provision in his opening submission, as did Mr Wood for the Minister). It applies where an Act does not come into operation immediately on the passing of the Act but will, on its coming into operation, amend another Act to confer power under the other Act to make subordinate instruments or instruments of a legislative or administrative character, or to do any other thing: sub-s 13(1).
2. Under sub-s 13(2), unless the contrary intention appears, the power (to make the instrument or do the thing) 'may be exercised at any time after the passing of the Act but its exercise does not confer a right or impose an obligation on a person before the coming into operation of the Act or provision....' The exceptions to that general rule (expressed in sub-s 13(2)) are not relevant here.[2]
3. We agree with Mr Wood's submission that the approval and gazettal of the Standard before the Amending Act came into operation on 30 September 2011, are supported by sub-s 13(2). We also agree that, by virtue of sub-s 13(2), the Standard did not operate until 30 September 2011.
4. In response to a question, Mr Wood mentioned that the ILA's provision for Acts to commence at the beginning of the day on which they are to come into operation may assist. However, this provision (sub-s 11(1)) is not relevant because it does not relate to when an Act is taken to be passed, only when it is to be taken to come into operation.
5. Applying the presumption of regularity, we have assumed (in the absence of evidence to the contrary) that the Amending Act was passed on 31 August 2011, before the Minister approved the Standard on that date. See for instance McLean Bros & Rigg Ltd v Grice [1906] HCA 1; (1906) 4 CLR 835 at 850. [3]

Review of Declarations Made Before 30 September 2011

1. The declarations were made on 26 September 2011, before the Standard came into force on 30 September 2011. Does VCAT apply the Standard in reviewing the declarations?
2. Mr Wood first noted that the normal rule is that, in exercising its review jurisdiction, the Tribunal applies the law as it stands at the time of VCAT's decision, and not the law as it stands at the time of the original decision. We agree.
3. Secondly, he submitted that this normal rule is subject to the operation of s 14 of the ILA, specifically that, unless there is a contrary intention, an amendment to an Act shall not affect 'any right...acquired' under that Act. However, he submitted that s 14 does not apply here because the amendment made 'simply transferred the power to establish a standard, satisfaction of which would deem the dog to be a dog of a certain breed, from the Governor to the Minister'.
4. There are no transitional provisions in the Amending Act. The ILA relevantly provides in sub-s 14(2) that where an Act or a provision of an Act is amended, the amendment shall not, unless the contrary intention expressly appears:
   • (d) affect the previous operation of that Act or provision or anything duly done or suffered under that Act or provision;
   • (e) affect any right, privilege, obligation or liability acquired, accrued or incurred under that Act or provision;....
5. We agree that the relevant amendments supporting the Standard do not affect any right acquired under the Act. We conclude this because Mr Laffan had no right or privilege as such acquired, accrued or incurred under the Act in relation to Bear and Kooda. Therefore, the prohibition in paragraph (e) of sub-s 14(2) of the ILA does not apply.
6. Mr Wood did not refer to paragraph (d) of sub-s 14(2). Neither did the Full Court in Ungar, instead focussing on the equivalents of paragraphs (e) and (g) of sub-s 14(2). Notably, the Full Court also cited with approval Dixon CJ's statement of the common law presumption against retrospectivity: pages 262 to 263 of Ungar.
7. The application of s 14 and the issue of whether VCAT applies the Standard has been considered and decided by this Tribunal (comprising Deputy President Lambrick) in the similar case of Persson v Knox City Council [2012] VCAT 273, 14 March 2012 (Persson). We provided the parties with a copy of this decision when it was published.
8. In Persson, Lambrick DP applied the reasoning in Ungar to conclude that the law existing at the time of the substantive merits hearing in the Tribunal (after 30 September 2012) applied to its review of a declaration made under s 98A of the Act on 25 July 2011. Consequently, the Standard was applied.
9. It is not necessary to repeat the reasoning in that decision here or to consider this issue further. If the same reasoning is applied, the Standard applies to the Tribunal's review of the declarations relating to Bear and Kooda, and the declarations may be equated to the permits in Ungar. As a matter of comity, we follow the decision in Persson to conclude that the Standard applies to these reviews.

