Regulated dog declaration - declared dangerous dog - whether another dog was seriously attacked - identity of attacking dog

Animal Management (Cats and Dogs) Act 2008

[1] The matter before the Tribunal was an Application for Review of a decision of a delegate of the Brisbane City Council ("the Council") to make a regulated dog declaration under section 94 of the Animal Management (Cats and Dogs) Act 2008 ("the Act").

[2] The delegate's decision was made on 11 November 2010. It was made in respect of a German Shepherd named "Rox" whose registered owner is Ms Nancy Lee of 52 Mount Street, Toowong. The decision regulated Rox as a declared dangerous dog.

[3] The delegate's decision followed an incident on 19 August 2010 when a Cavalier King Charles Spaniel named "Monty" was seized by another dog outside or near 35 Mount Street, Toowong. Monty is now deceased. Monty's registered owner was Ms Susan Marchant who lives at 35 Mount Street, Toowong.

[4] An application on behalf of Ms Lee was made for what is now called an internal review of the delegate's decision. On 5 January 2011 another delegate of the Council confirmed the original decision. On 27 January 2011, an application on behalf of Ms Lee was filed with the Queensland Civil and Administrative Tribunal for external review of the decision to regulate Rox as a declared dangerous dog.

[5] The application came on for hearing in Brisbane on 6 October 2011. The following persons attended:

• Dr C Lee - agent for Ms Nancy Lee.

• Mr Carrick Brough - on behalf of the Council.

• Mr Andrew Croxon - a witness.

• Ms Susan Marchant - owner of Monty.

• Mr Matthew White - Council Community Regulations Officer.

• Mr Craig Pillay - Council Community & Environmental Regulation Team.

• Mr Chris McCahon - Council Enforcement Coordination Manager.

[6] Mr White was the Council officer who investigated the incident and made a report. Mr Pillay was the Council officer who made the regulated dog declaration on 11 November 2010 and Mr McCahon was the Council officer who made the review decision on 5 January 2011. Mr Croxon, Ms Marchant and Mr White all gave evidence as witnesses and were cross examined by Dr Lee. Following the giving of evidence, both Dr Lee and Mr Brough made submissions and the hearing was closed after I reserved my decision.

[7] Section 89 of the Act empowers a local government to make certain declarations and is as follows:

1. Any local government may, by complying with the requirements of this part -
   • (a) declare a particular dog to be a declared dangerous dog (a dangerous dog declaration); or
   • (b) declare a particular dog to be declared a menacing dog (a menacing dog declaration); or
   • (c) declare a particular dog to be a restricted dog (a restricted dog declaration).

Note - see sections 61 (What is declared a dangerous dog), 62 (What is declared a menacing dog) and 63(2) (What is a restricted dog).

A dangerous dog declaration may be made for a dog only if the dog - * (a) has seriously attacked, or acted in a way that caused fear to, a person or another animal; or * (b) may, in the opinion of an authorised person having regard to the way the dog has behaved towards a person or another animal, seriously attack, or act in a way that causes fear to, the person or animal.

A menacing dog declaration may be made for a dog only if a ground mentioned in subsection (2) exists for the dog, except that the attack was not serious.

A restricted dog declaration may be made for a dog only if the local government is satisfied the dog is of a breed mentioned in section 63(1).

The declaration may be made even if the dog is not in the local government's area.

A declaration under this section is a regulated dog declaration.

seriously attack means to attack in a way causing bodily harm, grievous bodily harm or death.

[8] Sections 20 and 24 of the Queensland Civil and Administrative Tribunal Act 2009 are also relevant and are as follows:

1. Review involves fresh hearing

   1. The purpose of the review of a reviewable decision is to produce the correct and preferable decision.

   2. The tribunal must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits.

2. Functions for review jurisdiction

   1. In a proceeding for a review of a reviewable decision, the tribunal may -

      • (a) confirm or amend the decision; or

      • (b) set aside the decision and substitute its own decision; or

      • (c) set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with the directions the tribunal considers appropriate.

