Plaintiff/Applicant v Defendant / Respondent

2 By way of background, on 4 December 2012, the defendant, Monash City Council ("the Council") collected and impounded two dogs owned by Ms Appleby. One of the dogs, named Kerser, is the subject of the leave application.

3 On 11 December 2012, an Authorised Officer of the Council gave notice pursuant to s 98A of the Domestic Animals Act 1994 (Vic) ("the Act") to Ms Appleby that Kerser was declared to be a Restricted Breed Dog, an American Pit Bull Terrier.

4 The implications of the declaration for Kerser and Ms Appleby are significant. Under s 41EA of the Act, there is a prohibition on keeping a Restricted Breed Dog that was not registered in Victoria before 30 September 2011 and under s 17(1AA), the Council is not permitted to register such a dog. Kerser is not registered.

5 Ms Appleby sought a review of the Council's decision declaring Kerser a Restricted Breed Dog.

6 Ms Appleby relies on the affidavit of Michael Smith, affirmed 15 May 2013.

7 An amended draft notice of appeal was filed on behalf of Ms Appleby in the course of submissions. No objection was taken by the Council.**

When will leave be granted under s 148(1) of the VCAT Act?

A party to a proceeding may appeal, on a question of law, from an order of the Tribunal in the proceeding -

(a) to the Court of Appeal, if the Tribunal was constituted for the purpose of making the order by the President or a Vice President, whether with or without orders; or

(b) to the Trial Division of the Supreme Court in any other case if the Court of Appeal or the Trial Division, as the case requires, gives leave to appeal.

**9 Any appeal from orders made by VCAT must be "on a question of law" and this Court, "must give leave to appeal".

10 Pagone J in CSR v Frost and Anor,[1] said the following in relation to the requirements for leave under s 148(1):**

The requirement for leave under s 148(1) of the VCAT Act 'is a safeguard that the appeal is on a pure question of law and that the grounds supporting the question of law articulated for determination by the Court do found the subject matter of the appeal.' It also confers a discretion about whether to grant leave which an applicant must persuade the Court to exercise in its favour. What must be shown will depend upon the particular case bearing in mind the statutory criteria being a grant of leave and not special leave. It will ordinarily be necessary (in addition to a clearly articulated question of law) for an applicant to make out a prima facie case and in an appropriate case it may be necessary for the applicant to show that the question upon which the leave is sought has public or general importance.

(Citations omitted).

11 The test for a grant of leave to appeal under s 148(1) of the VCAT Act was set out by the Court of Appeal in Secretary to the Department of Premiere and Cabinet v Hulls.[2] There, Phillips JA (with whom Tadgell and Batt JA agreed) said this:[3]

Under s 148 leave is always necessary ... As the leave is sought under s 148, that section must be the starting point for any consideration of what has to be shown by an applicant seeking leave. Because an appeal under s 148 relies only on a question of law it follows that if leave is to be granted the applicant must at least identify a question of law (as distinct from a question of fact) and a question of law which is important to the appeal's succeeding or failing ... The question of law must be such that, if there is shown to be error in respect of the question, the appellant's claim to relief will thereby be advanced.

On the other hand, on an application for leave to appeal it cannot be expected that error below be established: that is for the appeal itself. Something less must be sufficient on the application for leave to appeal and ordinarily the applicant will be required to show that there is a real or significant argument to be put that error exists ... Moreover, though never a necessary factor in this Court, sometimes the public or general importance of the question of law which has been identified may be a consideration on the application for leave ... Once a question of law has been identified which bears directly upon the relief which will be sought on the appeal, and once it has been shown that there is sufficient doubt attending that question to justify the grant of leave to appeal, it may be supposed that leave will ordinarily go if the order below is a final order. That must always be subject to its being just to grant leave, a consideration which will in some cases be determinative.

