Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 7, 10, 82

Domestic Animals Act 2000 ss 27, 36, 53B, 53C, 121, Dictionary

Industrial Relations Act 1996 (NSW) s 191

Subordinate: ACT Civil and Administrative Tribunal Rules 2020 r 91

Cases cited: Akins v National Australia Bank (1994) 34 NSWLR 155

Amer v Erikson [2019] ACAT 108

Arnot and Arnot v Commissioner of Fire and Rescue NSW [2021] NSWIRComm 1082

CCH Australia Ltd v Bowen (1998) 79 IR 206

CDJ v VAJ (No 1) [1998] HCA 67

Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404

Excel Intelligent Pty Ltd v Thomson [2018] ACAT 4

Fernando v Medical Complaints Tribunal (No 2) [2003] TASSC 139

Fox v Percy [2003] HCA 22

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

Hamers v South Canberra Holdings Pty Ltd ACN 606 747 602 trading as Southside Village [2021] ACAT 71

Harada v Barnes & Anor [2021] ACAT 66

He v Qin & Ors [2021] ACAT 129

Hurst-Myers v Aulich Civil Law Pty Ltd [2020] ACAT 56

Lisa Pye v The Registrar, Domestic Animals Act 2000 [unreported, 10 May 2022]

LP 202021 v Council of the Law Society of the ACT [2022] ACAT 80

Mansour v Dangar [2017] ACAT 49

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30

Pye v Pye [2022] ACAT 91

Sarbandi v Sharif [2017] ACAT 57

Solovastru v Leonid Anderson t/as Motor Depot [2020] QCATA 131

Tam v Du [2019] ACAT 94

V v Elringtons Pty Ltd [2018] ACAT 23

List of

Texts/Papers cited: J D Heydon AC, Lexis Nexis, Cross on Evidence (at 3 August 2017)

REGISTRAR, DOMESTIC ANIMALS ACT 2000

1. The appeal is dismissed.
2. Orders 1 and 3 made by the Tribunal in AT 7/2022 and AT 8/2022 on 10 May 2022 are confirmed.

1. In 2021 and early 2022, Lisa Pye owned two registered, desexed male Pitbull crossbreed dogs named Buddha and Tonner.
2. On 6 January 2022, the Registrar appointed under section 121 of the Domestic Animals Act 2000 (Registrar) decided:

(a) to cancel special licences allowing Ms Pye to keep the dogs, both of which a differently constituted tribunal had declared to be dangerous dogs; and

(b) to destroy Buddha after he bit a male person in an underground car park on 24 November 2021.

1. Ms Pye sought merits review of the Registrar's decisions. Her application was heard by a Senior Member of the ACT Civil and Administrative Tribunal (the Original Tribunal). On 10 May 2022, following a hearing, the Original Tribunal ordered, in substance, that:

(a) The decision of the Registrar to cancel a special licence issued to Ms Pye for Buddha is confirmed.

(b) The decision of the Registrar to cancel a special licence issued to Ms Pye for Tonner is confirmed.

(c) The decision of the Registrar to destroy Buddha is confirmed.[1]

1. Ms Pye has appealed against Orders 1 and 3 made by the Original Tribunal. As she no longer owns Tonner, there is no appeal against Order 2.
2. In support of the orders made, the Original Tribunal provided detailed findings of fact and conclusions. For the purpose of providing background to the appeal, it is appropriate to summarise those findings and conclusions.
3. In relation to the cancellation of the special licence for Buddha, the Original Tribunal was prepared to accept that Ms Pye's inability to comply with the condition requiring the dogs to reside and be contained at a particular address was caused by circumstances beyond her control. In those circumstances, she chose not to return the dogs to the Domestic Animal Service (DAS) while she tried to secure suitable alternative accommodation. Nor did she apply to the Registrar for approval to keep the dogs at an appropriate boarding kennel. Consequently, Ms Pye was in breach of that condition of the special licence in relation to Buddha from 30 September 2021 until 26 November 2021 when he was seized. The breach of that condition justified cancellation of the special licence, irrespective of other considerations. The seriousness of Ms Pye's breaches was compounded by other specified facts. Accordingly, the Original Tribunal was satisfied that Ms Pye "repeatedly breached the conditions of the special licenses and failed to exercise responsible dog management or control giving rise to an unacceptable risk to the safety of the public." The Original Tribunal was also satisfied that there were grounds under sections 36(1)(b)(ii), 36(1)(b)(iv), and 36(1)(b)(v) of the Domestic Animals Act 2000 (DA Act) to cancel the special licence permitting Ms Pye to keep Buddha.[2]
4. In relation to the decision to destroy Buddha, the Original Tribunal described the circumstances of the attack by Buddha on Mr Yipu Li as bearing out the correctness of Mr Bruno Grutzner's behavioural assessment of Buddha in February 2021 which led him to conclude that Buddha was dangerous and unsuitable to be rehomed. The evidence in total persuaded the Original Tribunal that Buddha was more dangerous at the time of the hearing than when Mr Grutzner assessed him in February 2021. The Original Tribunal had difficulty accepting Ms Eleni Butler's evidence that Buddha can be rehabilitated. In the Original Tribunal's view, a decision not to destroy Buddha would result in an unacceptable risk to the safety of the public and other animals. Consequently, the Original Tribunal was satisfied that the Registrar's decision to destroy Buddha should be confirmed.[3]

1. Ms Pye lodged with the tribunal two applications for appeal, one dated 9 June 2022 and an amended application dated 23 June 2022. The first application for appeal stated that a "complete list of errors of fact or law" would be provided by 22 June 2022 as ordered by the Tribunal on 7 June 2022.
2. The amended application for appeal set out two reasons for appeal. In summary:

(a) There was a failure to afford procedural fairness, because the Original Tribunal "had difficulty accepting Ms Butler's evidence due to the fact that Ms Butler was denied the opportunity to perform a full temperament assessment only being able to perform half of the assessment whilst Buddha was impounded at the DAS facility." Ms Butler was denied the ability to perform the part of her assessment with the owner being present. "This being part of the reason for the decision to destroy Buddha, any question of law which formed a necessary step in reaching the conclusion of the Tribunal could be the subject matter of appeal, whether identified by the parties and the Tribunal or not. A finding of fact made in the absence of supporting evidence is an error of law."

(b) Reference was made to section 53B(4)(b) of the DA Act.[4] The application continued, "Whether reasonable steps can be taken to reduce the risk of the dog endangering the public and other animals was not afforded due to Covid lockdown and rehabilitation & training not being an assenting service. This is now not the case, Buddha should be afforded the ability to begin rehabilitation & Training as both assessor's believe all dogs can be rehabilitated and retrained."

1. Ms Pye lodged submissions dated 13 July 2022 which set out in considerable detail her critique of numerous paragraphs in the Original Tribunal's reasons for decision. As noted later, that document included, in effect, the grounds of appeal. The Registrar made submissions in response to that document. The Appeal Tribunal followed the order of the issues raised in that document in preparing reasons for decision on the appeal.
2. The types of orders sought by Ms Pye in this appeal were expressed in her application for appeal filed on 10 June 2022 as follows:

(a) Set aside decision to destroy Buddha and allow for transfer of ownership to Mr Kel Harris.

(b) Remove decisions to cancel special licences for Buddha and Tonner from the applicant.

1. In her application for appeal filed on 23 June 2022, she asked that:

(a) The Original order to destroy Buddha be set aside.

(b) The dangerous dog licence for Buddha be reinstated.

1. In an email to the tribunal dated 14 July 2022, Ms Pye listed "Orders Sought if Successful":
   1. The decision to euthanise Buddha be set aside
   2. That Buddha be released on a control order or applicants Dangerous Dog Licence be varied
   3. That Buddha be immediately relocated to Ms Susan Turner-Davis of Yass Pets to complete behaviour training whilst boarding at her facility.
   4. Whilst Buddha is in training, Domestic Animal Services to inspect the applicant's premises and dog enclosure for the return of Buddha
   5. Upon completion of training, Buddha be returned to the applicant
   6. the applicant to strictly comply with any orders set by the tribunal
   7. Impound fees of Domestic Animal Services be waived
2. At the hearing on 8 August 2022, Ms Pye indicated that she was not sure of the process to achieve some of these outcomes (e.g., whether she needed to apply again for a new dangerous dog licence) and whether some of what she wanted needs to be in an order of the Appeal Tribunal. Ms Pye was also uncertain whether the Appeal Tribunal has power to make all the orders that she sought.[5]
3. It is not necessary to deal with those issues at this stage. It is sufficient to note that Ms Pye wants Orders 1 and 3 set aside, and that she listed a series of events that she wished to occur if her appeal succeeds.

1. All appeals are creatures of statute and the features (or incidents) of appeals can vary from statute to statute.[6] Section 82(1) of the ACAT Act states:

_(1) An appeal tribunal may, as the tribunal considers appropriate, deal with an appeal - _

(a) as a new application; or

(b) as a review of all or part of the original decision on the application by the tribunal.

1. The principles to be applied when determining which form of appeal is appropriate were considered by Presidential Member Daniel in Mansour v Dangar as follows:[7]
   1. ... In deciding the correct approach to take, the appeal tribunal is required by the ACAT Act to adopt a procedure which is as simple, quick, inexpensive and informal as is consistent with achieving justice, and the requirements of procedural fairness.[8] Other than containing these overarching requirements, the legislation does not dictate how the choice between a new hearing or a rehearing is to be made. It is nonetheless an important procedural distinction, which may have substantive consequences.
   2. For a new hearing, established principles dictate that the hearing starts afresh. Evidence may be given again, and additional evidence may be given. The appeal tribunal's view on any question of fact or law is determinative of the issue. Any discretion to be exercised by the original tribunal is exercised anew by the appeal tribunal.
   3. By contrast, for a rehearing, the appeal tribunal relies upon the evidence given to the original tribunal, supplemented by any additional evidence which the parties are given leave to adduce. The appeal tribunal's findings on questions of law are determinative. The appeal tribunal will not lightly substitute its own findings of fact for the original tribunal's primary findings of fact, but may be less constrained in relation to drawing inferences of fact. The appeal tribunal should not interfere with a discretionary decision unless satisfied that there has been an error in the exercise of discretion.
   4. ... Applications for appeal raising only questions of law or confined questions of fact are most expeditiously dealt with as a rehearing, occasionally with further evidence admitted in relation to areas of factual dispute. By contrast, where there appears to have been a real failure of process at the original hearing, such as a failure to hear both parties, the appeal might be heard as a new application. In such circumstances, this approach is often the simplest, quickest and most inexpensive way to achieve a fair and just outcome. (footnotes omitted)
2. As Presidential Member Robinson pointed out in the subsequent decision in Hamers v South Canberra Holdings Pty Ltd ACN 606 747 602 Trading as Southside Village, the usual approach of an appeal tribunal is to conduct a rehearing or review on the evidence before the original tribunal, plus any fresh evidence that, exceptionally, may be admitted. However, where there has been a failure of process during the first hearing, a new hearing may be the most appropriate means to address that.[9] For example, an appeal tribunal might have to decide whether the circumstances of a particular case lead to the conclusion that the original hearing amounted to a denial of natural justice that is of such magnitude that a de novo hearing is required to address that injustice.[10] It would be for the appellant to demonstrate an actual injustice.[11]
3. On 24 June 2022, the tribunal made orders in relation to the hearing of this appeal. Order 8 included the statement that the appeal hearing would "proceed as a review of the original decision unless the Appeal Tribunal orders otherwise."
4. There was no application for a hearing as a new application (or hearing de novo). Nor did the circumstances of this case warrant the unusual approach of starting afresh. Consequently, the appeal was conducted as a review (or rehearing) of the original tribunal's decision. Later in these reasons for decision we consider whether the Appeal Tribunal should grant leave for Ms Pye to provide further evidence to support her appeal against the decision of the Original Tribunal.