   2. The tribunal's decision under subsection (1)(a) or (b) for a reviewable decision -

      • (a) is taken to be a decision of the decision-maker for the reviewable decision except for the tribunal's review jurisdiction or an appeal under part 8; and

      • (b) subject to any contrary order of the tribunal, has effect from when the reviewable decision takes or took effect.

   3. The tribunal may make, to the chief executive of the entity in which the reviewable decision was made, written recommendations about the policies, practices and procedures applying to reviewable decisions of the same kind.

   4. If the tribunal makes written recommendations under subsection (3) and the chief executive is not the decision-maker for the reviewable decision, the tribunal must give a copy of the recommendations to the decision-maker.

   5. In this section -

[9] As part of the Council's investigation, statements were obtained from Mr Andrew Croxon, Ms Susan Marchant and Mr Trent Bowler. Mr Matthew White and Mr Craig Pillay also filed statements.

[10] The applicant filed a letter dated 9 September 2011 from Ms Val Bonney of Bonney's Dog Obedience and Care Centre. Ms Bonney is described in the letter as a "canine behavioural specialist/international trainer/author". Dr Lee also handed up at the hearing a report dated 26 August 2010 on Rox from Auchenflower Vet Surgery.

[11] Additionally, included in the file before me were copies of the original decision, the internal review decision, the information notice pursuant to section 157 of the Queensland Civil and Administrative Tribunal Act 2009 and a number of written submissions filed on behalf of Ms Nancy Lee during the course of the investigation and decision making process.

[12] There were two issues before me today:

• (a) Did a dog "seriously attack" Monty in terms of the provisions of section 89 of the Act?

• (b) Was Rox the dog that attacked Monty?

[13] Throughout the course of the hearing, it was apparent that Dr Lee thought that there were other issues involved, such as the conduct of the Council officers, whether there was a breach of their code of conduct, the adequacy and fairness of the investigation, and the impartiality of the decision makers. I do not consider that any of these issues are relevant to my task of conducting a fresh hearing on the merits, in accordance with section 20 of the Queensland Civil and Administrative Tribunal Act 2009.

[14] Mr Andrew Croxon was a witness to the incident that occurred on 19 August 2010. He is a painter and was working at Ms Marchant's property at 35 Mount Street, Toowong. His statement was dated 20 August 2010. He stated that he had opened the front gate to bring tools onto the property when Monty raced out and started barking at a German Shepherd on the street. His oral evidence was that within seconds the German Shepherd had Monty in his mouth and began shaking him back and forth for 4-6 seconds. He said his labourer, Trent Bowler, picked up Monty after the German Shepherd dropped him and took him back onto the property. He said that after the German Shepherd ran away Mr Croxon noticed blood on the grass. He said the German Shepherd shortly returned and began trying to lick the blood. Mr Croxon took some photos then with his mobile phone. When he went back on to the property, he found Monty's owner holding him and Monty had a gash on his skin.

[15] Mr Croxon was cross examined for some time by Mr Lee. In my opinion, his evidence on this issue was not discredited in any way during that cross examination.

[16] Mr Trent Bowler's statement was made 20 August 2010. He stated that after Monty ran up to the German Shepherd and barked, the German Shepherd grabbed him on the back and thrashed him from side to side. He said he was able to pick up Monty and return him to 35 Mount Street after the German Shepherd had released him.

[17] Mr Bowler was not available for cross examination as he did not attend the hearing. While his evidence cannot therefore be given as much weight as Mr Croxon's, it is at least corroborative of Mr Croxon's evidence on this issue.

