Pennisi v Cassowary Coast Regional Council [2026] QCAT 80

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

[1] The applicants are the registered owner of an entire male dog described as a black German Shepherd, named Trouper. The dog was kept at 261 New Harbourline Road, New Harbourline. This is the house of Alfio and Angelina Pennisi, the applicants.

[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 Trouper, accompanied by the second dog Dakota, ran out from the property at 261 New Harbourline Road and Trouper growled at the passing dog and a dog attack on Scott Hutchinson ensued. Injury was caused to the owner of Zeus, 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 Trouper had attacked Zeus, the attack had been unprovoked and the attack was a serious attack for the purposes of the Animal Management (Cats and Dogs) Act 2008 (Qld) ('the Act'). The Council declared Trouper a dangerous dog on 9 February 2024 in result.

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

[6] The applicants have now applied to the Tribunal for external review of the decision to declare Trouper a dangerous 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 towards 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 two advancing dogs attacked and Mr Hutchinson was bitten on the arm by Trouper. Zeus defended his owner by biting in response. Mr Pennisi, owner of Trouper and Dakota, 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 Trouper was uninjured according to records.

[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 applicants' 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 applicants consists of photographs and "character references" which are offered to suggest Trouper is anything but dangerous. 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 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 onto 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(2) of the Act, a dangerous 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.

[15] The behaviour of Trouper is definitely classified as serious. It is accepted he caused bodily harm to the victim. Thus, a relevant ground existed for the Council to make the dangerous 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 applicants of the proposal to make the regulated dog declaration; advising of the reasons for it and allowing them a period of at least 14 days to show why the declaration should not be made; considering any representations about that by them; and then, if satisfied the relevant ground had been made out (here, Trouper seriously attacked), 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 applicants, but given it was determined that Trouper was the instigator of the attack and that the attack had been unprovoked and had resulted in bodily injury (wounds) to Mr Hutchinson, 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 applicants say about Trouper being an otherwise quiet and trustworthy dog, the Council having made the decision that Trouper had attacked Mr Hutchinson, the attack not being provoked and Mr Hutchinson having suffered wounds and injury in result, I must come to the same conclusion because it is required by the legislation. I have no discretion to overturn the decision below.