1. Differently constituted appeal tribunals have considered judicial decisions on the nature of an appeal that is a review or rehearing, and have described an appeal tribunal's role in a rehearing as follows:

(a) An appeal tribunal must determine whether the decision appealed against is wrong because the original tribunal fell into an error of law, made a finding of fact that is clearly wrong or exercised a discretion on a wrong principle or in a way that is clearly wrong.

(b) Ordinarily, if there has been no further evidence admitted or no relevant change in law, an appeal tribunal in entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was an error on the part of the original tribunal.

(c) The appeal tribunal will give proper allowance to the advantage of the original tribunal who saw and heard the witnesses, so that, ordinarily, facts found based on the assessment of witnesses will not lightly be overturned.

(d) The appeal tribunal is obliged to conduct a real review of the trial and the reasons of the original tribunal.

(e) In an appeal by way of rehearing, once error has been found (after making proper allowance for the advantages of the original tribunal), the appeal tribunal can substitute its own decision based on the facts and the law as they now stand.[12]

1. In short, an appellant must show that the original tribunal committed an error of fact or law that was material to the result.[13]
2. An appellant must do more than contend that the decision of the original tribunal was wrong and that there should be a different result. 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. Normally, that requires an appellant to point to an error of fact or an error of law in the written or oral reasons for decision of the original tribunal and to explain to the appeal tribunal how that error affected the result.
3. If an appellant says that the original tribunal made an error of fact, the appellant must take the appeal tribunal to:

(a) the evidence before the original tribunal to demonstrate the error; or

(b) if the appeal tribunal gives leave for the appellant to rely on further evidence, the evidence that the appellant says demonstrates the error, and the appellant must explain what the correct finding of fact should be, based on that evidence.

1. 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.

1. Before considering whether to grant leave to Ms Pye to provide further evidence on appeal, and before considering the grounds of appeal, it is appropriate to describe the context in which Ms Pye brought the appeal.
2. First, Ms Pye has a strong attachment to Buddha, as evidenced by the considerable time and cost involved in her various applications and appeals to the tribunal over the past two years, and by some of the video evidence before the Original Tribunal. As she has noted, Ms Pye has also suffered personal difficulties, including eviction and mental health challenges. The material before the Appeal Tribunal is consistent with the observation of the Original Tribunal that Ms Pye "feels deep affection for her dogs and fears losing them."[14]
3. Second, Ms Pye and the Registrar have had poor communications and an adversarial relationship from at least early 2020.
4. On 6 March 2020, DAS sent Ms Pye a notice to desex Buddha. On 23 September 2020, Ms Pye applied to have Buddha remain sexually entire. On 13 October 2020, DAS noted it had received the application but had taken no action and instead, sent Ms Pye a second notice for Buddha to be desexed. A third such notice was sent on 19 January 2021.
5. On 4 February 2021, Ms Pye's dogs were seized by DAS from her home in Bonner. Email communication between Ms Pye and DAS staff suggested that Ms Pye's earlier application was still active. It was also noted that the dogs would be released after desexing. Ms Pye agreed to having the dogs desexed.
6. However, on 21 April 2021, after an investigation, the Deputy Registrar decided that Buddha should be destroyed. Ms Pye was incorrectly informed that she had seven days to lodge a review application with the tribunal.
7. On 20 August 2021, the tribunal set aside the decision to destroy Buddha and declared Buddha a dangerous dog.[15] On 9 September 2021, Buddha was released to Ms Pye with conditions on a Dangerous Dog Licence, including that Buddha resides at her house in Bonner and that, if he left the Bonner premises, he "must" be muzzled, kept on a leash, be wearing a dangerous dog collar, and be under the effective control of Ms Pye or another person over 18 years of age. The Dangerous Dog Licence concluded "Failure to comply with any of these conditions may result in the cancellation of the Dangerous Dog Licence, seizure of the declared dangerous dog, the issuing of infringement notices and/or possible prosecution action."
8. On 30 September 2021, Ms Pye was given an eviction notice. On 1 October 2021, after a hearing, a Presidential Member of the tribunal made orders to the effect that the Registrar would:

(a) consider on an urgent basis an application for Buddha to be accommodated at an appropriate boarding kennel and would undertake to notify the tribunal as soon as possible after approving that application; and

(b) consider any application for Buddha to be housed at an alternative location and would approve that application if the relevant conditions in the order of 20 August 2021 could be met.

1. The Registrar consented to interim orders being made by the tribunal to give effect to an arrangement consistent with (a) or (b).
2. On 6 October 2021, the Registrar's legal representative wrote to Ms Pye's brother, Mr Christopher Pye (who had permission to act as Ms Pye's power of attorney in the proceedings), stating that Mr Pye had rejected the suggestions made at the hearing on 1 October 2021 and declared that the dogs would never be released out of Ms Pye's sight. The letter noted that as of 6 October 2021 Ms Pye was in breach of the Dangerous Dog Licences as her two dogs were no longer kept at the premises at which the dogs must reside. Neither Mr Pye nor Ms Pye had provided the Registrar with a new address for where the dogs resided. The Registrar demanded that Ms Pye inform him of the address where Ms Pye and the dogs now resided so arrangements could be made to inspect the property to ensure that Ms Pye was complying with the conditions of the Dangerous Dog Licences. Ms Pye was given until 7 October 2021 to respond to the letter.
3. On 7 October 2021, Ms Pye advised by email that she was complying with the orders as best she could given that she was homeless and finding it difficult to secure a property with two dogs on Dangerous Dog Licences. However, she notified DAS that both dogs had been kennelled at an "appropriate facility" for the interim basis while appealing the Dangerous Dog Licences. She stated, "At this point in time we will not be disclosing the location to DAS as concerns of seizure due to the forced non-compliance with the finalisation of the separate residential dispute which has caused me to be homeless at this time. ACAT have been made fully aware of the location and compliance." She concluded, "Further information will be provided promptly if necessary."
4. On 8 October 2021, Ms Pye's brother, acting on her behalf, informed the tribunal of the location of the dangerous dog at an "appropriate, professional & registered kennel", as required by DAS conditions. He requested that DAS not be informed of the location of the boarding kennel when the ACAT advised the Registrar and the Registrar's legal representative that Buddha was no longer at the Bonner address. The tribunal registry agreed to this request and advised that it had contacted the Registrar's legal representative to confirm that the tribunal had received a message on behalf of Ms Pye which identified the location of Buddha's kennel. The Tribunal did not disclose that location to the representative. The implications of this process are considered below (see [138]-[143]).
5. Although the Tribunal accepted this request, on 8 October 2021, the Registrar's legal representative wrote to Mr Pye reiterating that Ms Pye was in breach of the orders made by the Tribunal on 20 August 2021 and advising that, in order to rectify the breaches, Ms Pye needed to complete a form to provide the current address where the dogs reside. Ms Pye was given until 2pm that day to respond to the letter and was advised that failure to do so would result in further compliance action being taken by the Registrar.
6. After Buddha was seized by DAS, and the process which led to the current appeal was commenced, DAS was unco-operative with Mr Pye's attempts to arrange for Buddha to be assessed at DAS facilities or elsewhere. The series of events is described later (see [86]-[102]).
7. The Appeal Tribunal accepts that the DAS has difficult work to perform to ensure compliance with the DA Act and Dangerous Dog Licences, and that it was not easy to deal with the persistent and numerous requests from Ms Pye. However, although the volume of Ms Pye's email and voice call requests to DAS could be viewed as excessive, the delayed or lack of response by DAS to some of those requests, and the occasional erroneous response, are instances of administrative failure.
8. Given the interactions summarised briefly above, the Appeal Tribunal appreciates why, as the Original Tribunal observed, Ms Pye "nurses deep-seated feelings of anger and resentment towards DAS."[16]
9. Third, Ms Pye advised the Appeal Tribunal that she is now in secure accommodation and can ensure that it can be made suitable to hold Buddha as a dangerous dog. She stated that her new residence has "a safe and secure backyard" with enclosed Colorbond fencing.[17]
10. Ms Pye sought leave to put into evidence a letter from her landlord dated 4 July 2022 to the effect that Ms Pye's tenancy application was approved with Buddha residing at the property. The landlord acknowledged that Buddha "is listed as a dangerous dog breed in the ACT" and stated that she had given Ms Pye permission to keep Buddha at the property, "noting the enclosed fence backyard and roller door that encloses the driveway." Ms Pye described the document as Exhibit K in her list of further evidence.
11. Fourth, Ms Pye acknowledged that not all dogs like all other dogs and not all dogs like every person. Further, she stated that she is "now fully aware of the importance of following the conditions of" the Dangerous Dog Licence.[18]
12. Ms Pye expanded on that submission, contending that the Appeal Tribunal should take into consideration the amount of time and money spent on compliance with the orders of the Dangerous Dog Licence, the difficulties she faced, and the financial and emotional support she had from friends and family in "my fight to save my dogs."[19] She sought to provide further evidence of the amounts she spent on desexing the dogs, accommodating them at the Sonzo Veterinary Clinic and the kennels of Tara Estate Pet Boarding (Tara), and engaging Ms Eleni Butler to provide a behaviour assessment of Buddha. She described these documents as Exhibits E4 and E5 in her list of further evidence.
13. As noted earlier, Ms Pye's amended application for appeal argued that, following the period of Covid lockdown during which reasonable steps could not be taken to reduce the risk of Buddha endangering the public and other animals, Buddha should now be afforded the ability to begin rehabilitation and training.
14. Ms Pye advised that evidence is available that should satisfy the Appeal Tribunal that she is in a better position than previously to exercise responsible dog management, care, and control. With the change in ownership of Tonner, her full focus can now be directed to Buddha's rehabilitation and training program with Ms Susan Turner-Davis.[20]
15. In her final written submissions, Ms Pye asked that the Appeal Tribunal give her and Buddha:

a chance now that my circumstances have changed and that I am in a better position to fully comply with any order the tribunal sees fit.

I can give 100% attention to Buddha and the conditions if given the chance now that I have my own secure property for us to reside, and Tonner is no longer having to share the same property with him.[21]

1. The Registrar submitted that Ms Pye did not adduce any new evidence to prove that her circumstances had changed in that way and although she adduced evidence from her landlord regarding her change of residence, there was no evidence in relation to her capacity to comply with the requirements of a dangerous dog licence if that were to be granted by the Appeal Tribunal.[22]
2. Without making findings of fact in relation to all of the matters raised by Ms Pye, the Appeal Tribunal proceeds on the understanding that:

(a) Ms Pye is strongly attached to Buddha;

(b) Ms Pye's dealings with the Registrar and certain officers of DAS have been unsatisfactory and have influenced her thinking and attitude about DAS;

(c) because Ms Pye no longer owns Tonner, she could devote more time to the care and control of Buddha;

(d) the premises where Ms Pye currently resides could be used to care for Buddha; and

(e) Ms Pye has taken action, including by commencing and persisting with the appeal, to secure the return of Buddha to her.

1. Important as those matters are to Ms Pye, and despite them providing the context of her persistence with these proceedings, they cannot determine the outcome of this appeal.
2. The issue before this Appeal Tribunal is whether the Original Tribunal was in error in deciding to make Orders 1 and 3 (referred to above). It is on that basis that the Appeal Tribunal must:

(a) consider the grounds of appeal; and

(b) decide in relation to particular grounds of appeal whether to allow Ms Pye to provide further evidence (that is, evidence that was not provided to the Original Tribunal) for the purpose of the appeal.

Application for leave to provide further evidence on appeal

1. As noted earlier, Ms Pye applied for leave to provide further evidence in relation to her appeal. In order to deal with that application, the Appeal Tribunal needs to identify the nature of each of the documents and ascertain, by reference to relevant legal principles, whether leave should be granted in respect of any or all of those documents.