[18] Ms Marchant's statement was made on 20 August 2010. She did not witness the incident. However, shortly after the incident she took some photos of the German Shepherd outside her property. She later gave those photos to the investigating officer, Mr White. She said that Monty had been taken to the Taringa Vet Clinic when it opened at 8.30 in the morning. She said that he required a general anaesthetic to clean and drain his wounds and that he had about 6-8 puncture wounds in the back half of his body. In her oral evidence she said that the vet thought there may have been some internal injuries and so Monty spent a night at the University of Queensland Veterinary Teaching Hospital for observation. She said that a later diagnosis of diaphragmatic hernia was made, and further surgery was recommended. That surgery took place around the middle of September but Monty did not survive the surgery. She supplied to the investigation tax invoices from Taringa Vet Surgery and the University of Queensland Veterinary Teaching Hospital.

[19] Apart from questioning the supporting evidence of Monty's injuries and the cause of death, Dr Lee's cross examination of Ms Marchant mainly concentrated on the issue of identity which is discussed later.

[20] Dr Lee's submissions on this first issue revolved around the meaning of the word "attack". He stated that a dictionary meaning of the word "attack" was to start an offensive against or to begin hostilities against. His argument was that Monty had been the dog who had started the offensive and that he began the hostilities by racing out of his property to the middle of the road to the German Shepherd. In other words, he argued that Monty had been the dog that had attacked.

[21] I do not find this submission persuasive. In my opinion, the word "attack" must be read in conjunction with the word "seriously" and section 89(7) makes it clear that these words involve some form of physical contact or assault. I am satisfied from Mr Croxon's and Mr Bowler's evidence that this is what occurred when the German Shepherd seized Monty. There was nothing in the evidence to suggest that Monty had previously made any contact with the German Shepherd. I am therefore satisfied that, in the ordinary meaning of the word for the purposes of section 89, the German Shepherd attacked Monty.

[22] I am also satisfied that the German Shepherd seriously attacked Monty in terms of the definition of "seriously attack" in section 89(7) of the Act. That subsection states that "seriously attack means to attack in a way causing bodily harm, grievous bodily harm or death". The evidence disclosed that there certainly was bodily harm and the tax invoice from Taringa Vet Surgery confirmed that an anaesthetic and minor surgery were required.

[23] In his cross examination, Dr Lee sought to establish that Ms Marchant should have obtained a medical certificate outlining the nature of the injuries received and addressing the issue of the subsequent death of Monty. I do not think that was necessary. It is unclear on the evidence whether Monty's subsequent death was connected with the actions of the German Shepherd but I am satisfied on the evidence from the tax invoice that bodily harm was caused to Monty by the German Shepherd. Supporting evidence included the statements of Mr Croxon and Ms Marchant about the injuries evident on Monty, and Exhibit MW01 to Mr White's statement dated 24 June 2010, which was a photograph dated 19 August 2010 depicting Monty's injuries. Clearly, those injuries were not superficial.

[24] As I understood Dr Lee's other submission on this issue, he argued that Ms Marchant, and or Mr Croxon as her agent, were responsible for the incident and, as such, were in breach of section 194 of the Act by not taking reasonable steps to ensure that Monty had not attacked the German Shepherd.

[25] Section 194, however, relates to an offence under the Act and neither Ms Marchant nor Mr Croxon have been charged with any such offence. Accordingly, I do not find Dr Lee's submission relevant to the issue of whether Monty was seriously attacked for the purposes of section 89 of the Act.

[26] In summary, I am satisfied on the evidence that Monty was seriously attacked by a German Shepherd in the incident on 19 August 2010.

[27] Ms Marchant's evidence was that she took some photos of the German Shepherd in the street outside her house shortly after Monty had been attacked. In her oral evidence, she said that she had taken these photos within 10 minutes of the attack. She said she gave the photos to the investigating officer, Mr White. She said that the dog in those photos was the same dog that she had previously seen in the yard at 52 Mount Street and the dog that she had previously seen being walked by Dr Lee.

[28] As part of his investigation, Mr White attended at 52 Mount Street, Toowong, and took photographs of Rox. Two of these photographs were an exhibit marked MW07 to Mr White's statement dated 24 June 2011. The four photographs taken by Ms Marchant of the German Shepherd involved in the attack were an exhibit marked MW02 to Mr White's statement.