The Test - Dudas v Monash City Council; Tarawa-Shearer v Darebin City Council (Dudas' Case) [4]

12 In Dudas' case, Kaye J set out the test to be applied to determine whether a dog falls into an approved standard. In doing so his Honour considered that:

1. In construing the relevant legislative provisions in this case (including the Standard), it is important to bear in mind that those provisions are designed to protect the community from breeds of dogs which Parliament considers pose a danger to public safety;[5]
2. The Standard applies to cross-breeds and the characteristics of cross-breeds will greatly vary;[6]
3. Sub-section (3) of the Domestic Animals Act 1994 does not expressly require that the particular dog comply with each and every criterion, specified in the approved standard, for it to be a restricted dog. The Standard itself does not specify that the dog must meet each and every aspect of the description or criteria of an American Pit Bull Terrier contained in the Standard. Rather, the description of the American Pit Bull Terrier contained in the Standard is a description of the characteristics of an American Pit Bull Terrier as a class.[7]
4. Some of the features of the dog, specified in the Standard, are described in general or nonspecific terms, which require a degree of subjective assessment. It is clear that the assessment of a dog by an Authorised Officer will often be open to debate, irrespective of the construction of the Standard;[8]
5. On a proper construction of s 3(3) of the Domestic Animals Act 1994 and the Standard, it is not necessary that a dog conform with each of the individual characteristics specified in the Standard.[9];
6. "The reference in that part of the Standard to the "overall consideration of the assessment of the dog", lends support to the proposition that s 3(3) and the Standard do not require there to be total conformity with each of the elements contained in the Standard. Rather, by considering each of those elements, it is necessary that, on an "overall assessment", the dog be properly determined to meet the description contained in the Standard." [10]
7. The requirement that a dog "meet the description" of the American Pitt Bull Terrier must contemplate a substantial, or high level of correspondence between the characteristics of the particular dog in question and the description of those characteristics in the Standard. [11]
8. "Obviously, in an individual case, the question whether there is the requisite high or substantial level of correspondence between the dog, and the Standard, will ultimately be one of appropriate judgment in the particular case. That judgment may depend on the expert opinion (if any) available to the authorised officer or, on review to the Tribunal, as to whether any particular characteristics or criteria, specified in the Standard, are of particular importance in determining whether there is a high or substantial level of correspondence between the characteristics in the Standard and the particular dog in question, so that it can be properly concluded that the dog "meets the description" of the dog in the Standard. However, in the end, as a matter of proper construction, the relative characteristics of the dog in question must be assessed, in quantitative and qualitative terms, to have a substantial or high level of correspondence with the criteria specified in the Standard, in order that it "meet the description" of a dog in that part of the Standard."[12]

Questions of law - amended draft notice of appeal

**13 Ms Appleby has supported her application for leave to appeal the Tribunal's orders by identifying four questions of law and five related grounds of appeal.

Whether the Deputy President denied natural justice and took into account irrelevant considerations by considering the evidence of a person who was not a witness in the case, and who gave no evidence in the case.

Whether the Deputy President committed jurisdictional error by referring to evidence which was not made available to the applicant and related to another dog altogether.

(a) The Deputy President denied the applicant natural justice and took into account irrelevant considerations when she referred to evidence given by a "Ms Walsh", who did not give evidence in this proceeding but is believed to have given evidence in another case and about a different dog altogether. In her Reasons at paragraph 84, the Deputy President states:

Ms Walsh in her notes states that "the dog has splayed paws that are not very round and rather long" before making her finding.

(b) The Deputy President committed jurisdictional error by referring to evidence which was not made available to the applicant and related to another dog altogether.

**14 The first two questions of law and related grounds of appeal (a) and (b) relate to the reference in the Tribunal's reasons to the notes of Ms Walsh, instead of a reference to the notes of Ms Graley. At paragraph 84 of the Reasons, Deputy President Lambrick stated: "Ms Walsh in her notes states that: 'The dog has splayed paws that are not very round and rather long'."

15 By order dated 6 May 2013 pursuant to s 119 of the VCAT Act, the error was corrected by the Tribunal.

16 The first difficulty with the question of law relating to paragraph 84 of the Reasons is that pursuant to s 119 of the VCAT Act, the error has been corrected and therefore the amendment operates from the day of the original order.

17 The plaintiff contends that the Tribunal denied her natural justice and took into account irrelevant considerations by considering the evidence of Ms Walsh, who was not a witness in this case but did give evidence in another case before Deputy President Lambrick. The plaintiff contends that by taking into account the evidence of Ms Walsh, the Tribunal has taken into account irrelevant evidence and that accordingly the Tribunal has fallen into an error of law which is a jurisdictional error, justifying setting aside the orders made on 3 April 2013.