1. In support of her appeal, Ms Pye sought to rely on documents which, in part or in whole, were not before the Original Tribunal. That further evidence comprised:

(a) the transcript of proceedings before another Senior Member of the tribunal on 21 and 27 May 2022 in matter AT 39/2021;

(b) unredacted versions of certain documents that in a redacted form (e.g., with names obliterated) were before the Original Tribunal;

(c) certain documents that existed at the time of the hearing before the Original Tribunal but were not in evidence at the original hearing; and

(d) a document or documents that did not exist at the time of the original hearing, but which Ms Pye wanted to be prepared for the purpose of the hearing of the appeal.

1. Ms Pye submitted that the further evidence should be accepted on appeal on the ground that the Original Tribunal erred in relation to findings of fact and law and that, if the factual evidence had been available at the time of the Original Tribunal's decision, the further evidence could have altered that decision. In particular, Ms Pye contended that the Original Tribunal's reasons for decision relied heavily on assessments of Buddha by Mr Grutzner (a dog handler and dog behaviouralist) and appeared to disregard Ms Butler's assessment "even though Ms Butler could not provide a full assessment." Further, the Original Tribunal stated that not every breach of the conditions of the dangerous dog licence would justify cancellation of the licence.
2. The Registrar made overarching submissions in opposition to the further evidence which Ms Pye alluded to or provided to the Registrar and the Appeal Tribunal on 8 August 2022. In essence, the Registrar submitted that the Appeal Tribunal should not use the further evidence and hence should not grant leave to Ms Pye to adduce any of it.
3. For example, the Registrar opposed the admission into evidence on appeal of the 75 pages of additional documents provided by Ms Pye as Attachments to Response dated 8 August 2022. In the Registrar's submission:

(a) none of the documents advance Ms Pye's case;

(b) it is not clear why they were not relied on at the hearing before the Original Tribunal;

(c) some of the documents were provided at the original hearing but in a redacted version so the Original Tribunal could not make any use of them; and

(d) it is not clear why they should be accepted on appeal.[23]

1. In deciding whether to admit any or all of the further evidence provided by Ms Pye, the Appeal Tribunal must apply the relevant legal principles contained in legislation and the judgments of courts and decisions of tribunals.
2. Where an appeal is conducted as a review or rehearing (rather than a hearing de novo), it proceeds on the basis of evidence before the original tribunal. An appellant is not entitled to provide further evidence without the leave of the appeal tribunal.
3. Rule 91(c) of the ACT Civil and Administrative Tribunal Rules 2020 (ACAT Rules) provides:

For an appeal within the tribunal, the appeal tribunal-

(c) may, if leave is granted, receive further evidence about questions of fact, either orally or in a hearing, by written statement or in another way.

1. Evidence is material which goes to establish the relevant facts. It does not include a party's arguments, or the legal authority (cases and legislation) relied on to support those arguments. Rule 91(c) expressly limits the tribunal's power to grant leave to receive further 'evidence' about questions of fact. Because this appeal is a review of the Original Tribunal's decision, it follows that any further evidence must be about a fact or facts in dispute in the original proceedings.
2. Although the ACAT Act and the ACAT Rules do not prescribe how an appeal tribunal decides whether to grant leave to receive further evidence about questions of fact on appeal, there is a substantial body of case law to guide the Appeal Tribunal when exercising its discretionary power.
3. The principles regarding the grant of leave to introduce further evidence on appeal were summarised in Hurst-Myers v Aulich Civil Law Pty Ltd[24] where the tribunal drew on the High Court's decision in CDJ v VAJ (No 1)[25] to say that the reception of further evidence on appeal should be "exceptional". It noted Justice Gaudron's view that:

... ordinarily, further evidence should not be admitted on appeal if it was available, or could reasonably have been obtained, at the time of the hearing.[26]

1. The tribunal also noted the observations of Justices McHugh, Gummow and Callinan, who stated that factors such as finality, discoverability of the evidence and its likely effect on the orders made are usually relevant to whether the discretion to admit new evidence should be exercised. The tribunal quoted their Honours' view that:

The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.[27] (emphasis added)

1. The present appeal is not an application for a new trial, but it is still necessary to show an 'exceptional' reason to allow further evidence. In the later case of Fox v Percy, Chief Justice Gleeson and Justices Gummow and Kirby wrote:

The "rehearing" does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits.[28] (emphasis added)

1. In Hurst-Myers v Aulich Civil Law Pty Ltd, the tribunal concluded by saying that from these authorities:

[I]t is apparent that an Appeal Tribunal would only grant leave to admit further evidence about questions of fact in exceptional circumstances where it serves the demands of justice to do so.[29](emphasis added)

1. In Amer v Erikson, Presidential Member Daniel reviewed the authorities and stated:
   1. The overarching principle to be applied when considering whether to allow new evidence on appeal is the interests of justice. The power "exists to serve the demands of justice" and is a "remedial" power.
   2. It is not usually in the interests of justice to allow new evidence on appeal. To do so would be inconsistent with the appellate nature of the proceedings, and the public interest of finality in litigation. However, in a particular case it may be in the interests of justice to admit new evidence on appeal if there is an acceptable reason for the evidence not being brought at the original hearing and the new evidence would, or was likely to, have produced a different result.
   3. In considering the first element, the question is whether the new evidence could have been procured with reasonable diligence for the Original Tribunal. If the new evidence could have been available at the original hearing, the Appeal Tribunal must consider whether there was an acceptable reason why it was not relied upon at that time...[30]
2. The conditions to be satisfied in deciding whether at admit further evidence have been considered by other courts and tribunals in recent years.
3. In[&] (Akins), Clarke JA stated that "it is not possible to formulate a test [as to what are special grounds]" on which fresh evidence should be admitted but his Honour set out the three conditions that, in general, need to be met before fresh evidence in appeal proceedings may be admitted:

(a) it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial;

(b) the evidence must be such that there must be a high degree of probability that there would be a different verdict; and

(c) the evidence must be credible.

1. In Solovastru v Leonid Anderson (t/as Motor Depot),[32] the Queensland Civil and Administrative Tribunal (QCAT) held that the appeal tribunal would only accept fresh evidence in that case if it was not reasonably available at the time the proceeding was heard and determined. The QCAT wrote:

Ordinarily, an application for leave to adduce fresh evidence must satisfy three tests:

(a) Could the parties have obtained the evidence with reasonable diligence for use at the trial?

(b) If allowed, would the evidence probably have an important impact on the result of the case?

(c) Is the evidence credible?[33]

1. In Fernando v Medical Complaints Tribunal (No 2),[34] a case involving an appeal to the Tasmanian Supreme Court from an occupational disciplinary decision of the Medical Complaints Tribunal, Blow J (as his Honour then was) decided that the appeal was in the nature of a rehearing (as in the present appeal). However, the Supreme Court had no express statutory power to admit fresh evidence on appeal (unlike the context in which the Appeal Tribunal decides the issue in the present appeal). His Honour considered leading judicial decisions and concluded that it was appropriate for the established case law relating to appeals from courts on the ground of fresh evidence to be applied in relation to appeals from statutory tribunals.[35] He noted that courts have taken a different approach to the implications of fresh evidence in criminal and civil proceedings. Appellate courts exercising jurisdiction in relation to civil matters have traditionally given greater weight to the desirability of finalising litigation.[36]
2. His Honour seemed to accept the submissions of counsel for the appellant medical practitioner that the well-settled requirements as to fresh evidence are that:

(a) it is potentially credible;

(b) it was not available to the appellant or his legal advisers before the tribunal made its decision;

(c) it was evidence which the appellant and his legal advisers could not reasonably have been expected to obtain with the exercise of due diligence before the tribunal made its decision; and

(d) it would have made a different result in the tribunal proceedings so likely that the matters before the tribunal should be reconsidered or re‑determined.[37]

1. In Arnot v Commissioner of Fire and Rescue NSW,[38] the New South Wales Industrial Commission considered the operation of section 191 of the Industrial Relations Act 1996 (NSW).
2. Subsection 191(1) of the Act provides that an appeal to the Full Bench of the Commission:

(a) is not by way of a new hearing; and

(b) is to be determined on the evidence and material which was before the person whose decision is the subject of the appeal.

1. Subsection 191(2) creates an exception to this default position, permitting the Full Bench to receive, by leave, "further evidence":

(a) if it considers that 'special grounds' exist which warrant the admission of the further evidence which was not before the original decision maker; or

(b) if the evidence "concerns matters occurring after the decision appealed against."

1. Having considered various judgments, including that of Clarke JA in Akins, the Commission wrote:

In summary, for the Commission to find that 'special grounds' of the kind described in section 191(2) of the Act exist, it must first be satisfied that:

(a) The Appellants knowing of the Fresh Evidence, deliberately elected not to tender it;

(b) Even if the Appellants did not know of the Fresh Evidence, it could not, with reasonable diligence, have been obtained and relied upon by the Appellants at first instance;

(c) had the Fresh Evidence been relied upon by the Appellants at first instance, there is a high degree of probability that the Decision would ... be different;

(d) the Fresh Evidence is credible and, for this reason, does not:

(i) give rise to disputed questions of fact; nor

(ii) rest upon the credibility, or alleged lack thereof, of untested evidence;

(e) electing not to grant leave to the Appellants to adduce Fresh Evidence in the Appeal would cause a 'miscarriage of justice' of the kind contemplated by the Full Bench in Bowen.[39]

1. In CCH Australia Ltd v Bowen,[40] the Full Bench held:

... having in mind the terms of s 191(2) of the Act, and the powers on appeal available under s 192(1) thereof, we would not wish it to be taken as our view that further evidence to be heard on appeal it must necessarily be of such a nature as would make it almost certain that an opposite result would have been reached if the evidence had been adduced at first instance ... .

Given that each case requires consideration in light of its own particular circumstances, it seems to us only open to hold ... that the purpose of fresh evidence is to avoid ''a miscarriage of justice'' and... that the power to allow further evidence on appeal ''is exercised rarely and in exceptional circumstances only.''

Our opinion is that the potential mischief if the evidence is not admitted must be sufficiently operative on the challenged decision and as would cause real prejudice to the party seeking to lead such additional evidence if it were not given....[41]

1. Although the statutory provisions applicable to the Appeal Tribunal are not identical to section 191 of the Industrial Relations Act 1996 (NSW), the criteria adopted by the Industrial Relations Commission inform the approach to be adopted in the present appeal.
2. While accepting that:

(a) leave to provide further evidence about questions of fact should be granted only in exceptional circumstances where it serves the demands of justice to do so; and

(b) it is not possible to formulate a definitive test governing the admissibility of further evidence on appeal,

the Appeal Tribunal draws from the authorities referred to above to proceed on the basis that, in deciding whether to grant leave to admit the further evidence on which Ms Pye seek to rely, we should consider:

(a) whether the evidence was available at the time of the hearing before the Original Tribunal;

(b) if the evidence was available at that time, whether it could have been reasonably obtained and tendered or adduced orally at the hearing;

(c) if the evidence was available, whether the party chose not to tender or adduce it (or whether there is an acceptable reason why it was not brought at the original hearing);

(d) whether the evidence is credible;

(e) if the evidence had been available to the Original Tribunal, whether it would (or would be likely to) have produced a different result.

1. It will not be necessary to consider each of those conditions in relation to every item of proposed further evidence. For example, if evidence is not credible then it could not have affected the outcome of the case. If the proposed further evidence could not have affected the outcome, then it is immaterial whether or when it was available to Ms Pye.
2. Having set out what section 82 and Rule 91(c) provide, it is appropriate to express colloquially what they do not provide.[42] Dealing with an appeal as a review of an original decision under section 82 is not simply an opportunity for an unsuccessful party to have a "second bite of the cherry." To succeed, an appellant must be able to satisfy the Appeal Tribunal that the Original Tribunal made an error (or errors) of fact or law. Similarly, the fact that Rule 91(c) provides that leave must be granted before further evidence about questions of fact is received shows that Rule 91(c) does not give an unsuccessful party free reign to "plug the gaps" in their case that were exposed by the reasons for decision of an Original Tribunal.

