Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 68, 79, 82

Administrative Appeals Tribunal Act 1975 (Cth) s 43

Domestic Animals Act 2000 ss 4B, 6, 14, 53B, 53C, 59, 64, 67A, 72

Subordinate

Legislation cited: ACT Civil and Administrative Tribunal Procedural Rules 2020 r 91

Domestic Animals Regulation 2001 ss 4B, 7

Cases cited: ACN 120 452 744 Pty Ltd v Newham Business Brokers Pty Ltd & Anor [2021] ACAT 37

B & T Constructions (ACT) Pty Ltd v Construction Occupations Registrar and the Owners - Units Plan 3324 [2013] ACTSC 219

B & T Developments (ACT) 3 Pty Ltd & Ors v ACT Planning and Land Authority & Construction Occupations Registrar & Anor [2014] ACAT 75

Connelly v Allen [2011] ACTSC 170

Giusida Pty Ltd v Commissioner for ACT Revenue [2016] ACTSC 275

Harada v Barnes & Anor [2021] ACAT 66

Lacey v Attorney-General of Queensland [2011] HCA 10

Lau v Registrar, Domestic Animals Act 2000 [2018] ACAT 119

Legal Practitioner v Council of the Law Society of the ACT [2011] ACTSC 207

O'Donnell v Environment Protection Authority [2012] ACTSC 140

Oliver v Registrar, Domestic Animals Act 2000 [2021] ACAT 44

Peraic & Anor v ACT Planning and Land Authority & Anor [2019] ACAT 118

Re Repatriation Commission & McCartney (1986) 9 ALD 441

Robertson v Domestic Animal Services (ACAT, unreported, 20 August 2009) AT51/2009

Shi v Migration Agents Registration Authority [2008] HCA 31

XY v Registrar, Domestic Animals Act 2000 [2019] ACAT 93

Date of Reasons for Decision: 28 September 2021

REGISTRAR, DOMESTIC ANIMALS ACT 2000

APPEAL TRIBUNAL: Presidential Member G McCarthy

1. The order of the Tribunal dated 3 June 2021 confirming the decision of the respondent made on 17 September 2020 to sell the dog 'Blackie' is set aside.

2. The decision of the respondent made on 17 September 2020 to sell the dog 'Blackie' is set aside.

3. The respondent endeavour to determine within 21 days whether to make a further decision to sell the dog 'Blackie' or to return 'Blackie' to the appellant.

1. The appellant, David Oliver, is the owner of two dogs, 'Whiskie', a female brindle pitbull terrier breed, and 'Blackie', a black pitbull terrier cross.[1]

2. On 8 April 2020, Whiskie and Blackie escaped from Mr Oliver's rear yard into the neighbour's yard through a hole in the boundary fence. The dogs harassed the neighbour's chickens and frightened the neighbour's eight year-old daughter. The neighbour immediately reported the incident to Domestic Animal Services (DAS). Rangers came to Mr Oliver's house later that day and seized Whiskie and Blackie pursuant to section 59(b)(ii) of the Domestic Animals Act 2000 (the DA Act).

3. The events on 8 April 2020 followed earlier complaints about Whiskie and Blackie that led to control orders dated 18 and 19 July 2019, substituted with further control orders dated 7 December 2019, made pursuant to section 53C(4) of the DA Act in relation to each dog. The events on 8 April 2020 caused Mr Oliver to be in breach of the later control orders.

4. During May 2020 whilst the dogs were impounded, Mr Bruno Grutzner, of Balanced Dog Academy, conducted behavioural assessments of Whiskie and Blackie. He concluded that Whiskie could be returned to Mr Oliver, but that Blackie would be "better off" re-homed.

5. On 21 September 2020, Whiskie was returned to Mr Oliver.[2] On the same day, the Deputy Registrar issued a control order under section 53B(6)(a) of the DA Act[3] directing Mr Oliver to comply with the conditions stated in the order in relation to his management, care and control of Whiskie.

6. Blackie remained, and still remains, impounded.

7. On 17 September 2020, the Deputy Registrar made a decision to sell Blackie pursuant to section 67A of the DA Act.[4] That section states:

67A Selling dogs (other than dangerous dogs) if keeper unfit

_(c) the registrar is reasonably satisfied that - _

(i) the dog's keeper is unable to exercise responsible dog management, care or control in relation to the dog; or

(ii) there would be an unacceptable risk to the safety of the public or other animals if the dog were released to the keeper; and

(d) the registrar is reasonably satisfied that the dog would not be an unacceptable risk to the safety of the public or other animals if the dog were kept by someone who was able to exercise responsible dog management, care or control in relation to the dog.

8. Mr Oliver applied to the Tribunal for review of the Registrar's decision. On 3 June 2021, the original tribunal confirmed the decision to sell Blackie (the Decision) and published its reasons (the Reasons).[5]

9. By application dated 15 June 2021, Mr Oliver appealed from the decision of the original tribunal. He did so on three grounds:

(a) The Reasons misstate the purpose of the DA Act and misconstrue the decision of the Tribunal in Lau v Registrar, Domestic Animals Act 2000.[6] The original tribunal therefore misapplied the law to the facts.

(b) The original tribunal misconstrued and misapplied sections 67A and 4B of the DA Act.

(c) The original tribunal took into account irrelevant and inaccurate considerations.

10. Pursuant to section 82(1) of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act), the Appeal Tribunal was able to deal with this appeal as a new application, under section 82(1)(a), or as a review of all or part of the original decision under section 82(1)(b). In this case, on 25 June 2021 the Appeal Tribunal ordered that the appeal proceed as a review of the original decision.

11. Regarding the meaning of 'review', in Legal Practitioner v Council of the Law Society of the ACT, the Supreme Court per Refshauge J said:

13. The drafters have, for reasons to which I am not privy, decided not to use terms that have relatively clear meanings, such as 'hearing de novo' and 'rehearing'. These terms have received considerable judicial interpretation and, though the precise boundaries of their meaning may not be exact, are tolerably well understood. See Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149 (at [67] to [78]).