18 As noted, the error has been corrected by the Tribunal pursuant to s 119 of the VCAT Act. When VCAT makes an order under s 119 of the VCAT Act, that order has the effect of correcting the slip in the earlier order, and operates from the date of the earlier order.

19 The plaintiff submits the error was much more than a clerical error and as such could not be corrected pursuant to s 119 of the VCAT Act. The plaintiff did not object to the order made by the VCAT dated 7 May 2012 correcting the reference to Ms Walsh. Further, there is no evidence that the Tribunal considered wrong or irrelevant evidence. The evidence of Rebecca Graley, Animal Management Officer from the Council is contained in documents which included a Statement of Reasons and an Inspection Report dated 20 December 2012.[13] The Inspection Report records under the heading feet "splayed paws that are not very round rather long". While the quote in the Inspection Report is not identical to the quote referred to in the Reasons at paragraph 84, the import of the information is identical. There is no evidence that the Tribunal considered evidence from Ms Walsh rather than Ms Graley or that the Tribunal misunderstood Ms Graley's evidence.

20 In the course of the hearing, Mr Connor, counsel for the Council, provided the Court with a copy of Reasons of a hearing before Deputy President Lambrick in which Ms Walsh gave evidence.[14] At paragraph 81 of the Reasons, Deputy President Lambrick refers to the evidence given by Ms Walsh:**

Ms Walsh stated that: "As demonstrated, feet are well arched and tight, pads appear well cushioned, nails are clearly strong." (sic)

**21 The evidence given by Ms Walsh in the Garsulo hearing is very different to the evidence given by Ms Graley in the current matter before the Court.

22 Finally, and importantly, the Tribunal's conclusion on the issue favoured the plaintiff. That is, the Tribunal found that Kerser's feet did not meet the criteria for a Restricted Breed Dog. The plaintiff does not seek to impugn the Tribunal's findings concerning Ms Graley's evidence.

23 Accordingly, I do not consider questions one and two and grounds of appeal (a) and (b) raise questions of law which are attended with sufficient doubt. Leave is not granted to the plaintiff to proceed with the questions of law, 1 and 2 and grounds of appeal (a) and (b).**

Whether the Deputy President erred in finding that the dog Kerser substantially met the Standard, when the Deputy President made findings that the dog, Kerser, only readily met the description of Pit Bull in the Standard in relation to the dog Kerser's teeth, nose, ears, fore chest, colour, eyes, tail and body.

Whether no reasonable person acting judicially could have found as the learned Member found that the dog Kerser was in fact and in law a Restricted Breed Dog.

(c) On the facts as found by the Deputy President it was not possible as a matter of law for the dog to have been found to have substantially complied with the Standard;

(d) No reasonable person acting judicially could have found, as the learned Member found, that the dog Kerser was in fact and in law a Restricted Breed Dog;

**24 The plaintiff submits that the Tribunal erred in that it could not "at law or in fact" determine that the dog was a restricted breed. The plaintiff submits that the Tribunal incorrectly applied the test as set out in the decision of Kaye J in Dudas' case, as to whether the dog fell within the approved Standard for a Restricted Breed Dog.

25 The Tribunal had regard to the relevant provisions of the Act and the Standard for Restricted Breed Dogs in Victoria. [15]

26 The Tribunal referred to s 98A(1) of the Act which empowers an authorised officer, of a Council, to make a declaration that a particular dog is a Restricted Breed, in this case an American Pit Bull Terrier.

27 At paragraph 5 of the Reasons the Tribunal referred to s 3(3) and (4) of the Act which states:**

3(3) A dog that falls within an approved standard for a breed of dog specified in a paragraph the definition of a restricted breed dog is taken to be a dog of that breed.

(4) For the purposes of (3), an approved standard is a standard that has been approved by the Minister and published in the Government Gazette.

28 The approved Standard for Restricted Breed Dogs in Victoria came into force on 1 September 2011, in the Special Gazette 283. At paragraphs 9 to 11, The Deputy President said:

1. In Dudas v Monash City Council; Tarawa-Shearer v Darebin City Council [2012] VSC 578, His Honour Judge Kaye held that;

"the requirement that a dog 'meet the description' of the American Pitt Bull Terrier must contemplate a substantial or high level of correspondence between the characteristics of the particular dog in question and the description of those characteristics in the standard."