Further evidence - some rulings of the Appeal Tribunal

1. There are numerous grounds of appeal (see [108]-[115] below). Many items of proposed further evidence were provided in response to alleged errors of fact by the Original Tribunal in a particular paragraph or paragraphs of its reasons for decision. Consequently, it is appropriate not to make general rulings about whether leave is granted to receive that evidence. Rather, most rulings will be made when dealing with the specific errors which Ms Pye submits were made by the Original Tribunal or specific grounds of appeal to which the evidence might apply.
2. However, some initial observations and rulings are best made at this stage of these reasons for decision.
3. First, in reaching the understanding about Ms Pye's concerns and current circumstances set out above (see [26]-[52]), the Appeal Tribunal considered some documents which Ms Pye asked the Appeal Tribunal to receive as further evidence. As already noted, those concerns and circumstances cannot determine the outcome of the appeal. Indeed, some of the documents concerned circumstances that have changed since the original hearing (and hence could not have produced a different result). Consequently, the Appeal Tribunal has decided not to receive the documents in evidence on the appeal.
4. Second, in advance of the hearing of her appeal, Ms Pye asked the Appeal Tribunal to permit her to provide further evidence which did not exist at the time of the hearing before the Original Tribunal or at the time of her application. The proposed evidence was a further report on a temperament assessment of Buddha.
5. It appears that the impetus for this application dates back to about one year before the hearing before the Original Tribunal when Ms Pye was seeking to obtain an assessment of Buddha.
6. On 21 May 2021, a Senior Member of the tribunal ordered that:

The respondent [the Registrar] shall provide access by a vet and/or an animal behaviour assessor, either together or separately, to the dog "Buddha" for the purpose of assessment of the dog's health and behaviour. Such access shall be provided on or before 31 May 2021, and the applicant shall give the respondent 24 hours' notice of the time and date for access by email to dogcontrol@act.gov.au

1. Ms Pye arranged for a vet to attend, and the booking was confirmed for Tuesday, 25 May 2021 at 9:15am. However, when the vet arrived he was turned away, apparently on the basis that DAS would not allow him to enter because they wanted their vet to be present and because the visiting vet was not wearing appropriate footwear.[43] They offered to re-book the appointment for Friday, 28 May 2021.[44]
2. The matter returned to the Senior Member on 27 May 2021. Ms Pye advised that she was having difficulty obtaining the services of a vet who would attend DAS premises by the relevant date or, perhaps, at all.[45] The Senior Member said that she was "appalled" at the behaviour of DAS,[46] and observed that it was never a condition of the tribunal's order that a DAS vet be present. Accordingly, that was not a reasonable excuse to fail to comply with the tribunal's order.[47] Instead, the tribunal's orders were "subverted" and "frustrated."[48] The inability of the vet to attend as scheduled appeared to have the consequence that Ms Pye was prevented from obtaining evidence to present to the tribunal to ensure that she had a fair hearing, by being able to put her case and to test the evidence put by the Registrar.[49] The Senior Member also criticised the behaviour of DAS as being inconsistent with a government entity's obligation to be a model litigant.[50]
3. Eventually the parties agreed that a vet acceptable to Ms Pye would be able to attend the DAS premises on the morning of Friday, 28 May 2021.[51] The tribunal made orders that the Registrar arrange and facilitate access to Buddha by a named vet at the DAS facilities at noon on 28 May 2021, and that the vet provide to the parties and the tribunal a written report of her assessment. According to Ms Pye, at the original hearing, the vet arrived but did not conduct the assessment because of other circumstances.[52] A written report was not prepared.
4. Ms Butler, a professional dog trainer, assessed Buddha at the DAS premises on 21 February 2022. Buddha was brought into one of the yards and Ms Butler conducted the assessment in the way described in her report dated 24 February 2022, which was evidence in the original hearing.[53]
5. According to Ms Pye, Ms Butler "could not provide a full assessment." Ms Butler gave evidence at the original hearing that the second part of the assessment (with Ms Pye and Buddha) could not be done. The purpose of that type of assessment was to see Buddha's relationship with Ms Pye and her "capability to handle a dog of that calibre." Ms Butler would have attempted to see whether Buddha would "intensify" more with Ms Pye than with a handler at DAS.[54]
6. In her amended Application for Appeal filed on 23 June 2022, Ms Pye sought an interim order to "allow a full temperament assessment from an independent assessor, off site, to determine the dogs true temperament."
7. At a Directions Hearing on 24 June 2022, Orders were made that included a requirement that Ms Pye give to the Registrar and the Tribunal by 8 July 2022 "a description of any proposed further evidence for the hearing of the appeal and how that evidence might be obtained." When that Order was made, the tribunal made it clear to Ms Pye that even if such a report was prepared, she could not be certain that leave would be granted for it to be admitted as further evidence of the hearing of the appeal.
8. On 13 July 2022, Ms Pye sent an email to the Registrar's legal representative attaching the requirements for Ms Susan Turner-Davis to proceed with the temperament assessment of Buddha at a licensed boarding and training facility in Yass, New South Wales. That would require transporting Buddha from the DAS facility to Yass and returning him after the assessment. Ms Pye noted that Ms Turner-Davis was available that week to complete the assessment. She asked the lawyer to inform the Registrar of the requirements for the assessment to take place and to inform her of the day and time Buddha could be dropped off.
9. In her email to the Appeal Tribunal dated 14 July 2022, Ms Pye wrote:

I asked the tribunal to accept new evidence from Susan Turner-Davis, Temperament assessor for OLG NSW National Dog Trainers Federation if it becomes available by way of behavioural assessment which I have requested the registrar of DAS to allow due to the fact that I have not been able to provide a full behavioural assessment for Buddha as a defence against the two assessments produced by Mr Bruno Grutzner for Domestic Animal Services. (emphasis added)

1. Ms Pye submitted that the Appeal Tribunal should allow that new evidence because "My attempts for a full assessment have been obstructed time and again, this has continuously been in favour of Domestic Animal Services, and I have not been able to fully defend my dogs during any stage of these proceedings."
2. The Registrar's legal representative advised Ms Pye by email on 14 July 2022 that his client instructs that "it is not possible for DAS to facilitate assessment in Yass" and provided reasons for taking that position, including that transporting Buddha to Yass for the assessment would involve "a major safety risk."
3. After further email correspondence between Ms Pye and the Registrar's legal representative, Ms Pye sent an email on 20 July 2022 asking for a list of reasons and factors why the proposal for the assessment were an "unreasonable safety risk." She also responded to the statement that it was not possible to facilitate the transport of Buddha for the assessment. Ms Pye stated that the purpose for the assessment was "due to the fact that I was not afforded the opportunity for a full assessment from Eleni Buttler previously, nor any other assessor I have lined up to assess Buddhas temperament in the past." She continued:

The need for the assessment is due to the fact that I need to know the mental state of my dog considering he has been impounded for 236 days today and 218 days in his last impoundment and he is only 3 years and 7 months old. ... You have not let him see me at all during all that time.

450+ days in the DAS facility and not even 1 single visitation has been granted for myself or anyone else to visit Buddha. ...

If an independent assessment gives an unfavourable report, I must obviously consider my own safety along with the safety of the public. Without the opportunity to know what any other expert has to say, I feel like the incorrect decision is going to be made.

1. Ms Pye noted that the assessor from Yass was willing to travel to Canberra to do the assessment and asked that Buddha be transported for the assessment to take place on Ms Pye's property. As a last resort, Ms Pye suggested that the assessment take place at DAS, even though that was "wholeheartedly against the independent assessor's wishes as she does not believe she will get a proper result in that environment." It would also require Ms Pye's attendance for part of the assessment which, for other reasons, would be problematic.
2. After subsequent email correspondence, the lawyer sent an email to Ms Pye on 22 July 2022 advising that DAS would not make Buddha available for further assessment in Canberra, either at Ms Pye's premises or at the DAS facility. The email set out reasons for declining her request and stated that this was the client's "final position on the matter."
3. That series of events explains why Ms Pye said to the Appeal Tribunal on 8 August 2022 that such evidence does not exist. In her contention, if the new evidence was able to be provided, it would have assisted the Appeal Tribunal "to be able to make a fair & proper decision in relation to the destruction of Buddha. It would have also assisted myself in making the correct decisions on how and if I wanted to proceed in the matter by having a clear understanding of Buddhas current temperament after an extremely long impoundment exceeding 260+ days."[55]
4. In response to Ms Pye's initial indication that she would seek to adduce new evidence about Buddha's behaviour from Ms Turner-Davis, a dog behaviourist, the Registrar submitted that the reason for Ms Pye wanting to call such evidence did not assist the Appeal Tribunal to understand the evidentiary value of that evidence. Consequently, the Registrar opposed leave being granted and noted that an expert behaviourist of Ms Pye's choice, Ms Butler, provided an expert report and gave evidence at the original hearing.[56]
5. The Registrar also opposed any attempt by Ms Pye to adduce further evidence from Ms Butler by way of comment on the Original Tribunal's decision in relation to Buddha's behaviour.[57] In the Registrar's submission, such evidence cannot be accepted and must be disregarded. Questions regarding Buddha's temperament could have been asked at the original hearing. The appeal is not an opportunity to improve one's case.[58]
6. The Original Tribunal had evidence provided by each party in relation to Buddha's behaviour and temperament. That included evidence from Mr Grutzner and Ms Butler. The Original Tribunal also had written, oral and video evidence in relation to incidents involving Buddha's attack on Tonner and Mr Li as well as an attempt to bite Mr Grutzner.
7. It is not possible to say whether any additional behavioural assessment would have led to a different outcome. As Ms Pye stated, the new evidence might have assisted the Appeal Tribunal to make a fair and proper decision. It might have confirmed the other evidence before the Original Tribunal. It might have been an "unfavourable" report. As no such evidence was produced before or at the time of the hearing of the appeal, neither the parties nor the Appeal Tribunal can say with certainty whether it could have affected the outcome of the appeal.
8. It is not for the Appeal Tribunal to speculate on such matters. No such evidence was available at the time of the hearing of the appeal. Even if it had been, there was no guarantee that it would have been received into evidence. The Appeal Tribunal cannot make a ruling in relation to evidence that does not exist.

1. As noted earlier, the grounds of appeal were set out in the application for appeal, the revised application for appeal, and Ms Pye's written submissions filed in the Tribunal registry on 13 July 2022. The latter document comprises a copy of the reasons for decision of the Original Tribunal which has been supplemented by Ms Pye's critique immediately after each paragraph which, she contends, contains errors. The latter document contains the most specific and comprehensive reasons for her appeal.
2. The Registrar responded to Ms Pye's submissions in relation to each such paragraph, and she provided submissions in reply to the Registrar's submissions. The Registrar made some further submissions in reply. Accordingly, it is convenient and appropriate for the Appeal Tribunal to consider each ground of appeal identified in that way. Having done so, we will then consider the other submissions made by Ms Pye.
3. Before considering the particular submissions, we note that the reasons for decision of the Original Tribunal were structured as follows: Introduction (paragraphs [1] to [6]), The evidence (paragraphs [7] to [11]), Background (paragraphs [12] to [58]), The Original Tribunal's assessment of Ms Pye's evidence (paragraphs [59] to [69]), Consideration - cancellation of the dangerous dog licences (paragraphs [70] to [75]), and Consideration - destruction of Buddha (paragraphs [76] to [79]).
4. The parts of the Original Tribunal's reasons for decision devoted to the consideration of the cancellation of the Dangerous Dog Licences and the destruction of Buddha are summarised above (at [6]-[7]).
5. The Appeal Tribunal makes two observations about Ms Pye's submissions. First, almost all of the submissions were made in respect of paragraphs in the parts of the reasons devoted to Background and to the Original Tribunal's assessment of Ms Pye's evidence. Only one of the submissions related to paragraphs toward the end of the reasons for decision in which the Original Tribunal set out its considerations in relation to the cancellation of the dog licences. The significance of the focus of the submissions will become apparent.
6. Second, Ms Pye submitted that, although each individual error which she contends was made by the Original Tribunal "may not in itself be 'material', the cumulative effect may have had some effect on the Original Tribunal's conclusions."[59]
7. In reply, the Registrar submitted that, while Ms Pye relies on the cumulative effect of the contended errors, she has not identified or submitted "what that effect is." In the Registrar's submission, none of the errors of fact would have materially affected the decision appealed from, even if the identified errors of fact were to be considered together with the additional documents filed by Ms Pye.[60]
8. Those submissions provide the context in which the Appeal Tribunal now considers each of Ms Pye's submissions in relation to specific findings made or conclusions reached by the Original Tribunal in the following paragraphs of the reasons for decision: paragraphs 14, 15, 17, 22, 27, 33, 34, 38, 40, 41, 42, 45, 46, 48, 50, 54, 59, 60, 61, 63, 64, 68, and 71. In dealing with submissions in relation to some of those paragraphs it will be necessary to consider what the Original Tribunal wrote elsewhere in the reasons for decision.