1. Part 1 of the Standard is headed American Pit Bull Terrier (APBT), Pit Bull Terrier. The opening words under Part 1 are as follows:

A dog that meets the description of a dog in this Part is an American Pit Bull Terrier; except a dog in respect of which the owner has one of the following certificates stating that the dog is an American Staffordshire Terrier:

(a) A pedigree certificate from the Australian National Kennel Council;

(b) A pedigree certificate from a member body of the Australian National Kennel Council;

(c) A pedigree certificate from a national breed council registered with the Australian National Kennel Council;

(d) A certificate signed by a veterinary practitioner.

1. The Standard goes on to list the physical appearance, characteristic by characteristic. For example, the first few characteristics deal with the appearance of a dog's head, neck and forequarters. The elements of the Standard are set out in Appendices A & B below.

1. This was the first hearing by VCAT concerning a declaration of a dog as a restricted breed dog where the Standard was in force.
2. On 14 February 2012, we heard the application. Mr Laffan represented himself, assisted by his partner and mother. Council was legally represented. Given our responsibility to assist Mr Laffan as an unrepresented party, we took an interventionist approach in terms of questioning the Council's witnesses (Mr L'Anson and Ms Greenwood) and questioned submissions put on behalf of the Council.
3. At the end of the hearing, Mr Laffan said he had not expected the hearing to be so formal and did not understand the issues he would have to address. He sought an opportunity to present further evidence. Also, the issue of the precise measuring of the dogs' dimensions had been raised. We allowed the parties time to submit further documents.
4. After the hearing, Mr Laffan wrote to VCAT requesting a further hearing. He said he intended to be legally represented and wished to provide further evidence. We scheduled a directions hearing on 27 February 2012. The directions hearing resulted in a futher hearing scheduled on 18 April 2012. Mr Laffan foreshadowed the filing and serving of witness statements and (if required) the witnesses being available for cross-examination.
5. In late March, Mr Laffan asked by letter that the 18 April hearing be adjourned to give him more time to prepare. Council opposed the request. VCAT ordered the hearing would proceed on 18 April noting, 'This leaves the applicant with almost a month from the date of these orders to prepare for the final hearing.'
6. At the 18 April 2012 hearing, counsel for the Minister made submissions as described above. Mr Laffan appeared, again supported by his partner and mother. He had not filed any witness statements. He sought a further adjournment. Council opposed it. We refused his request, saying while we understood the difficulties he faced, he had been given ample opportunity to put his case. We reserved our decision.

PROCEEDING G793/2011, CONCERNING THE DOG 'KOODA'

1. Mr L'Anson, the authorised officer who declared Kooda a restricted breed dog gave evidence and was cross-examined. He has 22 years experience as a police officer and has been an authorised officer since 2005, employed by the Council. He has previous experience in seizure of dogs, referring to the Department of Primary Industry Guidelines and the Act. He had attended training seminars concerning the identification of restricted breed dogs, with reference to the Standard.
2. As we record in the attached 'Appendix A - Comparison of evidence about Kooda and the Standard', in Mr L'Anson's opinion, with reference to his inspection of Kooda and photographs provided to VCAT (including Exhibit E, photographs 1 to 6), Kooda 'substantially' complies with the Standard. He gave evidence that his 'immediate reaction' on first seeing Kooda was that he was a restricted breed dog, due to his height, head shape, muscle definition and length.
3. Mr L'Anson confirmed he later completed the 'Draft Restricted Breed Dog Identification and Declaration Process Form' (Checklist) which was provided to VCAT. He says this form was drafted by Council. It sets the Standard out in a table format.
4. Mr L'Anson used the one form to refer to both Kooda and Bear as they were from the same litter and are in many respects similar.
5. He went through the Standard's requirements, 'line by line'. His colleague Ms Greenwood was with him. She played the 'devil's advocate', in a sense representing Mr Laffan. Mr L'Anson concluded Kooda then complied with all aspects of the Standard, except that his eyes, ears and tail characteristics did not then comply. Also, at the time he declared Kooda a restricted breed dog, he did not complete page two of the Checklist (height and weight). This was because in late September 2011, Kooda was not yet an adult, being 7 months old. The Standard says that whilst it is based on a fully mature animal, it would be expected that an individual puppy would reach the prescribed overall balance desired by the age of approximately 9 months. However, body maturity and strength would not be achieved until much later - maybe 2 to 3 years plus.
6. Shortly after Mr L'Anson seized the dogs, he met with Mr Laffan to discuss the Standard. Mr L'Anson said that at that time, Mr Laffan agreed Kooda complied, except with respect to Kooda's ears and tail.
7. We do not detail Mr L'Anson's opinion about how Kooda may be described in terms of breed, including evidence he gave about the characteristics of Kooda's parents. The question for us is whether based on appearance and characteristics (not breed) Kooda falls within the Standard.
8. By the hearing on 18 February, Kooda was over 11 months old. In Mr L'Anson's opinion, Kooda had matured and his eyes and ears complied and his tail substantially complied with the Standard.
9. Measurements as at mid February 2012 (Kooda was then over 11 months old) were later provided to VCAT. Kooda's weight complied. His height at 53.5 cm was marginally above the Standard's upper limit (53 cm). He was slightly longer (58 cm) than he was high. The distance withers to elbow was 25 cm and elbow to ground was 31 cm.
10. In cross-examination, Mr Laffan asked Mr L'Anson about Kooda's breed. Again, we do not record Mr L'Anson's responses, as this is not relevant to our decision. Mr L'Anson agreed he had advised Mr Laffan that he may wish to seek DNA evidence to dispute the declaration. Mr L'Anson was trying to assist Mr Laffan. Mr L'Anson is now aware DNA evidence is no longer relevant to the classification of a dog as a restricted breed dog.
11. Ms Greenwood is a Senior Enforcement Officer, also employed by Council. She gave brief evidence. She agreed with Mr L'Anson's evidence and shared his opinion that Kooda falls within the Standard. We essentially relied on Mr L'Anson's far more detailed evidence.
12. Mr Laffan's evidence included:
    • (a) A statutory declaration from Mr Michael Brown who sold the dogs (to another person who apparently on sold the dogs to Mr Laffan). Mr Brown did not give evidence at the hearing. His declaration says in part that both Kooda and Bear, who are from the same litter;