14. It seems to me that the appeal in s 82(a) is what is usually called a 'hearing de novo' and that the appeal in s 82(b) is what is usually called a 'rehearing.[7]

12. In B & T Constructions (ACT) Pty Ltd v Construction Occupations Registrar and the Owners-Units Plan 3324 the Supreme Court per Burns J likewise said:

The ACAT is then empowered by s 82 effectively to elect to deal with the appeal as a hearing de novo (s 82(a)) or as a rehearing (s 82(b)).[8]

13. Regarding the meaning of an appeal by way of rehearing, in Lacey v Attorney-General of Queensland the High Court described it as follows:

Appeal by way of rehearing - where the court conducts a rehearing on the materials before the primary judge in which it is authorised to determine whether the order that is the subject of the appeal is the result of some legal, factual or discretionary error. In some cases in an appeal by way of rehearing there will be a power to receive additional evidence.[9] [footnotes omitted]

14. Regarding the role of an appeal court when conducting an appeal by way of a rehearing, in Connelly v Allen the Supreme Court per Refshauge J said:

...[T]he appeal court must determine whether the decision of the Magistrates Court is wrong, by that court falling into error of law, making a finding of fact that is clearly wrong or exercising discretion on a wrong principle or in a way that is clearly wrong.[10]

15. Regarding the limits of an appeal court when conducting an appeal by way of a rehearing, in Lukatela v Birch (Lukatela) the Supreme Court per Rares J said:

Generally (in the absence of a wider statutory power) in an appeal by way of rehearing, the appellate court can only exercise its powers where, having regard to all the evidence before it, the appellant demonstrates that the order appealed from is the result of some legal, factual or discretionary error.

Only if, after making proper allowance for the advantages of the trial judge, it concludes that an error has been shown, then, the appellate court is authorised and obliged to exercise its appellate duties...[11]

16. Regarding when an order "is the result" of error, in Giusida Pty Ltd v Commissioner for ACT Revenue the Supreme Court per Refshauge J said:

39. A final comment is necessary. The proceedings before the ACAT on appeal and before me refer at times to the common reference in appellate discourse as to what is "open" to a first instance decision-maker. It seems to me that this is a wide term that needs careful consideration. It also needs to be clear that, if there is an error of fact or law in a finding of the ACAT, then it is not open to it to make such a finding unless the error is not a material one.[12]

17. These statements of principle are binding on the Appeal Tribunal and are relevant to the disposition of this appeal. In summary, to succeed on the appeal, Mr Oliver needed to demonstrate an error of fact or law that affected the result.[13]

18. In Harada v Barnes[14] (Harada), the Appeal Tribunal summarised what an appellant must do to establish that an error affected the result. It said:

8. An appellant must do more than contend that the decision of the original tribunal was wrong and that a different result should obtain. A rehearing does not give an appellant the opportunity to have a second run at the target, as if the original decision had never been made, simply because the appellant is dissatisfied with the result. The onus is on an appellant to show, specifically, where the original tribunal went wrong...

10. It is not enough for an appellant to say that a different inference of fact should have been made when all the evidence is weighed in the balance. The appellant must show that a material finding of fact was clearly wrong.[15] [footnote omitted]

Ground 1: the purpose of the DA Act and the statements in Lau

19. The appellant's first ground of appeal drew on paragraph 9 of the Reasons which states:

9. One of the main purposes of the DA Act as it relates to dogs is to ensure public safety, so that people living in the community can feel safe doing whatever activity they want to do. This includes being able to walk the dog without fear of physical injury to oneself or the dog, not having to worry that dogs out alone may he (sic) injured by cars, and feeling safe and not at all anxious or frightened that dogs may enter private yards uninvited. [footnote omitted]

20. The original tribunal cited Lau v Registrar, Domestic Animals Act 2000[16] (Lau) in support of its statements at paragraph 9.[17]

21. Ms Ward, solicitor from the Animal Defenders Office,[18] appeared for Mr Oliver. Her submissions about the statements in paragraph 9 were in two parts. First, that the statements misstate the relevant law and, second, that they pose "an incorrect, and ... impossibly high standard" regarding public safety. She noted there is no reference to 'public safety' in the long title to the DA Act, which states:

An Act to provide for the identification and registration of certain animals, and the duties of owners, carers and keepers, and for other purposes.

22. Ms Ward also noted there is no reference to 'public safety' in section 4B of the DA Act, relevant to this appeal, which states:

4B Criteria for considering responsible dog or cat management, care or control

_For this Act, the registrar in considering whether a person has failed, or is unable, to exercise responsible dog or cat management, care or control - _

(i) any conviction or finding of guilt of the person within the last 10 years against a law of a Territory or State for an offence relating to the welfare, keeping or control of an animal; and

23. Ms Masters, solicitor with the Office of the ACT Government Solicitor appeared for the Registrar. She submitted in reply that many provisions of the DA Act are directed towards public safety, and that this is contemplated by the words "and for other purposes" in the long title to the Act.

24. At hearing, Ms Ward conceded, appropriately, that public safety is one of the purposes of the DA Act but submitted that it is not the "overarching purpose". Rather, relevant to dogs, the overarching purpose is dog management as demonstrated by many obligations under the DA Act such as registration, breeding, training, microchipping and vaccination that, arguably, are not directed towards public safety. Relevant for present purposes, at the appeal hearing Ms Ward acknowledged, appropriately, that public safety is a "theme" that underlies section 67A of the DA Act.

25. Ms Masters contended the protection of public safety is the overarching purpose of the DA Act. She submitted that this has been accepted by the Tribunal on many occasions. She referred to the Tribunal's decisions in Robertson v Domestic Animals Services[19] (Robertson), Sarlija v Registrar, Domestic Animals Services[20] (Sarlija) and Lau.[21]

26. I accept Ms Ward's submission that public safety is a purpose, but not the overarching purpose, of the DA Act. The earlier Tribunal decisions on which Ms Masters relies do not sustain the contrary proposition.

27. The Tribunal's decision in Robertson was not published. It was an ex tempore decision given orally, shortly after the conclusion of the hearing. Robertson concerned a dangerous dog and whether a dangerous dog licence should be issued to Mr Robertson for his dog. Regarding the purpose of the legislation, the transcript of the tribunal's reasons states:

In reaching this decision, I have considered the criteria set out in section 25 of the Domestic Animals Act 2000. And before I refer to those criteria in detail, I think it's appropriate that I comment on the general objective and purpose of the legislation. In interpreting and applying any law, it is appropriate that a decision maker bear in mind the purpose of the legislation that is being considered.

Division 2.3 of the Domestic Animals Act 2000 deals with the declaration of and the keeping of a dangerous dog. It is clear from a perusal of Division 2.3 that the provisions acknowledged that there are some dogs that constitute a risk to safety of members of the public and other animals, and that special provision needs to be made for acre (sic)[22] and keeping of those dogs in order to reduce or remove that risk to public safety. And the division includes provisions requiring special licensing conditions requiring muzzling [and] requiring written warnings.

I accept that the overarching purpose of the legislation is to secure the safety of the public, and that that is the lens through which I must look when considering and evaluating the evidence that the tribunal has received.[23] [emphasis added]

43. In relation to the question of the purpose of the Domestic Animals Act, ACAT agrees with the formulation put by General President Crebbin in Robertson, when she states that,

in interpreting and applying any law, it is appropriate that a decision-maker bear in mind the purpose of the legislation that is being considered.