1. The Original Tribunal recounted a series of events commencing on 3 March 2020 when Ms Pye sought veterinary treatment of Tonner for injuries resulting from a fight with Buddha. DAS carried out a compliance check on the dogs which established that both were sexually entire. On 6 March 2020, the Registrar issued Ms Pye with Notices to Comply regarding each dog. The Original Tribunal then recorded that on 19 October 2020, the Registrar issued Ms Pye with a second Notice to Comply regarding Buddha being sexually entire.[61]
2. Ms Pye submitted, in relation to the last statement, that the notice was responded to by way of an application to keep dogs sexually entire. That application was dated 23 September 2020. According to Ms Pye, an email from DAS on 13 October 2020 confirmed that they had received the application, but no action was taken. In her submission, this was the first notice to comply.[62] In support of her submission, Ms Pye referred to her statement in relation to the original matter before a differently constituted tribunal (AT 38/2021 and AT 39/2021 ‑Attachment A1) and suggested that, if the tribunal was familiar with this, it would be incorrect for the Original Tribunal to refer to this as a reason for decision.[63]
3. The Registrar submitted that Ms Pye's statement has no relevance or materiality to this appeal[64] and that it would be difficult to ascertain the evidentiary value on appeal whether it was the first or second notice to comply regarding Buddha being sexually entire. The Registrar contended that it is undisputed that Ms Pye did not comply with notices issued by the Registrar and later orders issued by the Original Tribunal. In addition, the Registrar submitted that the Appeal Tribunal cannot accept Ms Pye's submissions in relation to that being the first instance of non-compliance given the documents available in two sets of Tribunal documents (AT 38/2021 and AT 39/2021, AT 7/2022 and AT 8/2022).[65]
4. The Appeal Tribunal has concluded that the evidence before the Original Tribunal in proceedings AT 7/2022 and AT 8/2022 included evidence of Notices to Comply in relation to Buddha dated 6 March and 19 October 2020. The statement made by the Original Tribunal finds support in that evidence. Whether the notice referred to by Ms Pye was the first or second notice is immaterial to the issue to be decided in this case, which involves later breaches of a Dangerous Dog Licence and Buddha biting Mr Li.
5. Consequently, we are satisfied that even if the Original Tribunal was in error on this point, it could not have affected the outcome of the original proceedings. This ground of appeal fails.

1. The Original Tribunal recorded that on 19 January 2021, the Registrar issued Ms Pye with a third Notice to Comply regarding Buddha and a second Notice to Comply regarding Tonner. Ms Pye failed to comply with the notices and on 4 February 2021, DAS rangers seized Buddha and Tonner, exercising powers of seizure under division 2.7 of the DA Act.[66]
2. Ms Pye submitted that, having received the second notice, she was advised that she needed to pay $424 per dog when applying to keep each dog sexually entire. She explained that she could not afford to risk losing that amount of money if DAS was not going to approve the applications. On 11 February 2021, she received an email to the effect that she could apply for the permit without the fee and could make payment when the applications were approved. By that stage, both dogs had been seized for non-compliance with the desexing notices. Ms Pye stated that she had given permission for the DAS to desex the dogs so that they could be returned to her as soon as possible. That was confirmed in email correspondence on 11 February 2021, but the dogs were not desexed until 23 August 2021.[67] Again, Ms Pye contended that the relevance of her submission can be found in her statement in the other proceedings AT 38/2021 and AT 39/2021 - Attachment A1.[68]
3. The Registrar acknowledged that Ms Pye provided an explanation of why she did not comply with the notice and submitted that the point made by Ms Pye has no relevance or materiality to this appeal.[69]
4. The Appeal Tribunal notes that the delay in desexing Buddha can be readily explained. As noted earlier, the Deputy Registrar issued a Notice of Decision to Destroy Buddha on 21 April 2021. Ms Pye commenced proceedings in the tribunal to review that decision. On 20 August 2021, the tribunal made orders to set aside the decision to destroy Buddha and to substitute a decision that Buddha be declared a dangerous dog and be released to Ms Pye, once she had demonstrated compliance with specified conditions of the Dangerous Dog Licence. One of those conditions was that Buddha must be desexed at Ms Pye's expense prior to him being released to her. The Registrar was to arrange Buddha's travel to a veterinarian of Ms Pye's choosing for that purpose. The desexing of Buddha occurred on 23 August 2021, soon after the orders were made.
5. The Appeal Tribunal has concluded that, Ms Pye's submissions in relation to paragraph [15] are not material to the issues in this appeal. They do not alter the fact that Ms Pye did not comply with the notice. The ground of appeal must fail.

1. The Original Tribunal stated that on 21 April 2021, after completing an investigation into a series of documented complaints of aggressive, roaming, and harassing behaviour by the dogs, the Registrar made the decision under section 68A of the DA Act to destroy Buddha and Tonner.[70]
2. Ms Pye submitted that the decision to destroy both dogs was based on unsupported allegations by neighbours who seemed to have rallied against her. She stated that no witnesses were available to support the allegations at any time during the hearing when she was appealing (that is, seeking review of) the decision through the tribunal.[71]
3. The Registrar repeated the submission made at the hearing before the Original Tribunal[72] that, whilst the decision was relied on for background and the context of the decision, which was before the Original Tribunal, it is the subject of a decision which has been dealt with and should not be re-examined given that it was not overturned on appeal. Accordingly, the Registrar submitted that Ms Pye's point is immaterial to this appeal.[73]
4. The Appeal Tribunal notes that the Original Tribunal referred to and apparently relied on information in the DAS Case Summary exhibited in those proceedings.[74] We also note that Ms Pye applied successfully to the tribunal for merits review of the Deputy Registrar's decisions and, on 20 August 2021, a differently constituted tribunal made orders setting aside the decision to destroy the dogs and substituted decision that the dogs be declared dangerous dogs pursuant to section 22(2)(b)(i) and (ii) of the DA Act. The tribunal ordered that the dogs be released on licence to Ms Pye upon her demonstrating compliance with certain conditions of the Dangerous Dog Licence specified in the orders. Those events were recited by the Original Tribunal.[75]
5. Accordingly, the Appeal Tribunal has concluded that the Original Tribunal relied on evidence to make the statement to which Ms Pye objects and that, even if the Deputy Registrar had made a decision based on unsupported allegations, that decision was subsequently set aside by a differently constituted tribunal. The Original Tribunal noted the set-aside decision. It follows that the Registrar's overturned decision was not a basis for the decision of the Original Tribunal. The events recorded by the Original Tribunal in that part of the reasons for decision provide background or context for what follows but not the basis of the Original Tribunal's decision. This ground of appeal must fail.

1. The Original Tribunal recorded that Ms Pye appealed the other tribunal's decision declaring the dogs to be dangerous but ultimately did not pursue the appeal. The Original Tribunal continued, "the reasons why she did not are immaterial to this application. The tribunal's earlier decision is not open to challenge in this application."[76]
2. The Registrar stated that the main reason for the appeal in the other case being dismissed related to Ms Pye's being required to file and serve appeal material by 4 January 2022. She failed to do so without reasonable explanation.[77]
3. In her written submissions on this appeal, however, Ms Pye explained that she did not appeal because she had been advised that she was required to respond within seven days to a Notice of Intent to Cancel Special Licences for both dogs which she received on 24 December 2021. That was when her submissions for the appeal were due. She could not respond in time and the appeal deadline expired.[78]
4. The Registrar acknowledged that, in her submissions for this appeal, Ms Pye provided an explanation for not appealing to the finding declaring both dogs to be dangerous dogs. However, the Registrar submitted that Ms Pye's submissions regarding the Notice of Intent to Cancel Special Licence has no bearing on whether she should have filed and served the material requested in order for the appeal in the other matter to be heard and determined. The Registrar also submitted that (as the Original Tribunal had concluded) her reasons for not progressing the appeal were immaterial to the decision under review. Consequently, they are immaterial to this appeal.[79]
5. The Appeal Tribunal notes that the Notice of Intent to Cancel the Special Licence for Buddha was dated 17 December 2021. It advised Ms Pye that she had seven days from the day following service of the notice to provide a written submission. Ms Pye said she received the notice on 24 December 2021. According to the Notice of Cancellation of the Special Licence dated 6 January 2022, Ms Pye contacted the Registrar's legal representative by email on 2 January 2022. The Registrar considered her written submission when deciding whether to cancel the Special Licence.
6. The appeal proceedings in the tribunal were separate from the process with the Registrar about the proposed cancellation of the Special Licence. Ms Pye was able to respond to the Registrar but apparently not to the tribunal by the due date.
7. The Appeal Tribunal accepts that a combination of factors might have influenced whether Ms Pye could file and serve appeal material by the due date. Clearly both processes were running around Christmas time and, as they dealt with the same dog, it might be that Ms Pye did not appreciate the need to comply with both timeframes or found it difficult to do so. It is not for the Appeal Tribunal to speculate on such matters. The key point is that the appeal proceedings in the tribunal were separate from the other engagement with the Registrar, and the fact that Ms Pye did not pursue the appeal is immaterial to whether the Original Tribunal erred in deciding this case. The Original Tribunal was correct in concluding that the tribunal's decision declaring the dogs to be dangerous was not open to challenge in proceedings before the Original Tribunal. Consequently, this ground of appeal must fail.

1. As a further part of setting out the chronology of events, the Original Tribunal stated that on 30 September 2021, a differently constituted tribunal made orders requiring Ms Pye to give vacant possession of the premises in which she lived by 5 October 2021. Ms Pye brought her change of circumstances to the attention of both the tribunal and the Registrar on 1 October 2021 at a directions hearing relating to her appeal against orders made by the tribunal on 20 August 2021 that Buddha was a dangerous dog and could be released to Ms Pye on strict conditions. The Registrar undertook to consider on an urgent basis any application for the dogs to be housed at an appropriate boarding kennel. However, Ms Pye did not make such an application.[80]
2. In her written submission Ms Pye explained the circumstances in which she did not find an available boarding kennel for both dogs which would comply with the tribunal's orders, but she had made other arrangements. Her brother, acting with power of attorney on her behalf, contacted the tribunal to inform it of the new location of the dogs but asked that the location of the dogs be redacted "due to the fear of having the dogs seized for not residing at" Ms Pye's previous address. The tribunal informed the ACT Government Solicitor that the information about whether dogs were being kennelled had been provided to the tribunal but the tribunal had been asked that it be redacted. According to Ms Pye, that "left us to believe that we were still being compliant of the orders otherwise we believe the tribunal would have informed us otherwise."[81]
3. The Registrar noted that Ms Pye provided an explanation for not making any application with respect to housing the dogs at an appropriate boarding kennel. Ms Pye, however, restated the arguments she made from the witness box at the hearing before the Original Tribunal as to why she did not consider she failed to comply with obligations to inform the Registrar where the dogs were kennelled.[82]
4. The Registrar submitted that to the extent that the information about her living circumstances at the time deal with not bringing an application to the tribunal or address her living circumstances, these points have no relevance or materiality to this appeal.[83]
5. The Appeal Tribunal has concluded that, although Ms Pye attempted to find alternative accommodation for the dogs once she had left the location specified in the conditions of her Dangerous Dog Licence, she was in breach of those conditions by not advising the Registrar of the changes. The tribunal "stands in the shoes" of the Registrar when hearing applications to review the Registrar's decisions, but the tribunal is not substituted for the Registrar for the Registrar's day to day operations. The notification of the tribunal in relation to the new location did not comply with the requirement that Ms Pye notify the Registrar of the address where her dogs resided whenever the address changed. Her notice to the tribunal had, at best, the effect that the Registrar was on notice that her dogs were no longer at their original address but were at another address.
6. Unsatisfactory as her circumstances were, the Original Tribunal did not err in reciting them in the chronology of events. That recital provided context to the findings and decisions later in the reasons for decision. The circumstances described in paragraph [27] of those reasons (and the following few paragraphs) were not central to the Original Tribunal's decision. From Ms Pye's perspective, the recital might have been incomplete. But it was not wrong. This ground of appeal must fail.