1. Accordingly, the issue to be determined in Restricted Breed Dog cases is whether there is a substantial or high level of correspondence between the material characteristics of a dog and the criteria specified in the Standard.
2. Given the serious and grave implications for the dog, if I am to declare him a restricted dog breed, I should be satisfied on the "Briginshaw" standard and feel an actual persuasion, or be comfortably satisfied that the dog meets the Standard to a substantial degree.

**29 The Tribunal then considered the expert evidence, of Ms Rebecca Graley [which was corroborated by the evidence Mr Wilson, Senior Animal Management officer with the Council and Ms Shenton, Local Laws Management Officer with Council] and Ms Lynne Harwood who gave evidence for the plaintiff. Ms Harwood is an international all breeds dog judge and was described by the Tribunal as having an extensive history in showing dogs and judging. Ms Harwood assessed Kerser against the Standard and found he did not meet the key characteristics as set out in the Standard. Ms Graley on the other hand considered that Kerser met the key characteristics as set down in the Standard.

30 Deputy President Lambrick also viewed Kerser in the company of counsel for each party and their expert witnesses.

31 In the Tribunal's reasons, reference is made to the evidence which was considered as it applied to the Standard.

32 At paragraph 18 of the Reasons, the Tribunal refers to part 1 of the Standard which considers the general appearance and characteristics of an American Pitt Bull Terrier. The Tribunal considered the evidence given by Ms Graley and Ms Harwood in relation to the general appearance and characteristics of Kerser. The Tribunal noted the measurements given were not consistent. When discussing the general appearance and characteristics, the Tribunal found:[16]**

1. In these circumstances I was left to rely on my overall impression of the animal rather than being assisted with precise measurements. This is in keeping with the philosophy of the Standard in any event.
2. The Standards states, for example that - "the disparity between height and weight is considerable and importance should be placed on the overall consideration of the assessment of the dog, rather than adhering absolutely to the guidelines on height".
3. My impression of the dog was one of broad compliance with the Standard.
4. I observed a medium sized dog who appeared to me to be strongly built with well defined muscles with some strength in the hindquarters. He appeared to me to be slightly longer in length (point of shoulder to buttocks) than height (withers to ground) with the distance from withers to the elbow and elbow to the ground generally equal.
5. The Standard provides a mechanism through which it is possible to also fragment a dog to ensure all aspects of the animal have been considered when reaching a conclusion as to whether or not the dog meets the description of a Restricted Breed Dog. I turn now to a consideration of those fragments in order to test my general impression of Kerser.

**33 The Tribunal then went on to consider the various characteristics of the American Pitt Bull Terrier by reference to the Standard, which considers the various aspects of the dog's anatomy. The Standard contains in respect of each part of the anatomy, photographs and diagrams. For example under head, it provided, descriptions in detail of the muzzle, head, profile, skull, lips, teeth, nose, eyes and ears.

34 The Tribunal considered each part of the dog's anatomy, the evidence of Ms Graley and Ms Harwood and the Deputy President's own observations of Kerser.

35 The Tribunal found that Kerser "readily meets the description of a Pitt Bull in the areas of his teeth, nose, ears, fore chest, colour, eyes, tail and body."[17]

36 The Tribunal concluded that Kerser did not meet the Standard with respect to his lips, loin and feet.[18] The Tribunal carefully considered the various aspects of the dog's material characteristics and how they met the Standard and made the following findings:**