44. Division 2.3 of the Domestic Animals Act deals with the declaration of and the keeping of a dangerous dog. It is clear from a perusal of division 2.3 that the provisions acknowledge that there are some dogs that constitute a risk to safety of members of the public and to other animals and that special provisions need to be made for the care and keeping of those dogs in order to reduce or remove that risk to public safety. The division includes provisions requiring special licensing conditions such as muzzling, written warnings, self-closing gates et cetera.

I accept that the overarching purpose of the legislation is to secure the safety of the public and that this is the lens through which I must look when considering and evaluating the evidence that the tribunal has received.

It is accepted that the overarching purpose of the Domestic Animals Act, insofar as it relates to dogs, is to ensure public safety.[24]

30. The Tribunal in Lau cited Sarlija in support.

31. It becomes apparent that the claimed "overarching purpose of the DA Act", being to "secure the safety of the public" or "to ensure public safety", is drawn from the Tribunal's remarks in Robertson. Sarlija merely cited Robertson, which was in turn cited in Lau.

32. With respect, I do not think that Robertson stands for that proposition. The transcript, in my view, makes plain that the only 'legislation' that President Crebbin was considering, when describing the "overarching purpose of the legislation", was Division 2.3 of the DA Act which is headed "Dangerous dogs" and deals with dangerous dogs. President Crebbin stated that the overarching purpose of that legislation (i.e. Division 2.3) is to secure public safety. I agree. President Crebbin was not commenting on the overarching purpose of the DA Act generally, nor do I accept that the overarching purpose of the DA Act is public safety.

33. In my view there is no overarching purpose: the DA Act addresses many issues relevant to responsible dog ownership. Public safety is one of them, but there are many others. This clarification is relevant in this case because Blackie is not a dangerous dog; section 67A of the DA Act does not apply to dangerous dogs; and Division 2.3 of the DA Act is not under consideration.

34. Notwithstanding this clarification, the first part of the appellant's first ground of appeal still fails. The original tribunal did not state that 'the purpose' or the 'overarching purpose' of the DA Act is to ensure public safety: it described it as 'one of the main' purposes. After reading the DA Act as a whole, I see no error in that statement. Nothing turns, in my view, upon whether public safety is characterised as 'a purpose' or 'one of the main purposes' of the DA Act.

35. The second part of the appellant's first ground of appeal went to the question of whether the original tribunal overstated the obligations of a dog owner, when stating that one of the main purposes of the DA Act is to "ensure" public safety and that a person should be able to walk their dog "without fear" of physical injury to oneself or the dog, "not having to worry" that dogs out alone may be injured by cars and be "not at all anxious or frightened" that dogs may enter private yards uninvited.

36. Ms Masters conceded, appropriately, that these comments overstate the obligations on a dog owner regarding public safety. Some people, for many and varied reasons, are fearful of any dog, or some breeds of dogs, or large dogs or dogs displaying an aggressive temperament - however well-controlled they are by means of fences, leashes or muzzles. The fear is not so much of the dog but of the consequences were it to escape from behind a fence or from its owner in the course of a walk.

37. The DA Act does not cast an obligation on the owner of a dog to ensure that other people will be "not at all anxious" about a dog entering their yard uninvited. It says nothing about requiring a dog owner to ensure that other persons do not "have to worry" that a dog out alone may be injured by a car.

38. The DA Act contemplates a balance between the obligation of an owner to take reasonable measures to protect other people from physical harm caused by their dog and the entitlement of the owner to keep and own their dog. Ms Ward broadly conceded that this balance exists. She accepted that if the word'reasonable' was inserted between the words 'without' and 'fear' in paragraph 9 of the Decision, the phrase about being able to walk a dog in paragraph 9 would be unexceptional.

39. Ms Masters agreed that this balance exists. Referring to section 67A(1)(c)(ii) of the DA Act, she noted (appropriately) that the section refers to an "unacceptable" risk to public safety.

40. This leaves the question whether the statements of principle in paragraph 9 of the Decision, which (I accept) overstate or wrongly state the obligations on a dog owner regarding public safety, affected the result.

41. Ms Masters submitted that they do not. She characterised the statements as broad comments about one of the purposes of the DA Act. She submitted that the statements, even if they overstated the obligations on a dog owner, did not have any material bearing on the original tribunal's interpretation and application of section 67A as set out in paragraphs 11-13 of the Decision. In particular, the original tribunal confirmed the decision of the Registrar because it was satisfied that the precondition posed in section 67A(1)(c)(i) for the exercise of power to sell Blackie was met,[25] not by reference to any overarching obligation on a dog owner to ensure public safety.

42. Whilst I acknowledge the force of Ms Masters' submission, I was not persuaded by it. Paragraphs 9-12 of the Reasons are written under the heading "Applicable law". They are four short paragraphs commencing with the statements in paragraph 9 that a purpose of the DA Act is public safety, following which the original tribunal provided two reasons (in paragraph 12) for determining that Mr Oliver "has failed or is unable, to exercise responsible dog management, care or control", per section 67A(1)(c)(i). It is apparent that the original tribunal was guided by a need to ensure public safety, yet that issue arises for consideration under section 67A(1)(c)(ii). Meanwhile, neither the Registrar nor the original tribunal, relied on section 67A(1)(c)(ii) for the purpose of making the decision to sell Blackie. In my view, section 67A(1)(c)(i) and (ii) address materially different issues. The former is concerned with the keeper, and their ability to look after their dog. The latter is concerned with the dog, and whether its "release" to the keeper presents an unacceptable risk to public safety or the safety of other animals.

43. I appreciate that, in some cases, arising from the words "or control" in section 67A(c)(i), the operation of sections 67A(c)(i) and (ii) might overlap in the sense that a keeper's inability to control their dog may create an unacceptable risk to public safety or the safety of other animals if the dog is released to the keeper. However, there is no suggestion that the original tribunal considered the sections in that way.

44. For these reasons, I am satisfied that the original tribunal proceeded by reference to a wrong principle regarding public safety which affected the result. The Decision must therefore be set aside.

Ground 2: misconstruction of sections 67A and 4B

45. Sections 67A(1)(a)-(d) state four conditions that needed to be met in order for the Registrar to sell Blackie. There was no suggestion that the three preconditions set out in section 67A(a), (b) and (d) of the DA Act were not met. In issue was the third precondition set out in section 67A(c). It states two circumstances, only one of which needed to be met.

46. Section 67A(c)(i) is directed to the abilities of the dog's keeper to manage, care for and control the subject dog - in this case, Blackie. Section 67A(c)(ii) is directed to the risks that the subject dog presents to the public and other animals, if released to its keeper - in this case, Mr Oliver.

47. In this case, the Deputy Registrar determined that Blackie should be sold by reference to the first circumstance, namely she was reasonably satisfied (for the reasons stated in her notice of decision) that Mr Oliver "is unable to exercise responsible dog management, care or control" in relation to Blackie.[26] She did not rely on the second circumstance. Nor did the original tribunal.