... are American bulldog/bull mastiff x staffy. The father is an American bulldog/bull mastiff and the mother is a staffy. There is no pitbull in either of the parents. Both parents have been inspected by the local state ranger and law enforcement officer and he has cleared both parents from having any pitbull in them whatsoever.

(b) A document titled, 'Buying Animals' defining the breed as 'American bulldog x Bullmastiff'.

(c) A registration certificate from the Royal Agricultural Society of New South Wales trading as the Australasian Animal Registry. It records Kooda's breed as Mastiff X and states, as a pro forma heading, 'This animal has not been declared dangerous menacing or a restricted breed'; and

(d) Documentation from the Numurkah Veterinary Clinic, showing vaccination and micro-chipping and stating the breed to be Mastiff X.

1. Under section 51(2) of the Victorian Civil and Administrative Tribunal Act 1998, in determining this application for review, VCAT may

set aside the decision under review and make another decision in substitution for it; or

set aside the decision under review and remit the matter for re-consideration by the decision-maker in accordance with any directions or recommendations of the Tribunal.

1. VCAT must determine whether the decision under review (the declaration) was the correct one by making an independent assessment and an independent determination of the question (Bausch v Transport Accident Commission 11 VAR 117 at 137).
2. In our opinion, Kooda substantially complies with the Standard's requirements for an American Pit Bull Terrier. We are therefore of the opinion Kooda is properly declared a restricted breed dog.
3. Therefore, we affirm Mr L'Anson's decision to declare Kooda a restricted breed dog.
4. The persuasive relevant evidence before us is from Mr L'Anson and Ms Greenwood, as summarised in Appendix A to these reasons. While we note (in Appendix A) that Kooda does not entirely comply with the Standard (see comment about ratio withers to elbow v elbow to ground) we do not see this one aspect of non-compliance as significant to the overall classification. For the same reason, we do not regard the fact that Kooda is half a centimetre higher than the indicated maximum height as significant.
5. While Mr Laffan did his best to put evidence before us, what he did provide centred on untested opinions as to Kooda's breed, which is not relevant to our decision.
6. The various documents that Mr Laffan produced did not fall within any of the exceptions to the application of the Standard by way of certificates as discussed above.
7. Finally, we place no weight on whether Mr Laffan agreed with Mr L'Anson at a meeting between them, shortly after Kooda was seized, that Kooda fell within the Standard. At that time, Mr Laffan was not familiar with the Standard and could not be expected to have an informed opinion.

