Laffan v Moira CC

Laffan v Moira CC - [2012] VCAT 591 - VCAT 2012 case summary — Zoe

[6]

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'.
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.
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.
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'.
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.
Mr L'Anson advised Mr Laffan, that unless he applied to VCAT for review of the declaration, the dogs would be put down.
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'.
Mr Laffan applied to VCAT for reviews of the decisions to declare the dogs to be restricted breed dogs.
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.
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.

[13]

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.
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]
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.
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.
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.

[16]

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?
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.
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'.
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;....
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.
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.
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.
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.
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.

[24]

This was the first hearing by VCAT concerning a declaration of a dog as a restricted breed dog where the Standard was in force.
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.
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.
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.
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.'
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.

[26]

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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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;

[34]

Mr L'Anson and Ms Greenwood gave evidence.
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.
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.
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.
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.
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.
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.
Again, we do not regard evidence as to breed and discussions about DNA testing as relevant.
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.
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.

At a glance

Court

Decision date

Source

Judgment (98 paragraphs)

Laffan v Moira CC (General) [2012] VCAT 591 (10 May 2012)

Parties

Legislation Cited (4)

Cases Cited (1)