48. The original tribunal's reasons for determining that Mr Oliver is unable to exercise responsible dog management, care or control of (implicitly) Blackie are stated in paragraphs 12 and 13 of its Reasons:

12. Having regard to the factors in section 4B, in determining whether Mr Oliver has failed or is unable, to exercise responsible dog management, care or control, he has:

(b) not been aware or made himself aware of his responsibilities as a dog owner in the ACT: he did not register or desex his dogs at the right time; was not aware that breeding and selling/giving away puppies without a licence was illegal.

13. Mr Oliver has failed or is unable, to exercise responsible management, care or control of Blackie.

49. Ms Ward's submission as to why the original tribunal erred was in several parts.

50. Ms Ward first submitted that the original tribunal erred by determining that Mr Oliver "has failed" to exercise responsible dog management, care or control where such failure is "not ... the test" for the purposes of section 67A(c)(i). She submitted, and I accept, that section 67A(c)(i) is directed to an assessment of a person's present and future abilities - not a determination about past failure. She accepted, appropriately, that a past failure is a factor to "weigh in the balance" when judging a person's present and future abilities but submitted that it is not the only factor. I agree.

51. Ms Ward's submission does not fairly represent the original tribunal's finding. Although the original tribunal determined that Mr Oliver has failed to exercise responsible dog management, care or control, which I accept was not the correct test, it also found that Mr Oliver "is unable" to exercise responsible management, care or control of Blackie. It also noted, in paragraph 11, the correct test. I am not persuaded that the original tribunal's reference to Mr Oliver's failure to exercise responsible dog management, care or control materially affected the result, especially where Mr Oliver's past failures were relevant factors when forming a judgement about his current (and future) inability.

52. Ms Ward next submitted, with reliance on section 4B(b) of the DA Act which permits the Registrar to consider "any other relevant matter" when determining whether a person is unable to exercise responsible dog management care or control, that I should consider facts and circumstances not mentioned in the Reasons which, she said, demonstrate that Mr Oliver is able to exercise responsible dog management, care and control.

53. Ms Ward relied on the statement from Mr Bruno Grutzner, an experienced dog trainer, who conducted assessments of Blackie's and Whiskie's temperaments and of Mr Oliver's ability to manage, care for and control the dogs. Ms Ward referred to Mr Oliver's willingness to continue the training when it was stopped against his wishes. This, she said, was important because Mr Grutzner refers to "appropriate training and leadership" as one of three traits of responsible dog ownership. Ms Ward also referred to Mr Oliver's reported ability to control his dogs, in the sense that when he "whistled the dogs" they instantly ran back to him.

54. Ms Masters submitted that Ms Ward was "cherry picking" the positive comments in Mr Grutzner's statement and report and overlooking his overall conclusion that Blackie should be re-homed - not returned to Mr Oliver. She referred to Mr Grutzner's conclusion that the problem is not the dogs but "is the owner", Mr Oliver, who does not agree that his dogs should be leashed and supervised when living in a suburban area and "does not like to be told".

55. At paragraph 7(f) of the Reasons, the original tribunal noted aspects of Mr Grutzner's evidence, but did not make any findings of fact arising from it or express any conclusions with reliance on it. Also, I am unable to see any connection between Mr Grutzner's evidence and the factors that the original tribunal concluded were "relevant in determining whether Mr Oliver is able to exercise responsible dog management", per paragraph 8 of the Reasons, or the factors stated in paragraph 12 of the Reasons for why it determined that Mr Oliver is unable to exercise responsible dog management, care or control.

56. Ms Ward submitted that I should nevertheless reconsider Mr Grutzner's evidence for the purpose of reaching a different conclusion. I do not agree. As stated in Harada, that is not the role of the Appeal Tribunal when conducting an appeal by way of a rehearing. If Mr Grutzner's evidence is to be considered, it must be for the purpose of determining whether the original tribunal made an error of fact (or law) arising from it. In my view, it is not possible to say that the original tribunal did so when it did not make any finding of fact arising from that evidence. It follows that I had no proper purpose for reviewing the evidence. I therefore declined to do so.

57. Ms Ward next submitted that there was no evidence of "deliberate or even reckless" non-compliance on Mr Oliver's part. I took this to be a response to the original tribunal's reliance on Mr Oliver's non-compliance with the control order dated 18 July 2019 and the later control order dated 7 December 2019.

58. There appears to be no issue that on 14 November 2019, contrary to the first control order, Blackie (and Whiskie) were outside Mr Oliver's property in a public place without a carer - even if there are different viewpoints about whether they attacked another dog that was walking on a lead.

59. There also appears to be no dispute that on 8 April 2020, contrary to the second control order, Blackie (and Whiskie) were again outside Mr Oliver's property, in the neighbour's property, having escaped through a hole in the fence. There is also no dispute that both dogs then harassed the neighbour's chickens and frightened her eight-year-old daughter.

60. Ms Ward submitted, in relation to both breaches, that a distinction should be drawn between a deliberate breach and an unintended breach. She submitted that "a reasonable and humane dog control law"[27] should be able to distinguish between the two. With respect, this was an ambitious submission. It is difficult to contemplate that anyone the subject of a control order, even Mr Oliver, would deliberately breach it - knowing that as a consequence of the breach the Registrar could seize the dog. It is a nonsense to think, therefore, that a breach of a control order does not include an unintended breach. Such a limitation would cause the order to become near purposeless.

61. The question is whether Mr Oliver, when the subject of a control order, complied with it by securing his dogs. The evidence makes plain that he did not do so. Twice, at least, Whiskie and Blackie escaped. For a breach of such a kind, to say that the breach was unintentional is no answer - especially to those who were harassed or attacked. Different considerations might arise in relation to a prosecution for a breach of a control order, where the breach was unintentional, but that has no bearing upon the qualitative assessment of whether Mr Oliver is able to control his dogs.

62. Compliance with control orders does not allow for, or excuse, accidental non-compliance. The circumstances of a breach may have a bearing on what action or consequence should follow from the breach, but a 'breach is a breach', accidental or otherwise. I see no error in the original tribunal relying on Mr Oliver's breach of the control orders when determining that section 67A(1)(c)(i) was met.

63. Referring to the second ground upon which the original tribunal found that section 67A(1)(c)(i) was met, as stated in paragraph 12(b) of the Reasons, Ms Ward submitted that the original tribunal erred by relying upon Mr Oliver being unaware of his responsibilities as a dog owner regarding registration, desexing, breeding and selling/giving away puppies without a licence, when determining that he is unable to exercise responsible dog management, care or control. She submitted that these issues could no longer be relevant regarding the present and ongoing question of whether Mr Oliver 'is' unable to exercise responsible dog management, care or control because Blackie is and will remain microchipped, registered and desexed (meaning there will be no puppies to sell or give away). In other words, these aspects of responsible dog management are now met and always will be.