1. I then turn to consideration as to whether therefore Kerser substantially complies with the Standard with respect to his head, muzzle, skull, neck, forequarters, back and hindquarters. These are all very important aspects of the dog which go the overall sense of strength and power of the dog.
2. I am satisfied that Kerser substantially complies with the Standard with respect to his head. I found that the shape of his head complied with the Standard and although the stop was only moderately deep and the arches moderately well-defined, coupled with the shape of his head there was compliance to the requisite degree. Kerser's head may not be a perfect example of a Pitt Bull but the overall impression is that of compliance with the Standard to a substantial degree.
3. I found the skull substantially complied with the Standard. Although the check muscles were not particularly prominent, I found that in all other respects the skull did comply and that once again the overall impression was that of meeting the Standard.
4. I found the neck substantially complied with the standards. Although there was some dewlap, it was very minimal and did not detract from the overall impression of compliance with the Standard.
5. I found that Kerser's hindquarters substantially complied with the Standard. His hindquarters were strong and muscular and the hock joint was well bent. Although there was ambiguity around his rear pasterns which, depending on the stance the dog, did appear from time to time to be slightly turned out, I was not satisfied that this lead to a conclusion that there was not substantial compliance.
6. I found that the forequarters did not substantially comply with the Standard. The important aspect of the forequarters in meeting the Standard must be of strength. Although he had muscularity of the forequarters, I was not comfortably satisfied overall to the requisite standard that Kerser complied with the Standard given the weakness indicated by the bowed appearance.
7. Although I found the back to be broad and strong, the incline was well behind the withers, such that I was not satisfied that the back substantially complied with the Standard.

1. I am satisfied that Kerser substantially meets the Standard. The overall impression of Kerser is one of compliance. He may not be the perfect example of a Pitt bull, however, such a dog probably does not exist. Kerser meets the Standard in a significant number of areas to a substantial degree. Even in the areas where he does not meet the Standard to a substantial degree, he meets the Standard to some degree and importantly in areas of musculature strength.
2. The decision of the respondent to declare Kerser a Restricted Breed Dog will be affirmed.

37 In relation to questions of law (3) and (4), the plaintiff submits:

1. That the Tribunal failed to give sufficient weight to expert evidence given during the Hearing;
2. The Tribunal failed to apply the test set out in Dudas' case and erred in that on the evidence before it, the Tribunal could not be satisfied to the requisite degree; and
3. That the Tribunal erred when Deputy President formed an overall impression of Kerser and then went on to assess each part of the anatomy as required by the Standard, to determine if the "overall impression" is founded.

**38 The Tribunal had regard to the evidence on the behalf of both parties and the Deputy President's own observations. Having reviewed the Tribunal's reasons for each heading in the Standard there is no evidence that the Tribunal failed to give sufficient weight to the expert evidence. The plaintiff's real compliant is that the Tribunal preferred Ms Graley's evidence to that of Ms Harwood in circumstances were the plaintiff considered Ms Graley was of lesser experience to Ms Harwood. [19] This is no more than an attack on the Tribunal's findings of fact and does not amount to an error or law.

39 The Plaintiff submits, that the Tribunal made no finding as to what were material characteristics of the dog and therefore, could not assess if there was a substantial or high level of correspondence between the material characteristics and the criteria specified in the Standard as set out by Kaye J in Dudas' case.

40 The plaintiff contends some of the characteristics or criteria in the Standard should be given prominence in the process of assessment or put another way, that there are some characteristics that are more material than others. The plaintiff submits, for example, that the strength of the dog must be seen as a material characteristic given the prominence of strength in the Standard.

41 On reviewing the Standard there does not appear to be a requirement that some characteristics should be considered more or less prominent. Under the heading general appearance and characteristics the Standard notes that the American Pitt Bull Terrier medium size dog is strongly built with well defined muscles. At paragraph 33 of the Reasons the Tribunal considered that the dog appeared to be "strongly built with well defined muscles with some strength in the hindquarters". At paragraph 98 of the Reasons the Tribunal member considered whether Kerser substantially complied with the Standard with respect to his head, muzzle, skull, neck, forequarters, back and hindquarters and noted that "these are all very important aspects of the dog which go to the overall sense of strength and power of the dog."

"...even in the areas where he [Kerser] does not meet the Standard to a substantial degree, he meets the Standard to some degree and importantly in the area of musculature and strength".

43 The Tribunal referred to the strength of the dog and the importance of the musculature and strength when coming to a determination of whether the dog meets the criteria set out in the Standard.**

In basing her decision on an "overall impression" she gained from observing the dog, the Deputy President has misapplied the law. This is not the approach contemplated under the Domestic Animals Act, the Standard, and the principles enunciated by Kaye J in Dudas v Monash City council; Tarawa-Shearer v Darebin City Council.