1. The Original Tribunal recorded that, on 8 October 2021, the lawyer for the Registrar wrote to Ms Pye again demanding that she provide the current address where the dogs resided and reminding her of her ongoing obligation to inform the Registrar of the address where her dogs resided whenever the address changed. As Ms Pye had nowhere to live, she claimed that she stayed at a pet friendly hotel, keeping Buddha with her and leaving Tonner with her father. After two nights, she swapped the dogs, keeping Tonner with her and leaving Buddha with her father. None of those arrangements were disclosed to the Registrar. Ms Pye did not provide receipts or any other documentary evidence to substantiate the claim about her living expenses at that time.[84]
2. Ms Pye submitted that, under the "unfortunate circumstances" in which she found herself, she had no option but to keep one dog with her in a dog friendly hotel for a couple of nights until there was a vacancy at Tara where both dogs were kept from 12 October until 27 November 2021, at a cost to her in excess of $3,800.[85]
3. The Registrar submitted that:

(a) to the extent that the information about her living circumstances at the time dealt with not bringing an application to the tribunal or address her living circumstances, these points have no relevance or materiality to this appeal; and

(b) to the extent that the information raised an issue with Ms Pye's compliance with her obligations, the Original Tribunal was correct in concluding (at least obliquely) that the kennelling arrangements ought to have been disclosed to the Registrar but were not.[86]

1. The Appeal Tribunal has concluded that, although Ms Pye's accommodation circumstances were unfortunate, the Appeal Tribunal is not satisfied that the statements of fact in paragraph [33] of the Original Tribunal's reasons for decision are incorrect. Nor would the issue raised by Ms Pye have affected the outcome of the case before the Original Tribunal. This ground of appeal fails.

1. The Original Tribunal stated that, on 12 October 2021, Ms Pye secured accommodation at Tara and that the manager of Tara, Charlie Dimoff, later informed a senior investigator with DAS that Ms Pye did not inform Tara that the dogs were declared to be dangerous dogs and needed to be housed separately. Staff became aware of that fact later.
2. Ms Pye submitted that the statement about her not informing Tara about the dangerous dogs status of Buddha and Tonner was "not true" and that she had "since had confirmation from the manager" of Tara that they were informed that both dogs were registered as dangerous dogs in the ACT.[87] Ms Pye provided no evidence from the manager to the Appeal Tribunal.
3. The Registrar submitted that, as there was no evidence to the contrary advanced in relation to the record of the telephone conversation contained in Exhibit R2, the Original Tribunal was correct in its finding. In the alternative, even if the Original Tribunal did not make that finding, the point is not material to the appeal.[88]
4. The Appeal Tribunal notes that the Original Tribunal referred to written evidence in relation to what the manager of Tara told DAS staff and the date and time of that conversation.[89] For present purposes, it is sufficient to note that the record of the telephone call on 29 October 2021 included Charlie's advice that Ms Pye did not inform him that Tonner and Buddha "were declared dangerous dogs." The note continued, "Had he known the dogs' history and the fact that they had to be separated from each other and other dogs, he would have charged more. Charlie advised that he has no concerns for staff saf[ety] or other animals at the moment and, should this change, he will contact DAS immediately."
5. The Appeal Tribunal has concluded that, on the evidence available to the Original Tribunal (which is the same evidence available to the Appeal Tribunal), the Original Tribunal did not err in the way suggested by Ms Pye. This ground of appeal must fail.

1. The Original Tribunal concluded that the evidence established that Ms Pye did not believe that her dogs were dangerous and referred to her evidence in the hearing including a response to a question from the Original Tribunal which supported an adverse finding about her.[90]
2. In her written submissions, Ms Pye contended that she believed that "the way in which I answered the members question may have come across the wrong way." In her submission, as she was not a tenant at the Cape Street address and was not intending to reside there full-time, she did not think she would have to seek permission to visit the address with a registered dangerous dog. That was "a misunderstanding on my part, one of which I'm still not sure ... what I need to do if I were to visit anyone else's address with my dog and stay overnight."[91] She added that there was no order stating that she could not remove the dogs from a boarding facility for the purpose of exercise, training or rehabilitation.[92]
3. The Registrar stated that the explanation provided by Ms Pye is not a matter to which it can fully and meaningfully respond. However, the Registrar submitted that Ms Pye "did not cavil with the overarching observation that she did not believe that her dogs were dangerous." Further, the Registrar submitted that, even if there was a misunderstanding in the Original Tribunal's questioning, it was not material to this appeal given the overall evidence given by Ms Pye during the substantive hearing.[93] In reply to her other point, the Registrar accepted that there were no orders in relation to removing the dog from a boarding facility. However, the Registrar submitted that was not the essence of the Original Tribunal's findings in the paragraph in dispute. Therefore, Ms Pye's submissions should not be given any weight.
4. The Appeal Tribunal has concluded that the submission made by Ms Pye discloses no substantive error by the Original Tribunal. This ground of appeal must fail.

1. The Original Tribunal recounted in detail the circumstances on 24 November 2021 when Buddha bit Mr Li in the car park of the apartment block where Ms Pye was staying after she let go of the lead, unlocked her vehicle, and unloaded what she was carrying. The Original Tribunal wrote "Medical records confirm that the bite was to the back of the right thigh and left three small full thickness puncture wounds." Both the CCTV footage and Mr Li's evidence satisfied the Original Tribunal that the attack on Mr Li was "completely unprovoked".
2. Ms Pye submitted, in effect, that the Original Tribunal made an error of fact because medical records from Calvary Hospital state that the man had "A puncture wound and superficial bruising" to his upper right leg. Ms Pye continued, "This level of bite on the Dunbar bite scale is between a level 2 & 3. This level is not a seizable offence according to the domestic Animals handbook."[94] She added that, as she had explained previously, Buddha "had never acted in this way towards anyone before." Further, the "level of an attack is different to the level of a puncture wound."[95]
3. The Registrar stated that, although the Original Tribunal's conclusion pertained to the attack being unprovoked, Ms Pye was contending that the bite was not of sufficient gravity to be a serious injury. The Registrar submitted that, in circumstances where the discretion in section 53C of the DA Act does not require an injury to be a serious injury to arise, Ms Pye's point is not material to this appeal.[96] Further, the Registrar submitted that Ms Pye's later submissions demonstrate that she still has difficulties accepting that Buddha could injure a person despite the evidence from Mr Li and medical records supporting the attack.[97]
4. The Appeal Tribunal has considered the evidence before the Original Tribunal including the video recordings at the time of the attack on Mr Li, his oral evidence, photographs of his wound, and the medical records. It is clear that Mr Li suffered an injury. That is evident from the three puncture marks shown in photographs before the Original Tribunal.[98] According to his witness statement,[99] the effect of the injury for Mr Li was that during the first week after being bitten by Buddha he could not bend his leg, it hurt when he walked and sat down, and he could not sleep well because of the pain. The wound was sensitive to touch and to clothing, and he was uncomfortable when showering. The wound took about a month to heal. Even at the date of his witness statement, more than two months after the incident, he described walking as "abnormal" and standing for a long time made the wound "painful." He did not have part-time work for two weeks after the incident.
5. The Original Tribunal accepted that the pain from the dog bite continued making it difficult for him to sleep, sit down, or work; that Mr Li needed two weeks off work as a result, and that the pain settled own after about four months.[100]
6. The Registrar sent a Notice of Decision to Destroy dated 6 January 2022 to Ms Pye. In that Notice, the Registrar advised that having considered the incident on 24 November 2021 when Buddha attacked a person unprovoked and the attack caused injury, he had decided under section 53C of the DA Act to destroy Buddha.
7. The parts of section 53C of the DA Act that are relevant to these proceedings state:

(1) This section applies if the registrar is reasonably satisfied, because of a complaint or otherwise, that a dog-

(a) attacked a person ... and the attack caused-

(i) an injury (other than a serious injury) to the person; or

(2) The registrar may decide to destroy the dog.

(3) In making a decision under subsection (2), the registrar-

(a) must consider-

(i) the safety of the public and other animals; and

(ii) if the dog attacked a person ...-the circumstances of the attack including whether-

1. the person ... provoked the dog; or
2. the person ... was attacked because the dog came to the aid of a person or animal the dog could be expected to protect; or
   1. if the attack was on premises occupied by the keeper of the dog-the person ... was on the premises without lawful excuse; and

(b) may consider any other relevant matter. (emphasis added)

1. The dictionary to the DA Act includes the following definitions:

serious injury, to a person or animal, means either of the following:

_(a) any injury (including the cumulative effect of more than 1 injury) that - _

(i) endangers, or is likely to endanger, the person or animal's life; or

(ii) is, or is likely to be, a significant or longstanding injury;

(b) 1 or more serious dog bites.

serious dog bite means a wound from a single dog bite that has at least 1 puncture deeper than half the length of the dog's canine tooth, with or without bruising or lacerations around the wound.

1. Section 53C of the DA Act can be compared with section 53B which provides, to the extent it is potentially applicable to the circumstances of this case:

_(1) This section applies if the registrar is reasonably satisfied, because of a complaint or otherwise, that - _

(a) a dog attacked a person ...; and

_(b) the attack caused - _

(i) ...

(ii) serious injury to the person; or

(iii) ....

(2) The registrar must destroy the dog.

(3) However, subsection (2) does not apply if, and only if, the registrar is reasonably satisfied the dog is not likely to be a danger to the public or another animal.

_(4) For subsection (3), the registrar may consider - _

_(a) the circumstances of the attack including whether - _

(i) the person ... provoked the dog; or

(ii) the person ... was attacked because the dog came to the aid of a person ... the dog could be expected to protect; or

(iii) if the attack was on premises occupied by the keeper of the dog - the person ... was on the premises without lawful excuse; and

(b) whether reasonable steps can be taken to reduce the risk of the dog endangering the public and other animals; and

(c) any other relevant matter. (emphasis added)

1. It is clear from section 53C of the DA Act that the Registrar's decision whether to destroy the dog is discretionary. In cases like the present, the discretion is enlivened where a dog attacked a person and the attack caused "injury", which is an injury "other than a serious injury" as defined in the DA Act. In other words, it was not necessary that Mr Li suffered a "serious injury" (as defined) before the Registrar could exercise the power under section 53C. In deciding whether to destroy a dog, the Registrar must consider specified matters.
2. In the Notice of Decision to Destroy, the Registrar stated that he had considered matters including:
   • Buddha did attack a person unprovoked, in a public car park whilst not being under effective control, with the attack resulting in injury to a person.
   • A dog behavioural assessment undertaken by Mr Bruno Grutzner on Thursday, 2 December 2021 which found that Buddha was not suitable dog to be returned home or rehomed to another person. Buddha did not fit the "good citizen dog" standard, this being a balanced, gentle, well‑mannered/behaved, friendly dog.
   • Buddha was the subject of a Dangerous Dog Special Licence NTD2021‑006 at the time of the incident. In particular, Buddha was in breach of Specified Conditions 1, and 9(a), (b), (c) and (e) of the Dangerous Dog Licence.
3. The Registrar advised that, accordingly, he was not satisfied that there are reasonable steps that can be taken to mitigate the risk Buddha poses to the public or another animal. He added that he had made the decision in light of the overarching purpose of the legislation to ensure the safety of the public.
4. The Appeal Tribunal has concluded that Ms Pye has not raised a ground on which that part of the reasons for decision of the Original Tribunal could be reversed. The evidence does not support the ground of appeal, and that ground of appeal must fail.