64. I accept Ms Ward submission. Paragraph 12(b) of the Reasons, in my view, displays several misunderstandings about what is required under section 67A(1)(c)(i).

65. First, the original tribunal relied on Mr Oliver's lack of awareness, which is, implicitly, a comment about a past circumstance. Whilst he may not have been aware of these factors in 2018, there could be no real doubt that he was aware of these obligations at the time the original tribunal made its Decision, consequent upon the training, registration, microchipping and desexing of Blackie that had, by then, occurred. I struggle, therefore, to see how Mr Oliver's past lack of awareness can be relevant to his present ability to care for, manage and control Blackie when that lack of awareness had been rectified.

66. Second, the original tribunal relied on two factors of responsible dog ownership that Mr Oliver should have "been aware or made himself aware" for the purpose of determining he is unable to exercise responsible dog management, care or control of Blackie:

(a) not registering or desexing his dogs "at the right time"; and

(b) breeding and selling/giving away puppies without a licence.

67. In my view, reliance on either factor was flawed.

68. Regarding the first factor, section 67A(1)(a)(i) is 'in relation to' Blackie - not any other dog. By relying on this factor, it is implicit that the original tribunal was saying that Mr Oliver did not register or desex Blackie "at the right time" as he should have done before Blackie was seized on 21 November 2018. The evidence does not support that finding.

69. An owner of a dog is not required to register the dog until it is 56 days old (i.e. 8 weeks old).[28] An owner is not required to microchip the dog until it is at least 12 weeks old.[29] An owner is not required to desex a dog until it is 6 months old.[30] At the time Blackie was seized, the rangers estimated him to be "approx 6 weeks old".[31][32]

70. In other words, 'the right time' to register or desex Blackie had not even arrived when Blackie was seized. I struggle to see why Mr Oliver's lack of awareness of the 'right time' to register and desex Blackie could be relevant to his inability, in future, to manage, care or control Blackie when the "right time" had not even arrived.

71. It also seems that Blackie was seized on 28 November 2018 because Mr Oliver was attempting to sell him when he was not registered, microchipped or desexed, not because these obligations existed by reason of Blackie's age.[34]

72. There is also the fact that Blackie was registered on 18 June 2019[35] and desexed on 17 July 2019.[36] I struggle to see how Mr Oliver's failure to register and desex Blackie "at the right time" could be relevant to his current ability to manage, care for and control of Blackie when these actions had been taken two years prior to the Decision.

73. The original tribunal's reliance on the second factor is similarly flawed. It is difficult to see how Mr Oliver's lack of awareness in 2018 that breeding and selling/giving away puppies without a licence is illegal could be relevant to an assessment of his current ability to care for, manage and control Blackie when Blackie has been desexed - meaning there is no prospect of him producing any puppies to be sold or given away.

74. In an effort to sustain the result, notwithstanding the above-mentioned factors, Ms Masters referred to many examples of Mr Oliver's conduct, or lack of it, that demonstrate his inability - or more accurately his unwillingness - to manage, care for or control Blackie in the manner that (I accept) he should. For example, notwithstanding two control orders requiring Blackie to be on a leash and muzzled whenever outside Mr Oliver's property, when giving oral evidence, Mr Oliver, acknowledged that "every night", when his dogs go up for a feed, he does not put muzzles on them.[37] More so, Mr Oliver said that he did not muzzle Blackie, notwithstanding the control order requiring him to do so because, - in his opinion - "they don't have to have muzzles".[38] His opinion seemed to be drawn from the absence of "proof" that his dogs have bitten a person or another animal.

75. The submission that I should consider this evidence encountered the same problems as Ms Ward's submission that I should consider Mr Grutzner's evidence. Ms Masters seeks to rely on facts and evidence that are not mentioned in the Reasons or even alluded to. There is no finding of fact about Mr Oliver's unwillingness to muzzle his dogs. There is no mention of any aspect of the transcript in the Reasons.

76. It is one thing to say that even if the Reasons show that the original tribunal erred in some factual respect, the Decision should still stand because of other correct findings of fact that still sustain the result. It is quite another to seek to rely on facts or evidence not referred to, and about which no findings of fact were made, that might have led the original tribunal to the same result had it relied on that evidence or made a finding of fact by reference to it. That pathway is to relitigate the matter afresh, not to identify an error that affected the result. For the reasons stated in Lukatela, that is not permissible on a rehearing.

77. For these reasons, I see no error in the original tribunal's reliance on Mr Oliver's breach of the control orders as a relevant factor, per paragraph 12(a) of the Reasons, when determining whether Mr Oliver is unable to exercise responsible dog management, care or control in relation to Blackie, but I am satisfied that its reliance on the factors set out in paragraph 12(b) entailed errors of fact and principle. Where these errors had a material effect on the result, the Decision must be set aside.

Ground 3: irrelevant and inaccurate considerations

78. The errors upon which Ms Ward relied were not, strictly, "irrelevant or inaccurate". Rather, they were errors of fact in three respects:

(a) At paragraph 5 of the Reasons, the original tribunal states "In assessing whether Mr Oliver is able to manage, care for and control Blackie responsibly, the Tribunal had the benefit of [among other things] a statement from each of the two Rangers who seized the dogs on 8 April 2020, Mr David Wright and Ms Skye Campbell". Ms Ward submitted that the reference to two statements from rangers who attended Mr Oliver's property is incorrect: there was only one statement.

(b) At paragraph 7 of the Reasons, the original tribunal states it "is satisfied of the following facts" in relation to responsible dog management. At paragraph 7(b) the original tribunal states that on 21 November 2018 "Blackie was seized as he was not registered or microchipped". Ms Ward submitted that there was no evidence to support that statement, and that Blackie was not required to be registered or microchipped at that time because of his young age.

(c) At paragraph 7(e) the original tribunal states that the neighbour "applied to Housing for a transfer away from this area of Narrabundah". Ms Ward submitted that there was no evidence to support that statement.

79. Regarding the first alleged error, Ms Masters accepted that the statement is incorrect in two respects. First, only one of the three rangers who was present when the dogs were seized (Mr Wright) made a statement. Second, Ms Campbell was not present when the dogs were seized.

80. Ms Ward submitted that this error affected the weight that the original tribunal should have given to Mr Wright's evidence in that it was not supported by evidence (orally or in the form of a statement) by any other ranger who was present when the dogs were seized.

81. Ms Masters submitted that the error is immaterial because it did not affect the result. First, the original tribunal had (in the T documents) the contemporaneous notes of other rangers who were in attendance. Second, events when the dogs were seized on 8 April 2020 were not the only basis for the original tribunal's conclusion that Mr Oliver is unable to exercise responsible dog management, care or control.