PROCEEDING G829/2011 CONCERNING THE DOG 'BEAR'

1. Mr L'Anson and Ms Greenwood gave evidence.
2. As we record in the attached 'Appendix B - Comparison of evidence about Bear and the Standard', in Mr L'Anson's opinion, with reference to his inspection of Bear and photographs provided to VCAT (including Exhibit E, photographs 7 to 12), Bear 'substantially' complies with the Standard. He gave evidence that his 'immediate reaction' on seeing Bear was that he was a restricted breed dog, due to his height, head shape, muscle definition and length.
3. Using the same checklist used for Kooda, Mr L'Anson concluded Bear then complied with all aspects except that his eyes, ears and tail characteristics did not comply. Also, at the time he declared Bear a restricted breed dog, he did not complete page two of the Checklist (height and weight). This was because in late September 2011, Bear was not yet an adult, being 7 months old. The Standard says that whilst it is based on a fully mature animal, it would be expected that an individual puppy would reach the prescribed overall balance desired by the age of approximately 9 months. However, body maturity and strength would not be achieved until much later - maybe 2 to 3 years plus.
4. Shortly after Mr L'Anson seized the dogs, he met with Mr Laffan to discuss the Standard. Mr L'Anson said that at that time, Mr Laffan agreed Bear complied, except with respect to Bear's ears and tail.
5. We do not detail Mr L'Anson's opinion about how Bear may be described in terms of breed. The question for us is whether based on appearance and characteristics (not breed) Bear falls within the Standard.
6. By the hearing on 18 February, Bear was over 11 months old. In Mr L'Anson's opinion, Bear had matured and his eyes and ears complied and his tail complied with the Standard.
7. Measurements as at mid February 2012 (Bear was then over 11 months old) were later provided to VCAT. Bear's weight complied. His height at 52 cm was marginally under the Standard's upper limit (53 cm). He was slightly longer (59 cm) than he was high 952 cm). The distance withers to elbow was 27 cm and elbow to ground was 31 cm.
8. Again, we do not regard evidence as to breed and discussions about DNA testing as relevant.
9. Ms Greenwood also gave brief evidence, confirming she took the 'devils advocate' role at the inspection of Bear with Mr L'Anson. She agreed with Mr L'Anson's evidence and shared his opinion that Bear falls within the Standard. Again, we essentially relied on Mr L'Anson's far more detailed evidence.
10. Mr Laffan's evidence included:
    • (a) The statutory declaration from Mr Michael Brown, described above;
    • (b) Another document titled 'Buying animals' defining the breed as 'American bulldog x Bullmastiff'.
    • (c) Another registration certificate from the Australasian Animal Registry. It records Bear's breed as Mastiff X and states as a pro-forma heading, 'This animal has not been declared dangerous menacing or a restricted breed'; and
    • (d) Documentation from the Numurkah Veterinary Clinic, showing vaccination and micro-chipping and stating the breed to be Mastiff X.

1. We have already described VCAT's powers under section 51(2) of the VCAT Act and the relevant legal test.
2. In our opinion, Bear substantially complies with the Standard's requirements for an American Pit Bull Terrier. We are therefore of the opinion Bear is properly declared a restricted breed dog.
3. Therefore, we affirm Mr L'Anson's decision to declare Bear a restricted breed dog.
4. The persuasive relevant evidence before us is from Mr L'Anson and Ms Greenwood as summarised in Appendix B to these reasons.
5. While Mr Laffan did his best to put evidence before us, what he did provide centred on untested opinions as to Bear's breed, which is not relevant to our decision.
6. Again, the various documents that Mr Laffan produced did not fall within any of the exceptions to the application of the Standard by way of certificates as discussed above.
7. Again, we place no weight on Mr Laffan agreeing with Mr L'Anson at a meeting between them, shortly after Bear was seized, that Bear fell within the Standard.

Appendix A - Comparison of evidence about Kooda and the Standard

Head : 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.

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 (refer figure 3)

Muzzle: Slightly shorter in length to the skull (i.e. 2:3 ratio for muzzle:skull). It is broad, deep and powerful with a slight taper to the nose and falls away slightly under the eyes

Skull: Large, fairly flat, broad and deep, slightly tapering towards the stop. There is a deep median furrow reducing in depth from stop to occiput. Cheek muscles are prominent but free of wrinkles. When the dog is alerted wrinkles will form on the forehead.