[29] In the course of his oral evidence, Mr Croxon was shown the four photos taken by Ms Marchant and he identified the German Shepherd in those photos as the German Shepherd he had witnessed attacking Monty. He went on to state that the German Shepherd in the two photos taken by Mr White was the same dog. In my opinion, Mr Croxon's evidence on these matters was not thrown into doubt under cross examination.

[30] In his statement, Mr White recorded that he attended on Ms Marchant on 25 August 2010 and she identified Rox from the two photographs he had taken on 23 August 2010. He said that she then endorsed one photograph as follows: "This is the dog from 52 Mount Street that attacked Monty". Exhibit MW07 to his statement shows a photo of a German Shepherd and the statement referred to above is written underneath that photo and is followed by a signature "S Marchant". Ms Marchant in her oral evidence confirmed that that was her writing and signature. The second photo of the German Shepherd had an endorsement beneath it as follows: "'Rox' from 52 Mount Street, Toowong" followed by a signature "M White".

[31] In cross examination, Dr Lee asked Ms Marchant whether that endorsement was already on the second photograph when Mr White showed the two photographs to her. She could not remember.

[32] Mr Lee cross examined Mr White at considerable length. In respect of the two photographs, Mr White's evidence was that there was no writing on the photographs when he showed them to Ms Marchant and that he endorsed the second photograph after Ms Marchant had signed beneath the first photograph.

[33] Dr Lee asked numerous questions in his cross examination of Mr Croxon, Ms Marchant and Mr White relating to the exact time of the incident, the number of times Rox had been seen wandering the streets, the number of photographs taken by Mr White, issues relating to Mr White's tape recording of an interview with Ms Nancy Lee, the extent of the door knocks undertaken by Mr White, and identification of house numbers by Mr White. I do not find any of the evidence relating to these issues persuasive on the issue of the identity of the German Shepherd involved in the attack on Monty.

[34] Dr Lee submitted that Mr White had been evasive in his evidence. I reject that submission. I found Mr White a credible witness who gave a good account of his investigation. In particular, I accept his evidence about the photographs and the circumstances surrounding him showing those photographs to Ms Marchant.

[35] I also found Mr Croxon and Ms Marchant credible witnesses and I accept their evidence on identity. Dr Lee sought to challenge Ms Marchant's identification by showing her a series of photographs of German Shepherds. He wanted her to see if she could identify Rox among those photos. Ms Marchant was unable to do so. Mr Brough submitted that I should place no weight on this result because it was not known whether Rox was in fact included in the photographs. I agree with this submission and I place no weight on her inability to then identify Rox. As already noted, I accept her evidence and that of Mr Croxon's relating to the identity of the dog in the photographs.

[36] Dr Lee's other submissions on the issue of identity raised the absence of any signs of injury on Rox, and canine behaviour issues relating to Rox. He relied in support on the report from Auchenflower Vet Surgery dated 26 August 2010 which disclosed no signs of Rox having been involved in a physical incident and made comments on the dog's nature. I do not find this letter helpful. There was no evidence before me that Monty made any physical contact with the German Shepherd outside 35 Mount Street. Indeed, the evidence is that within seconds the German Shepherd grabbed Monty around the back area and began shaking him from side to side. The other evidence relied on by Dr Lee was the letter dated 9 September 2011 from Val Bonney which gave an assessment of Rox's nature. I do not find this letter helpful in any way in the face of the witnesses' evidence to which I have already referred. I give little weight to either of these reports.

[37] In short, I am satisfied on the evidence before me that Rox was the German Shepherd that attacked Monty on 19 August 2010.

[38] In the result, I am satisfied on the evidence before me that Rox, in terms of section 89 of the Act, seriously attacked Monty on 19 August 2010.

[39] Accordingly, I confirm the decision dated 11 November 2010 regulating Rox as a declared dangerous dog under section 94 of the Animal Management (Cats and Dogs) Act 2008.