82. Questions of what weight should be given to a witness' evidence arise where there are inconsistent versions of relevant facts and a decision-maker is obliged to decide which version to accept or who to believe. Ms Ward's submission would have had some force if the original tribunal had needed to decide between one version and another regarding relevant events on 8 April 2020, and had preferred Mr Wright's version by reason of a (claimed) corroborating statement from another ranger where there was no corroborating statement. That is not this situation.

83. Mr Wright provided a relatively uncontroversial account of what occurred and what he saw when the rangers and members of the Australian Federal Police came to Mr Oliver's house on 8 April 2020. Questions might arise about the attitude and language that Mr Oliver and some of his friends used (or not) during the visit, as reported by Mr Wright, but there is no suggestion in the Reasons that any of that behaviour or language had any bearing upon whether Mr Oliver is unable to exercise responsible dog management, care or control of Blackie.

84. Also, the transcript of Ms Ward's cross-examination of Mr Wright shows that the only real areas of challenge, relevant to Mr Oliver's ability to manage, care for and control his dogs, were in relation to the security of his yard. Specifically, whether the fences and gate were secure.

85. Mr Wright gave evidence that he saw broken fence panels separating Mr Oliver's house from the complainant's house, but that fact was not in dispute. When questioned about this issue, Mr Oliver acknowledged the hole in the fence but contended it was not his fault. The following exchange occurred:

And when you were talking to Mr Wright you said to him that it was actually the neighbour's fault, that she should have done more to fix the hole in the fence, didn't you? --- Yes. I - I- it's not my responsibility if someone is knocking the palings off my side. You know, it was well secured in the morning, and then it happened to be at-whatever, it had split in half, and I've never seen a dog split a paling in half in my life, and you can see by the photos.[39]

86. Perhaps the other area of concern was Mr Wright's observation, upon entering the yard, that the gate did not have a lock on it. Paragraph 6 of the control order dated 7 December 2019 required the gate to be "padlocked when the keeper is not in the yard". Again, Mr Oliver did not dispute the breach. Rather, he defended the reasonableness of the breach. He stated:

I'm not prepared to lock the gate every time I go in and out of it when I'm only ... 20 metres away and I'm going in and out of that [gate] constantly to get tools and shit.[40]

87. For these reasons, I accept that the original tribunal's reference to two statements from rangers who attended Mr Oliver's property on 8 April 2020, when there was only one statement, was an error of fact but it was "not a material one"[41] meaning it did not affect the result.

88. Turning to the second alleged error, paragraph 7(b) of the Reasons states:

On 21 November 2018, DAS received a complaint about illegal breeding at Mr Oliver's property and Blackie was seized as he was not registered or microchipped. He was returned the next day with a 28 day compliance notice issued and on 3 May 2019 Mr Oliver was issued with a compliance notice for illegal breeding. [footnote omitted]

89. Ms Ward submitted that the original tribunal could not and should not have taken the absence of microchipping and registration into account because, at the time, it was not a requirement in relation to Blackie because of his very young age.

90. Ms Masters accepted that the original tribunal erred in finding the Blackie was seized because he was not registered or microchipped,[42] but submitted that the error did not affect the result because "it was apparent" that Blackie was seized in circumstances of illegal breeding, meaning breeding without a licence, contrary to section 72 of the DA Act.

91. Ms Ward submitted that whether Blackie was seized in circumstances of illegal breeding, contrary to section 72 of the DA Act, is not to the point because the original tribunal "made an error of fact and relied on it in reaching a conclusion against [Mr Oliver] on a central issue in the matter."[43]

92. The original tribunal's finding that "Blackie was seized as he was not registered or microchipped" is open to interpretation. Strictly speaking, the statement is correct, but there is no reference to the motivating reason for why Blackie was seized - namely Mr Oliver's attempt to sell Blackie where he was not registered or microchipped, regardless of his age. It is also tolerably clear from paragraph 12(b) of the Reasons, referring to Mr Oliver's failure to register or desex Blackie 'at the right time', that the original tribunal understood that Blackie was seized because he was not registered or microchipped at the right time, rather than because Mr Oliver was attempting to sell him without a licence.

93. Nevertheless, I see no purpose in exploring this issue where I am satisfied, per Ground 2, that the absence of registration or microchipping as at 21 November 2018 should not have had any bearing upon Mr Oliver's ability to manage, care or control Blackie as at 3 June 2021.

94. Turning to the third alleged error, at paragraph 7(e) of the Reasons, the original tribunal referred to events on 8 April 2020 when Mr Oliver's dogs left his yard, entered the neighbour's yard, picked up one of the neighbour's chickens and frightened the neighbour's daughter. The original tribunal concluded the paragraph by stating:

The neighbour later applied to Housing[44] for a transfer away from this area in Narrabundah. [footnote added]

95. The original tribunal provided a reference for this statement, namely the neighbour's witness statement at paragraphs 30-32. At paragraphs 27-29, the neighbour described Mr Oliver's alleged abusive behaviour towards her and her children in the days following the neighbour making her complaint to DAS about Mr Oliver's dogs. Paragraphs 30-32 then state:

30. I was scared and did not want to leave the property as I didn't know what might happen to my dog or chickens if I was not home.

31. I did not feel safe at the property and on 21 April 2020 my family and I, where (sic) advised by the police to moved (sic) out of the property and out of Canberra or apply for a protection order.

32. We chose to move out as we felt a protection order would make our situation worse as we feared the ramifications of Mr Oliver being notified that we had applied for the order would result in another vicious backlash from him ...

96. Whilst paragraphs 31 and 32 imply that the neighbour was living in rented property and state that she chose to "move out", there is nothing in the statement to suggest that the property was rented from ACT Housing or that she applied for a transfer to another property.

97. The neighbour did not give oral evidence, but her statement was admitted into evidence without objection.

98. At the original hearing, counsel for the Registrar, Ms Musgrove, informed the original tribunal that "on my instructions [the neighbour] broke her lease and moved interstate due to the fear that she felt in relation to Mr Oliver",[45] but there appears to be no basis for the original tribunal's statement that the neighbour was renting the property from ACT Housing or that the neighbour sought a transfer to a different property away from that area of Narrabundah.

99. Ms Ward submitted that there was no evidence that the neighbour was living in an ACT Housing property, "with all the limitations that would otherwise imply (i e difficulty in finding alternative premises, being in a vulnerable situation)."[46] Ms Ward submitted that this mistake of fact "carries potentially adverse inferences that could have been considered as aggravating factors against the appellant".[47]

100. Ms Masters accepted that there was no basis for the original tribunal's statement that the neighbour applied to ACT Housing for a transfer away from Narrabundah, but submitted that the error could not have affected the result.