1. The Original Tribunal summarised the evidence of Mr Li about his communications with Ms Pye immediately after Buddha bit him and why the incident was reported to DAS in the early evening of 24 November 2021.

Mr Li gave evidence that the applicant spoke to him immediately afterwards and apologised. She took down his name and contact details and promised to contact him in the next 30 minutes but never did. The applicant did not give her name or contact details to Mr Li. However, he or his companion took a photograph of the number plate of her car as she drove out of the building. As he did not hear from the applicant, they reported the incident to DAS in the early evening on 24 November 2021.[101]

1. Ms Pye submitted that the findings of fact were incorrect in some respects. She wrote:

I gave my details to Mr Li as I did not have my phone with me. Mr Li or his friend obviously did because they took a photo of my car when I was leaving. I believe he may have taken incorrect details down and this is why he later put a note on my car window threatening legal action if I did not contact him. I have since found the copy of the letter found on my car, which was found after my dog had been seized. Mr Li's original witness did not state that I would contact them within 30 minutes. This witness returned to Sydney and was not available for cross examination, Mr Li then gave someone else's name as a witness stating that they helped him contact Animal Services but I find this not to be a true statement as Mr Li's first witness stated that she helped him contact Animal Services.

I believe Mr Li's statement to be false and not a true statement of facts and do not believe that member should have believed Mr Li over My statements.[102]

1. The Registrar noted that, although Ms Pye broadly asserts that Mr Li is not a witness of truth, she does not dispute that the attack happened. In the Registrar's submission:

(a) the evidence adduced at the hearing clearly raised questions about Ms Pye's reliability as a witness and the Original Tribunal had the discretion to prefer one person's evidence over the other;

(b) preferring one person's evidence over the other's does not give rise to an error of fact or law, and the Appeal Tribunal should not disturb discretionary findings made by the Original Tribunal;[103] and

(c) even if the Original Tribunal accepted Ms Pye's version of events over Mr Li's version in this respect, it does not directly bear upon the main issues that were to be determined by the Original Tribunal, namely that an unprovoked attack had occurred.[104]

1. As noted earlier when considering the role of the Appeal Tribunal (see paragraph [21(c)]), the Appeal Tribunal will give proper allowance to the advantage of the Original Tribunal who saw and heard witnesses, so that ordinarily, facts found based on the assessment of witnesses will not likely be overturned.
2. In Sarbandi v Sharif,[105] another appeal tribunal referred to "well settled principles that govern how an appeal court or an appeal tribunal should proceed" in circumstances such as this.[106] It quoted from Cross on Evidence where the authors observe, quoting from numerous reasons for judgments:

The appellate court will naturally be loath to disturb a finding of fact by the trial judge who has had the advantage of observing the demeanour of the witnesses, "their candour or their partisanship, and all the incidental elements so difficult to describe which make up the atmosphere of an actual trial." ... The principle applies particularly where "the interests of individuals are divergent and conflicting, where personal feeling is acute, and where ... so much depends upon the character, personal motives and interests of individual persons." "Trial by transcript can seldom be an adequate representation of an oral trial..." Reading the transcript alone is not a substitute for seeing and hearing the witness, "since the transcript eliminates clues to voracity that are supplied by tone of voice, hesitation, body language, and other non-verbal expression." ... It does not follow that because the trial judge did not refer expressly to demeanour and credibility that they played no part in the judge's conclusions.[107]

1. Second, as the authors of Cross on Evidence also state by reference to judgments:

Errors of law or fact by the court below on other matters do not necessarily vitiate its conclusion on credibility. Hence it is unusual to set aside ... the findings of a trial judge based on the credibility of a witness unless it can be concluded that the trial judge failed to use or palpably misused the advantage he or she had of seeing and hearing the witness, or that the trial judge relied on evidence which was inconsistent with facts incontrovertibly established by the evidence, or that the trial judge acted on evidence which was glaringly improbable, or that the trial judge fell into some error of principle, or that the trial judge mistook or misapprehended the facts, or if the effect of the overall evidence was such that it was not reasonably open to make the findings[108]

1. Applying the principles in the judgments referred to in Cross on Evidence, this Appeal Tribunal should be loath to intervene to disturb the findings of fact by the Original Tribunal.
2. The Appeal Tribunal has concluded that it was reasonably open to the Original Tribunal to prefer the evidence of one party over the other. There was no compelling (let alone incontrovertible) evidence to demonstrate that the decision of the Original Tribunal to prefer the evidence of one witness rather than the other was wrong.[109] Even if the Appeal Tribunal were to prefer Ms Pye's version of the interaction between the participants immediately after Buddha bit Mr Li, that would not affect the finding that the attack occurred.
3. Our conclusion is reinforced by the statement made in one of Ms Pye's written submissions that she has not denied accountability for what happened on 24 November 2021 but that she "simply stated that I did NOT see the attack on Mr Li." She repeated that Buddha's actions on that day were "extremely surprising as I have never seen my dog be aggressive towards anyone in the past."[110]

1. The Original Tribunal stated that the CCTV footage showed Mr Li limping after Ms Pye drove away and noted that Mr Li went to work but left work to seek medical treatment to stop the bleeding and get a tetanus shot. The Original Tribunal described subsequent treatment at the Emergency Department at the Calvary Public Hospital and the physical consequences of the dog bite for Mr Li. The Original Tribunal accepted that he needed two weeks off work as a result and that the pain eventually settled down after about four months.[111]
2. Ms Pye's submission went a little beyond those findings and referred to Mr Li's evidence that it took four months for him to recover from the "single bite wound and that his neck and back was still hurting from the even [sic: event?]" which Ms Pye said she found "extremely difficult to believe."[112]
3. The Registrar characterised Ms Pye's submissions as suggesting that Mr Li was "untruthful in both the extent of his injuries and his recovery time." In the Registrar's submission, that was "mere assertion" and has "no evidentiary basis."[113] Further, the Original Tribunal was correct in accepting the evidence adduced by way of the Tribunal documents[114] and Mr Li's evidence at the hearing.[115]
4. For the same reasons as set out in relation to paragraph [42] of the reasons for decision by the Original Tribunal, the Appeal Tribunal has concluded that it was reasonably open to the Original Tribunal to prefer the evidence of Mr Li and there was no compelling (let alone incontrovertible) evidence to demonstrate that the decision of the Original Tribunal to prefer his evidence (as supported by documentation) was wrong. That ground of appeal must fail.

1. The Original Tribunal summarised Ms Pye's witness statement in relation to what happened immediately after Buddha bit Mr Li and subsequently on 27 November 2021, and queried the accuracy of aspects of her evidence.[116] The Original Tribunal did not accept Ms Pye's evidence "that she gave her contact details to Mr Li and asked him to text his number to her", and explained why it was "much more likely that events happened as Mr Li described them - i.e., he gave her his contact details and she promised to contact him shortly afterwards but failed to do so."[117]
2. Ms Pye submitted that she believed that the Original Tribunal was "exercising his discretionary power in bad faith as he is making this assumption without evidence which I refute." She contended that, if she had Mr Li's contact details, it would have made "more sense" for her to contact him to try to avoid the situation in which she now finds herself.[118] Further, she submitted that she had explained her "reasons and the versions of events following the attack" and had provided both parties with the note left on her car from Mr Li which, in her submission, means that the Appeal Tribunal "should find my version of events to be truthful and that Mr Li was not completely truthful in his statement."[119]
3. In an email to the tribunal and the Registrar's legal representative on 14 July 2022, Ms Pye wrote in relation to the note left on a car "Proving that I was threatened to make contact with him or legal action will be taken. This is after the fact that Buddha had already been seized and this is why I chose not to contact Mr Li once I finally had his contact details." That statement reflects what she wrote in her witness statement for the original proceedings.[120]
4. The Registrar submitted that, although Ms Pye was cavilling with the Original Tribunal's inferences, she did not appear to be submitting that there was an error in the facts from which those inferences were drawn. Further, the Registrar submitted that the inferences drawn in paragraph [45] of the reasons for decision were open to the Original Tribunal "based on the compelling narrative of the events" which, in any case, were relevant but not pivotal to the Original Tribunal's decision.[121]
5. Further, the Registrar referred to the note left on Ms Pye's car, noting Mr Li's oral evidence in which he accepted that he left a note on her car but did not know its contents as it was written by his manager.[122] The Registrar observed that the note was not signed and was clearly written by a person other than Mr Li. Having quoted from the note, the Registrar submitted that the note assists the Registrar's case "as it reinforces the submission that the injury occurred, and the appellant did not accept responsibility for the injury caused by Buddha to Mr Li." Further, the Registrar submitted:

The appellant's cross examination of Mr Li suggested that "the note was saying to me that it had a phone number and to contact him or they were going to lay charges and contact the police and Domestic Animal Services. The reason that I didn't contact you."[123] That proposition is inaccurate as the note stated "we have the ACT Police and ACT Domestic Animal Service involved. The case has been built."[124]

The appellant appears to lose sight of the most important issue in this matter - Buddha, whilst under her control, injured a person in a public setting without being provoked. There was no inconsistency from Mr Li in this regard. His evidence was corroborated by the CCTV footage and confirmed by his Discharge Summary from the hospital.[125]

1. Ms Pye's submission refers to the note left on her car. That note was not in evidence before the Original Tribunal but forms part of the further evidence which Ms Pye submits should be accepted by the Appeal Tribunal. That note is relevant to the finding of facts made by the Original Tribunal. It is also relevant to assessing aspects of Ms Pye's evidence to the Original Tribunal. According to Ms Pye, the document was not provided to the Original Tribunal because it had been "misplaced at the time" but had since been located.[126]
2. The Appeal Tribunal has decided that this further evidence should be received as evidence in the appeal. The note stated:

Your dog attacked and hurt someone on the 25th Nov. You left without taking responsibility.

We have the ACT Police and ACT Domestic Animal Service Involved. The Case has been built.

To Avoid Prosecution and enforcement on your dog. Please contact the Victim ASAP.

1. The Appeal Tribunal has concluded that the contents of the note are consistent with the Original Tribunal's finding that Ms Pye had failed to contact Mr Li.
2. It was reasonably open to the Original Tribunal to prefer the evidence of Mr Li and there was no compelling (let alone incontrovertible) evidence to demonstrate that the decision of the Original Tribunal to prefer his evidence (as supported by documentation) was wrong. Even if the Original Tribunal had erred in reaching its conclusion, that would only affect an aspect of the chronology. It would not detract from a finding that Buddha bit Mr Li while not under Ms Pye's control and while not wearing a muzzle. That ground of appeal must fail.

1. The Original Tribunal noted that DAS rangers carried out a car registration number check and identified the vehicle as belonging to Ms Pye. An inspection of the CCTV footage on 26 November 2021 enabled DAS rangers to identify Ms Pye and Buddha. That day, DAS rangers attended Tara and spoke with the manager. Among other things, the manager said he had observed Ms Pye trying to place a muzzle on Buddha, but the dog would immediately take it off.
2. The Dangerous Dog Licence conditions included requirements that, if Buddha leaves the nominated premises, he "must" be:

(a) muzzled. The muzzle must be securely fixed upon his mouth in such manner to prevent him from biting a person or animal;

(b) kept on a leash;

(c) be wearing a dangerous dog collar. An approved collar is available for purchase from Domestic Animal Services;

(d) in the care of Lisa Pye or anyone else as a stated person; and

(e) under the effective control of Lisa Pye or a competent person over the age of eighteen years of age by leash.