Teeth: Large and a complete scissor bite i.e. upper teeth closely overlapping the lower teeth and set square to the jaws.

Nose: Large with wide open nostrils and may be of any colour.

Eyes: 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

No in Sept 2011 (checklist), Yes in February 2012 (dog has grown)

Ears: 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 (i.e. folding backwards and exposing the inner burr of the ear).

No in Sept 2011 (checklist), Yes in February 2012 (head has grown and ears have remained the same)

Neck : 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).

Forequarters : 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.

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

Body : Powerfully built with a deep chest of moderate width.

Forechest: 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).

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

Loin: Short and deep with a slight slope to the croup.

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

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

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.

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.

No when dog 7 months old, tail always sticking out, bit to longer (checklist)

Now largely complies, if tail "fractionally long" and lacking tapering

The coat is short, smooth, glossy and of a harsh texture, free of undercoat.

All colours and combination of colours are acceptable, with the exception of blue merle and pure white. White feet and a splash of white on the chest are not uncommon on solid coloured dogs.

Height and Weight - 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.

Complies - Kooda's height complies even though Kooda exceeds the maximum height by 0.5 cm, in the context of the Guide's general guidelines as to height.

Ratio Length v Height: The overall outline of the breed indicates it to be slightly longer in length (point of shoulder to buttocks) than height withers to ground.

Ratio distance withers to elbow v elbow to ground: generally equal

Does not comply. Withers to elbow is 19% shorter than elbow to ground. Not "generally equal".

Appendix B - Comparison of evidence about Bear and the Standard

Head : 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.

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 (refer figure 3)

Muzzle: Slightly shorter in length to the skull (i.e. 2:3 ratio for muzzle:skull). It is broad, deep and powerful with a slight taper to the nose and falls away slightly under the eyes

Skull: Large, fairly flat, broad and deep, slightly tapering towards the stop. There is a deep median furrow reducing in depth from stop to occiput. Cheek muscles are prominent but free of wrinkles. When the dog is alerted wrinkles will form on the forehead.

Teeth: Large and a complete scissor bite i.e. upper teeth closely overlapping the lower teeth and set square to the jaws.

Nose: Large with wide open nostrils and may be of any colour.

Eyes: 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

No in Sept 2011 (checklist), Yes in February 2012 (grown)

Ears: 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 (i.e. folding backwards and exposing the inner burr of the ear).

No in Sept 2011 (checklist), Yes in February 2012 (head has grown and ears have remained the same)

Neck : 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).

Forequarters : 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.

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

Body : Powerfully built with a deep chest of moderate width.

Forechest: 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).

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

Loin: Short and deep with a slight slope to the croup.

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

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

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.

Tail : 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.

No when dog 7 months old, tail always sticking out (checklist)

The coat is short, smooth, glossy and of a harsh texture, free of undercoat.

All colours and combination of colours are acceptable, with the exception of blue merle and pure white. White feet and a splash of white on the chest are not uncommon on solid coloured dogs.

Height and Weight - 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.

Ratio Length v Height: The overall outline of the breed indicates it to be slightly longer in length (point of shoulder to buttocks) than height withers to ground.

Ratio distance withers to elbow v elbow to ground: generally equal

Complies. Withers to elbow is 13% shorter than elbow to ground. Is "generally equal".

[1] The Amending Act also made changes to sub-ss 17(1A) and 41EA(2) of the Act, which deal with when dogs may be registered as restricted breed dogs, and the offence for a person to keep such a dog. Bear and Kooda were born after 1 September 2010 (according to the applicant's veterinary certificates). It follows that they could not satisfy the requirement in these sections (pre or post the Amending Act) to have been in Victoria immediately before 1 September 2010. We therefore do not need to consider the changes to these provisions.

[2] In relation to s 13, see generally the discussion in DC Pearce and RS Geddes, Statutory Interpretation in Australia, 6th edition at para 6.6 and in Dennis Pearce and Stephen Argument, Delegated Legislation in Australia, 3rd edition at para 12.19.

1. [3] Cited at paragraph 195-2160 of Halsbury's Laws of Australia, Volume 13, looseleaf. The discussion of Dennis Pearce and Stephen Argument in Delegated Legislation in Australia 3rd edition paragraph 27.18 is also relevant.