101. I am not persuaded that the error had any bearing on the outcome. Whether the neighbour was living in a private or public rental property, in my view, is immaterial. Regardless of who was the landlord or where the neighbour went after vacating the property is also immaterial. Of relevance is the neighbour's evidence that she left the property because she did not know what "might happen to [her] dog or chickens" by way of reprisal from Mr Oliver and that she "did not feel safe at the property". That evidence was admitted without objection and, in my view, was relevant to the question whether the Registrar's discretionary power, and the original tribunal's power on review, to sell Blackie should be exercised.

102. I am satisfied that the above-mentioned errors of fact and principle affected the result. The question is what should now occur.

103. In this case, Ms Ward relied on rule 91 of the ACT Civil and Administrative Tribunal Procedural Rules 2020 (the ACAT Rules) to submit that I should set aside the Registrar's decision to sell Blackie and replace it with a decision that Blackie be released to Mr Oliver under section 64 of the DA Act. She submitted also "that a control order be issued" under section 53C(4)(a) of the DA Act with "standard conditions" including a requirement for training. The source of my power to cause such a control order to be issued was not stated.

104. Rules 91(a) and (d) of the ACAT Rules provide, respectively, that the appeal Tribunal

(a) has all the powers and duties of the tribunal that made the order appealed from; and

(d) may make an order confirming, amending, setting aside or replacing the order of the tribunal appealed from...

105. Rules 91(a) and (d) are consistent with two of the powers granted to an appeal tribunal under section 82(2) of the ACAT Act which provides that an appeal tribunal has, among other things, "all the powers and duties of the tribunal that made the order appealed from"[48] and "may make an order confirming, amending, setting aside or replacing the order of the tribunal appealed from".[49] It may also "make any other order it considers appropriate".[50]

106. In my view, the powers under section 82(2)(a) and (d) must be read in the context of section 82(1) which provides that an appeal tribunal may, as it considers appropriate, deal with an appeal as a new application or as a review of all or part of the original decision. In this case, the appeal is being dealt with as a review of the original decision. In such a case, the appeal tribunal's powers are not exercisable unconditionally. An appellant must first establish error in the decision under appeal and that the error or errors materially affected the result. Only if these preconditions are established, are the appeal tribunal's general powers under section 82(2) engaged.

107. I accept that, in this case, the precondition is met. It becomes necessary for me, therefore, to determine what should now occur.

108. As Ms Ward points out, section 82(2)(d) of the ACAT Act and rule 91(d) of the ACAT Rules permit the appeal tribunal to make an order confirming, amending, setting aside or replacing the order of the tribunal appealed from. This power materially replicates the general administrative review power under section 68 of the ACAT Act, which conveys a power to review a decision de novo or afresh based on the evidence, facts and circumstances presented and available at the time of the review.[51]

109. In particular, when conducting a review of an administrative decision, the tribunal "stands in the shoes"[52] of the original decision-maker and makes what it considers to be the correct and/or preferable decision according to the evidence, facts and circumstances presented to it,[53] which can include evidence, facts and circumstances that were not before the original decision-maker.[54]

110. In doing so, it can take into account evidence, facts and circumstances in existence but not known at the time of the original decision.[55] It can also take into account evidence, facts and circumstances that did not exist at the time the original decision was made.[56]

111. Sometimes, this can lead to a different outcome without any suggestion that the original decision was incorrect or not preferable based on the evidence, facts and circumstances known and/or in existence at the time the original decision was made.

112. Relevant to this case, as Ms Ward noted, the question for the purposes of section 67A of the DA Act, is not whether the Registrar was reasonably satisfied that Mr Oliver was unable at some point in the past[57] to exercise responsible dog management, care or control of Blackie. It is whether Mr Oliver "is", now, unable to do so. That decision must be made by reference to the evidence, facts and circumstances that now exist.

113. I accept that such evidence may include facts and circumstances concerning Mr Oliver's past behaviour which can be a "fair predictor of future behaviour"[58] but it must also include evidence regarding current facts and circumstances. Also, many facts adverse to Mr Oliver involve events that occurred years ago. A question (among others) is whether things have changed. For example:

(a) Is Mr Oliver still living in the same residence in Narrabundah?

(b) If so, does he still own Whiskie? Is the rear yard now secure, especially regarding the fence and gate? Have there been any complaints regarding Whiskie? Is the control order regarding Whiskie still operative? If not, why not. If so, is there any evidence of non-compliance with the control order? Has Mr Oliver participated in any training for Whiskie? Is there positive evidence regarding Mr Oliver's management and care of Whiskie, for example up-to-date vaccinations?

(c) If all of the questions posed in paragraph (b) can or should be answered in ways that support a conclusion that Mr Oliver is able to exercise responsible dog management, care and control in relation to Whiskie, can it be reasonably inferred that Mr Oliver would exercise materially the same dog management, care and control in relation to Blackie were he to be returned?

(d) Given that Blackie has been impounded for many months and (presumably) is no longer a boisterous puppy, what suggests that Mr Oliver would be unable to exercise responsible dog management, care or control in relation to Blackie having regard to Blackie's current age, temperament and circumstances?

(e) Has Mr Oliver demonstrated a willingness to comply with the law regarding dog management, care or control, even if he might still not agree with some aspects of that law?

(f) Whilst past behaviour can be a predictor of future behaviour, does the Registrar maintain that Mr Oliver is still someone who is unable to exercise responsible dog management, care or control in relation to Blackie? If so, what are the current facts upon which the Registrar relies?

114. Whilst it is possible for me to give the parties an opportunity to present evidence and make submissions on these issues, in reality their scope points to the need for the Registrar to investigate them and probably other relevant matters. Where the answers are likely to be determinative of whether Mr Oliver is unable to exercise responsible dog management, care or control in relation to Blackie, I concluded that the appropriate course is to set aside the decision of the original tribunal and the Deputy Registrar's decision made on 21 September 2020, but go no further.

115. It is, in my view, the role and prerogative of the Registrar to confer with Mr Oliver and then decide whether the criteria for making a decision to sell Blackie under section 67A are still met and, if so, whether that discretionary decision should be made.

116. My only concern is a practical one. As I understand it, Blackie has been impounded since 8 April 2020. Mr Oliver has been without his dog ever since. A decision to return Blackie to Mr Oliver, or to sell Blackie pursuant to section 67A of the DA Act, should be made as soon as practicable, one way or the other.

[1] Oliver v Registrar, Domestic Animals Act 2000 [2021] ACAT 44 at [2]

[2] Registrar's statement of findings dated October 2020, paragraph 33, filed in Tribunal proceeding AT 71/2020; T documents pages 22-30

[3] T documents, page 241. It is difficult to understand why section 53B of the Domestic Animals Act 2000 applied in this case, and therefore why the control order was issued under section 53B(6)(a) of the DA Act. This was, perhaps, an oversight, and the Registrar intended to make the control order pursuant to section 53C(4) of the DA Act. Nothing turns on this, for the purposes of this appeal.

