Pennisi v Cassowary Coast Regional Council [2026] QCAT 79

Manning, L of P&E Law representing Cassowary Coast Regional Council

[1] The applicant is the registered owner of a female dog described as a cross-breed bull terrier black in colour, named Dakota. The dog was kept at 261 New Harbourline Road, New Harbourline. This is the house of Alfio and Angelina Pennisi, the applicant's parents.

[2] On 18 December 2023 the resident of 245 New Harbourline Road, New Harbourline, Scott Hutchinson, was walking on the road past 261 New Harbourline Road with his elderly mother, Adriana Hutchinson, and his dog "Zeus" who was effectively restrained on a lead with harness. The dog Dakota, accompanied by the second dog Trouper, ran out from the property at 261 New Harbourline Road and Dakota growled at the passing dog and a dog attack ensued involving Dakota and Trouper and the Hutchinsons' dog Zeus. Injury was caused to Scott Hutchinson and his elderly mother, Adriana Hutchinson.

[3] This matter was reported to Cassowary Coast Regional Council by Peter Hutchinson, Father of Scott Hutchinson, and Rikki-Lee Thomson, a neighbour at 240 New Harbourline Road, New Harbourline who witnessed the event.

[4] The Council investigated and determined Dakota had been involved in the attack and the attack had been unprovoked, for the purposes of the Animal Management (Cats and Dogs) Act 2008 (Qld) ('the Act'). It was determined that Dakota's involvement in the event caused fear for the purposes of the Act. The Council declared Dakota a menacing dog on 9 February 2024 in result.

[5] The applicant sought internal review of the decision but the earlier decision was confirmed.

[6] The applicant has now applied to the Tribunal for external review of the decision to declare Dakota a menacing dog.

[7] In statements provided to the Tribunal Scott Hutchinson and his mother Adriana Hutchinson recounted they were walking towards their home on New Harbourline Road with their dog Zeus who was on a lead with a collar and harness when two dogs came toward them from number 261 New Harbourline Road. As the dogs were advancing Mr Hutchinson made Zeus sit so he was controlled at the time. The dogs kept advancing and Mr Hutchinson placed himself between the advancing dogs and his mother. The Tribunal heard evidence that the dog Dakota was growling and caused fear to the Hutchinsons. The two advancing dogs attacked and Mr Hutchinson was bitten on the arm. Zeus defended his owner by biting in response. It appears Dakota was bitten by Zeus while the second dog Trouper bit Scott Hutchinson. Mr Pennisi arrived and attempted to separate the dogs and was bitten by his own dog Trouper. Trouper continued to bite Mr Pennisi as he led him away. Mrs Hutchinson experienced a panic attack and fainted. A neighbour transported her to her home on a quad bike as she was unable to walk. Mr Hutchinson was transported to hospital along with his mother.

[8] Scott Hutchinson sustained multiple bite marks to his left arm and wrist as noted from hospital records. The wound was open, swollen and painful.

[9] The dog Dakota experienced a single puncture wound inflicted by Zeus as he defended his owner following being bitten.

[10] By s 89 of the Act:

(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 a declared menacing dog (a menacing dog declaration).

(2) 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.

(3) 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.

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

(5) A declaration under this section is a regulated dog declaration.

(6) In this section -

animal has the meaning given by section 191.

seriously attack means -

(a) in relation to a person - attack the person in a way that causes the death of, or grievous bodily harm or bodily harm to, the person; or

(b) in relation to an animal - attack the animal in a way that causes the death of the animal, or maims or wounds the animal.

[11] The material before the Tribunal is voluminous. Unfortunately, much of the applicant's submissions and evidence presented was not relevant to the issue of whether the order should be made. But from the material provided by both parties the Tribunal finds that there was an altercation between the dogs on that day. I find that Zeus was on a lead when both dogs approached. The approach was unprovoked. As a result of the attack Mr Hutchinson sustained injuries, most significantly puncture wounds to his arm and wrist. As a result of the attack both Mr Hutchinson and Mrs Hutcinson were terrified. The distress experienced was very evident in their giving of evidence.

[12] The majority of the material provided by the applicant consists of photographs and "character references" which are offered to suggest Dakota is anything but menacing. They include both Dakota and Trouper sitting with children, amongst others.