**44 In the course of the Hearing the plaintiff formulated a further ground of appeal which was not in the draft notice of the appeal but was subsequently included in the draft amended notice of appeal under ground [e]. The plaintiff submits that the Tribunal member's decision was based on an "overall impression" she gained from observing the dog, and that this approach misapplies the law as it is not the approach contemplated under the Domestic Animals Act, the Standard and the principles enunciated by Kaye J in Dudas' case. [20] The plaintiff submits the Tribunal member formed an overall impression of the dog and then went on to assess the criteria in the Standard to determine whether her own overall impression was correct and in doing so, failed to apply the substantial compliance test.

45 The plaintiff submits that the correct application and understanding of the test and how it is to be applied to the Standard is of public importance given the consequences to the dog owner and the dog itself.

46 The Tribunal's use of the term "overall impression" is first found at paragraph 30 of the Reasons. It was in the context of considering the dog's general appearance and characteristics. Specifically, it was in relation to the measurements of the dog which had not been resolved by the parties.[21] Even through the Tribunal member gave her subjective impression of the dog's general appearance and characteristics, this is not an error at law. As Kaye J noted in Dudas' case, some features of the dog in the Standard are non specific and require a subjective assessment.[22]

47 At paragraph 33, when considering the dog's general appearance and characteristics, the Tribunal member considered the relevant criteria in the subsection of the Standard.

48 It is unfortunate that the Tribunal chose to use the word "impression" rather than "assessment", however, when one looks carefully at the Reasons, the Tribunal member provides an analysis of the evidence and its application to the Standard. The assessment made by the Tribunal member is qualitatively and quantitatively sufficient to enable a conclusion that there was substantial or high level of correspondence between the relevant features of the dog and the criteria specified.

49 As noted, the Tribunal member concluded that Kerser met the Standard in the areas of teeth, nose, ears, fore chest, colour, eyes, tail, body, head, skull, neck and hindquarters. This is in contrast to other parts of the dog's anatomy, the lips, loin, feet, forequarters and back, which were found not to meet the Standard.**

**50 The Plaintiff has identified questions of law in the proposed Amended Notice of Appeal. While the Plaintiff is not required on a leave application to demonstrate an error below (which is for the appeal itself), the Plaintiff is required to show that there is a real or significant argument to be put that error exists. This requires more than just a cursory examination of the questions raised. In order to determine whether the question of law is attended with sufficient doubt, I'm required to analyse the issues raised by the questions of law. I accept that the questions of law dealing with the analysis of the Tribunal's application of the test in Dudas' case, are of general importance. However, ultimately what must govern the leave application is the justice of the case to all parties, not just the Plaintiff.

51 Is there a 'real or significant argument' or a prima facie case, that the Tribunal failed to apply the test set out by Kaye J in Dudas' case? In my view there is not.

52 I am not satisfied that the plaintiff has demonstrated that there is a real or significant argument to be put that error exists in relation to the Questions of Law (3) and (4) and the Grounds of Appeal (c ), (d) and (e) in the proposed Amended Notice of Appeal.

53 For the reasons set out, leave to appeal is not granted.

54 Subject to hearing the parties on costs, I consider an appropriate costs order to be that the plaintiff pay the defendant's costs of the application**

[1] [2011] VSC 232, at [3].

[2] [1999] VSCA 117; (1999) 3 VR 331.

[4] [2012] VSC 578.

[13] Affidavit of Michael Smith, affirmed 15 May 2013, exhibit 'MS2'.

[14] Garsulo v Hume CC (General) [2012] VCAT 1810.

[15] Reasons of Deputy President Lambrick dated 3 April 2013, at [12].

[16] Reasons of Deputy President Lambrick dated 3 April 2013, at [30], [32], [33] and [34].

[17] Reasons of Deputy President Lambrick dated 3 April 2013, at [96].

[18] Reasons of Deputy President Lambrick dated 3 April 2013, at [97].

[19] Plaintiff's submissions dated 16 May 2013, at [17].

[20] Plaintiff's written submission dated 16 May 2013, at [10].

[21] Reasons of Deputy President Lambrick dated 3 April 2013, at [30], [32], [33] and [34].

[22] [2012] VSC 578, at [89]