[5] Oliver v Registrar, Domestic Animals Act 2000 [2021] ACAT 44

[6] [2018] ACAT 119

[7] Legal Practitioner v Council of the Law Society of the ACT [2011] ACTSC 207 at [13]-[14]. These statements were confirmed in Giusida Pty Ltd v Commissioner for ACT Revenue [2016] ACTSC 275 at [36]-[37].

[8] B & T Constructions (ACT) Pty Ltd v Construction Occupations Registrar and the Owners - Units Plan 3324 [2013] ACTSC 219 at [12]

[9] Lacey v Attorney-General of Queensland [2011] HCA 10 at [57]. This passage was quoted with approval by the Supreme Court per Penfold J in O'Donnell v Environment Protection Authority [2012] ACTSC 140 at [49].

[10] Connelly v Allen [2011] ACTSC 170 at [12], cited with approval in B & T Constructions (ACT) Pty Ltd v Construction Occupations Registrar and the Owners - Units Plan 3324 [2013] ACTSC 219 at [16].

[11] Lukatela v Birch [2008] ACTSC 99 at [18] and [21], cited with approval in B & T Constructions (ACT) Pty Ltd v Construction Occupations Registrar and the Owners - Units Plan 3324 [2013] ACTSC 219 at [17].

[12] Giusida Pty Ltd v Commissioner for ACT Revenue [2016] ACTSC 275 at [39]

[13] See, for example, ACN 120 452 744 Pty Ltd v Newham Business Brokers Pty Ltd & Anor [2021] ACAT 37 at [4]; Harada v Barnes & Anor [2021] ACAT 66 at [6]-[10] and the earlier decisions cited in those decisions.

[14] [2021] ACAT 66 at [8]-[10]

[15] Harada v Barnes and Anor [2021] ACAT 66 at [8] and -[10]

[16] [2018] ACAT 119

[17] The original Tribunal does not refer to any finding or statement of principle in Lau in support of this proposition. However, it would seem to be a reference to paragraph 38 in Lau, where the Tribunal stated "It is accepted that the overarching purpose of the Domestic Animals Act, insofar as it relates to dogs, is to ensure public safety."

[18] As I understand it, the Animal Defenders Office Incorporated is a non-profit community legal centre specialising in animal law and animal protection matters. It is accredited by the National Association of Community Legal Centres.

[19] (ACAT, unreported, 20 August 2009) AT51/2009

[20] [2012] ACAT 57 at [45]

[22] I presume this was intended to read "for the care"

[23] Transcript of proceedings, 20 August 2009, page 57, lines 12-28

[24] Lau v Registrar, Domestic Animals Act 2000 [2018] ACAT 119 at [38]

[25] Oliver v Registrar, Domestic Animals Act 2000 [2021] ACAT 44 at [13]

[26] Notice of decision to sell dog dated 17 September 2020, paragraph R: See T documents pages 236 to 238; Oliver v Registrar, Domestic Animals Act 2000 [2021] ACAT 44 at [11]

[27] Appellant's submissions dated 17 July 2021 at [19.(c)]

[28] Domestic Animals Act 2000, sections 6(1), 14(1) and 14(3)

[29] Domestic Animals Regulation 2001, section 7(1)(a)

[30] Domestic Animals Act 2000, section 74(4). The obligation to desex has some exceptions, which are not relevant present purposes.

[31] Registrar record details: T documents, page 78

[32] Ms Masters submitted that Mr Oliver gave evidence at the original hearing that Blackie was approximately 8 to 10 weeks old at the time he was seized on 21 November 2018.33 In my view, that evidence is equivocal. When asked "how many weeks prior to [when the rangers came round] did she [Whiskie] whelp the litter?", Mr Oliver said "I don't know. Eight, 10 weeks ... a bit earlier probably" - see transcript of proceedings, 29 January 2021, page 25, lines 29-34.

[34] See Records Details, T documents page 78 and Registrar's decision dated 17 September 2020, paragraph E, T documents page 236

[35] Submissions on behalf of the Registrar in proceeding AT71/2020 dated 11 December 2020 at paragraph 50

[36] See Registrar's decision to sell Blackie dated 17 September 2020, paragraph J, T documents page 236

[37] Transcript of proceedings, 29 January 2021, page 47, lines 34-36

[38] Transcript of proceedings, 29 January 2021, page 47, line 39

[39] Transcript of proceedings, 29 January 2021, page 55, lines 15-21

[40] Transcript of proceedings, 29 January 2021, page 57, lines 10-14

[41] See Giusida Pty Ltd v Commissioner for ACT Revenue [2016] ACTSC 275 at [39]

[42] Respondent's response to appellant's list of errors, received by the Tribunal on 7 July 2021 at paragraph 13

[43] Appellants submissions on the appeal dated 17 July 2021 at paragraph 32

[44] The reference to "Housing" can be reasonably understood as a reference to ACT Housing which manages houses owned by the Territory and rents them as public housing.

[45] Transcript of proceedings, 29 January 2021, page 9, lines 17-19

[46] Appellant's reasons for appeal filed 28 June 2021 at paragraph 3(b)

[47] Appellant's submissions in support of the appeal dated 17 July 2021 at paragraph 30

[48] ACT Civil and Administrative Tribunal Act 2008, section 82(2)(a)

[49] ACT Civil and Administrative Tribunal Act 2008, section 82(2)(d)

[50] ACT Civil and Administrative Tribunal Act 2008, section 82(2)(e)

[51] B & T Developments (ACT) 3 Pty Ltd & Ors v ACT Planning and Land Authority & Construction Occupations Registrar & Anor [2014] ACAT 75 at [44] and [46]

[52] B & T Developments (ACT) 3 Pty Ltd & Ors v ACT Planning and Land Authority & Construction Occupations Registrar & Anor [2014] ACAT 75 at [41]

[53] XY v Registrar, Domestic Animals Act 2000 [2019] ACAT 93 at [24]

[54] Peraic & Anor v ACT Planning and Land Authority & Anor [2019] ACAT 118 at [49]

[55] Re Repatriation Commission & McCartney; (1986) 9 ALD 441, page 449. Section 68 of the ACT Civil and Administrative Tribunal Act 2008 is materially the same as section 43 of the Administrative Appeals Tribunal Act 1975 (Cth)

[56] Shi v Migration Agents Registration Authority [2008] HCA 31

[57] For example, as at 8 April 2020 when Whiskie and Blackie escaped, or 21 September 2020 when the Deputy Registrar made her decision or 3 June 2021 when the original Tribunal made its decision.

[58] See original Tribunal's decision at paragraph 8(b)