[13] In material supplied by the Council there are records of previous complaints about the dogs being regularly unrestrained on the property. It was established that there was no front fence on the property and it was well accepted that the dogs roamed freely on the property and out to the road often. It was also stated the dogs had entered the neighbour's yard at previous times causing fear to the neighbour.

[14] Turning to the legislative requirements, what is necessary is first to determine whether or not a relevant ground existed for making a regulated dog declaration. A regulated dog declaration may be to declare the dog a dangerous dog or a menacing dog. By s 89(3) of the Act, a menacing dog declaration may be made if the dog has seriously attacked or acted in a way that caused fear to a person or another animal. But in this case the attack is not classed as "serious".

[15] It is clear from the account that the grounds for making the regulated dog order exist. The behaviour of Dakota could be classified as causing fear as she advanced in a threatening manner growling. Thus, a relevant ground existed for the Council to make the menacing dog declaration after proceeding through the legislative requirements set out in Part 4 of the Act.

[16] Those legislative requirements were as follows: giving notice to the applicant of the proposal to make the regulated dog declaration; advising of the reasons for it and allowing him a period of at least 14 days to show why the declaration should not be made; considering any representations about that by him; and then, if satisfied the relevant ground had been made out (here, Dakota caused fear), the Council was obliged to make the declaration.

[17] Those steps appear to have been appropriately taken. There was a discretion in the Council not to make the declaration up to the point where representations were made by the applicant, but given it was determined that Dakota was involved in the attack, advanced on the Hutchinsons on the road and that the attack had been unprovoked and had resulted in fear caused to the Hutchinsons, at that point the Council was obliged to make the declaration, given s 94 of the Act provides as follows:

(1) The local government must consider any written representations and evidence accompanying them within the period stated in the proposed declaration notice.

(2) If, after complying with subsection (1), the local government is satisfied that the relevant ground under section 89 still exists, it must make the regulated dog declaration for the dog.

[18] This was explained by the Appeal Tribunal panel in Brisbane City Council v Roy [2020] QCATA 147:

[52] The words of s 89(1) clearly confer upon a local government a capacity to choose between alternative courses of action: a choice that must be made in the exercise of a discretion.[56] A local government may, subject to compliance with the requirements of Part 4, declare a dog to be dangerous, menacing or restricted. The discretion not to make any declaration at all is confirmed by s 90(1) which states 'If a local government proposes to make a regulated dog declaration ...' (emphasis added) and then outlines the process available to that end starting with a notice of proposed declaration given to the owner.

[53] Section 89(2) sets out the considerations the local government is required to take into account in exercising the discretion conferred by s 89(1) to declare a dog to be dangerous. Section 89(3) sets out the considerations the local government is required to take into account in exercising the discretion conferred by s 89(1) to declaring a dog menacing.

[54] If the local government is satisfied about the facts out of which the power to make a declaration about a dog arises, the local government must, by s 94(2) of the AM Act, make the declaration.

[55] The 'relevant ground' in s 94(2) is a reference to the considerations which must be taken into account in exercising the power to make a regulated dog declaration to which we have earlier referred, that is ss 89(2) and (3).

[56] Use of the word 'must' in s 94 indicates that the power granted is required to be exercised.[57] There is no discretionary element involved save that the decision maker must be satisfied that the relevant ground under s 89 is made out. If it is not, the regulated dog declaration proposed cannot be made.

[57] Nor, do we consider s 94(2) permits in such circumstance any other order than to refuse to make the proposed regulated dog declaration. The mandatory notice of proposed declaration under s 90(1)(c) must state the particular type of regulated dog declaration proposed to be made. Where the relevant ground supporting the particular type of regulated dog declaration is not made out, the mandatory notice provision of s 90 cannot have been satisfied in respect of another type of declaration.

[58] Turning then to the decision by the learned member, it follows from the aforesaid that, having found that the considerations set out in s 89(2) had been satisfied, the learned member was obliged to make the dangerous dog declaration. He had no discretion to do otherwise.

[19] Similarly, despite what the applicant says about Dakota being an otherwise quiet and trustworthy dog, the Council having made the decision that Dakota had attacked the Hutchinsons and Zeus, the attack not being provoked and Mr and Mrs Hutchinson having suffered fear and distress from Dakota's actions in result, I must come to the same conclusion because it is required by the legislation. I have no discretion to overturn the decision.