1. In her written submissions, Ms Pye responded to the statement that she had been observed trying to place a muzzle on Buddha but that he would immediately take it off. She noted that she was "attempting to muzzle the dog, complying with orders of the Dangerous Dog Licence. This is something that is new to both myself and my dogs in which training has not been available to teach me how to do this successfully."[127]
2. The Registrar quoted from the note in relation to Ms Pye's attempts to muzzle Buddha. In the Registrar's submission, that note has "no relevance of materiality" to this appeal.[128]
3. In reply, Ms Pye submitted that the note is relevant because she is "proven to be compliant of orders of muzzling my dog. Without proper training for myself or my dog on how to do this correctly and successfully is a matter that could have been addressed had the registrar accepted my requests for training whilst Buddha was impounded."[129]
4. The Registrar submitted that Ms Pye's further submission was "surprising" as Ms Pye had been a dog owner for some time and muzzling a dog does not require "proper training."[130]
5. The Appeal Tribunal has concluded that the issue raised by Ms Pye is not directly relevant to this appeal. There is no dispute that it was a condition of the dangerous dog licence that Buddha was to be muzzled when he left the nominated premises. The Dictionary to the DA Act includes the following definition:

muzzle means a device that, if worn by a dog, prevents the dog from biting a person or animal.

1. Buddha was not wearing a muzzle when he bit Mr Li.
2. It is not clear how often Ms Pye attempted to put a muzzle on Buddha and whether (other than on the occasion referred to by the Original Tribunal) Buddha would remove the muzzle. Whether or not Ms Pye needed or received some training in relation to how to secure a muzzle on Buddha, she was obliged by the conditions of the Dangerous Dog Licence to do so.[131] To the extent that her submissions appear to deflect responsibility for her compliance with that condition on the Registrar, the submission should not be accepted. The ground of appeal must fail.

1. The Original Tribunal made various findings in relation to Ms Pye relocating Tonner on 27 November 2021 and that she did not notify the DAS of the change of address until the morning of the hearing on 1 March 2022 because she feared that Tonner would be seized.[132]
2. Ms Pye submitted that there was an error of fact which she could rebut by reference to evidence from Mr Harris, the Operations Manager of the Dog'otel in Wallaroo, just outside Canberra.[133]
3. The Registrar submitted that it is unclear which part of paragraph [48] of the Original Tribunal's reasons for decision Ms Pye contends is an error of fact. However, even if the Original Tribunal found to the effect that Ms Pye caused Tonner to be relocated, it is not material to this appeal.[134]
4. In reply, Ms Pye identified the alleged error of fact as that the owner of the Dog'otel had confirmed that Tonner was never removed from his care during the entirety of his stay there. She had provided both parties with that statement on 9 August 2022.[135] The document from Mr Harris (Ms Pye's Exhibit E3) stated that it was a "complete fabrication that Tonner was not at the kennel at any stage between late November and March."
5. As the Registrar observed in response, the evidence was new and was not available to the Original Tribunal. Further, the document is not material to the appeal.
6. The Appeal Tribunal has concluded that because this ground of appeal relates exclusively to Tonner, and no aspect of the appeal involves that dog, the Appeal Tribunal need not make any finding in relation to Ms Pye's critique of paragraph [48] of the Original Tribunal's reasons for decision. Consequently, the further evidence contained in document described by Ms Pye as Exhibit E3 is not admitted into evidence on this appeal. The ground of appeal is dismissed.

1. The Original Tribunal described a dog behavioural assessment commenced on 2 December 2021 by Mr Grutzner, a "highly experienced dog handler and dog behaviourist," which was terminated after Buddha bit his forearm two or three times. Mr Grutzner compared the dog's behaviour at his previous assessment in February 2021 (a confident dog with no environmental issues) with his behaviour on 2 December 2021 (stressed, fearful and lacking in confidence, which made his behaviour unpredictable and therefore more dangerous) and concluded that Buddha was unsuitable to be returned home or rehomed to another person.[136]
2. Ms Pye submitted that no evidence was provided of the assessment, nor was there any evidence about Mr Grutzner being bitten by Buddha. Ms Pye continued:

I do not believe this to be a true statement. I believe that if it were true, evidence should and would have been provided. I believe Mr Grutzner's assessment contradicts his last assessment, and so does the actions of Buddha as shown in the video evidence I've provided.[137]

1. The Registrar noted that Mr Grutzner gave evidence in chief and was cross‑examined by Ms Pye at the hearing in relation to the assessment, including being bitten on the forearm.[138] In the Registrar's submission, Ms Pye's submission is not supported by evidence. Further, Mr Grutzner's two assessments opine that Buddha should not be allowed back into the community given his aggressive personality traits.[139]
2. In reply, Ms Pye submitted that there was no evidence to "back up" Mr Grutzner's allegation that he was bitten two or three times. Nor was there any video evidence provided "which should have been provided considering his response to why it was not provided on the first occasion was because his go pro wasn't working that day."[140]
3. The Registrar replied to those further submissions stating:

Mr Grutzner was an independent expert called by the respondent. He provided a report and gave evidence at the hearing. There was no need for any additional evidence to be provided by him or the respondent to "backup" his evidence as that amounted to his entire evidence. The appellant appears to now challenge Mr Grutzner's evidence regarding Buddha attempting to bite him. The appellant also suggest that Mr Grutzner was not truthful when he gave his evidence without any basis for that allegation. However, even if this contention were to be accepted by the Appeal Tribunal, the appellant's own witness, Ms Butler, accepted in cross-examination that Buddha attempted to bite her twice during her assessment of Buddha. Consequently, it was available to [the Original Tribunal] to find that Buddha was not a dog that could be safely released back into the community.[141]

1. The Appeal Tribunal has concluded that the Original Tribunal did not err in relying on the evidence of Mr Grutzner. His qualifications and experience were relevant. Mr Grutzner gave oral evidence about the "massive change" in Buddha between his two assessments. Mr Grutzner described biting as a dog's "last defence or last option,"[142] but Buddha was no longer scared to bite humans.[143] Buddha made a decision to bite a human being unprovoked. That made him a dangerous dog.[144] Although Mr Grutzner believed that every dog is trainable, the issue here is how far has the dog lost respect of a human. Having done two assessments of Buddha and watched the video footage of Buddha biting Mr Li, he said that Buddha will bite a human.[145] Mr Grutzner's opinion was that it would not be a good thing for Buddha to be out in public.[146] He could not take responsibility for saying that Buddha could be taken out safely.[147]
2. The absence of video evidence to "backup" his written and oral evidence does not mean that his evidence should not have been accepted. Mr Grutzner explained that he uses video footage for reference when he prepares assessment reports but once the report is done, he deletes everything. He has never released his video footage and would not keep it unless instructed to do so.[148]
3. The fact that Ms Pye appeared to have difficulty in believing Mr Grutzner's evidence does not cast doubt on it. Ms Butler gave evidence that Buddha attempted to bite her twice during her assessment of him. Although Ms Butler did not think that Buddha lunged and reacted to her "with full intent,"[149] he did attempt twice to bite her around the hand part of the bite suit she was wearing.[150] Although Ms Butler's evidence was not necessary for deciding this ground of appeal, it adds support to our conclusion that the ground of appeal must fail.

1. The Original Tribunal set out why it had difficulty with the evidence of Ms Butler that, although Buddha clearly has the capacity to bite, he could be rehabilitated with adequate training and restrictions. The Original Tribunal explained that "difficulty" by reference to the evidence of the circumstances in which Mr Li was bitten by Buddha. In particular, the Original Tribunal described what the CCTV footage shows about Buddha's "attack" which was "completely unprovoked."[151]
2. In Ms Pye's submission:

The member states that there is no evidence that Mr Li walked close to the applicant or to my car. The member did not have a layout of the carpark nor did he know where I was or where the attack occurred. This evidence can be supplied which will show that Mr Li was walking towards myself and my car at the time of the attack. Mr Li is not a resident of Cape street. And what I was trying to explain during the hearing is that Buddha could of felt threatened by Mr Li, by his clothing, resembling the bite suits worn at DAS, also that he was protecting me of a stranger walking towards me. So although this comes across as unprovoked to most, It could be different in Buddha's eyes. This, neither I nor the member would 100% know.[152]

1. The Registrar submitted that it is unclear what, if any, error of fact Ms Pye contends. Indeed, the Registrar characterised Ms Pye's submission as "mere commentary, which speculates on the dog's mind and behaviour and purports to shift blame towards Mr Li for the attack." In the Registrar's submission, that commentary is immaterial to this appeal and does not assist the Appeal Tribunal in determining the appeal. In particular, the layout of the car park or Ms Pye's position has no relevance in determining why Buddha attacked Mr Li.[153]
2. The Appeal Tribunal notes that, although Ms Butler considered that Buddha is trainable and could be rehabilitated with adequate training,[154] she agreed that Buddha is a dangerous dog, and said that Buddha needed to be muzzled and subject to conditions to be safe in a public place.[155] As Ms Butler noted, the video showed that Mr Li was just walking past when Buddha came forward with speed, bit him and retreated. The episode was not sustained but it was unprovoked.[156]
3. The Appeal Tribunal has concluded that Ms Pye's critique of the evidence about the attack on Mr Li is immaterial and speculative. The CCTV footage is clear enough. There is no dispute that Ms Pye let go of the leash and that Buddha attacked and injured Mr Li. The Appeal Tribunal is not satisfied that the layout of the car park could or would have made any difference to the Original Tribunal's conclusion. Ms Pye's speculation about what might have been in Buddha's mind cannot be evidence in this case. If she is correct, however, it would only reinforce a conclusion that Buddha's behaviour was, and possibly remains, unpredictable and dangerous. This ground of appeal must fail.

1. The Original Tribunal stated, in relation to Ms Pye's evidence, that Ms Pye made it clear from the outset she does not believe her dogs are dangerous. She relied on, and the Original Tribunal referred to, video recordings in evidence which showed different occasions on which Buddha was in the company of and being handled by DAS rangers, Ms Pye, family members and friends. The Original Tribunal wrote:

Some of the videos show Buddha being handled by DAS rangers a few weeks earlier outside a veterinary clinic without the dog being muzzled. The applicant claims that if Buddha was as dangerous as DAS says, he would have been muzzled and the Rangers would have worn bite suits. The applicant believes this shows that the dogs are not aggressive or menacing and are not an unacceptable risk to the safety of the public or other animals.[157]

1. Ms Pye did not expressly take issue with the assessment made by the Original Tribunal but submitted that DAS contravened the DA Act "as they were the carer of a Dangerous Dog and failed to muzzle the dog in a public place."
2. Section 27(1) of the DA Act states:

_(1) A person commits an offence if - _

(a) the person is the carer of a dangerous dog; and

(b) the person is with the dog in a public place; and

(c) the dog is not wearing a muzzle.

carer, for an animal at a particular time, means an individual over 14 years old who is in charge of the animal at that time.

1. In her subsequent written submissions, Ms Pye stated that she mentioned the failure on the part of DAS because her failure to abide by the orders of the special licence was a reason used to cancel her special licence. In her submission "The orders do not apply to the owner, they apply to the carer."[158]
2. The Registrar submitted that Ms Pye was contending that the Original Tribunal did not have sufficient regard to the Registrar's staff not muzzling Buddha in some of the videos she adduced at the hearing on the basis that them not doing so amounted to a breach of section 27(1) of the DA Act. In reply, the Registrar submitted that the Original Tribunal considered these issues (given that he referred to them in the reasons for decision) but gave little if any weight to this evidence and Ms Pye's submissions in relation to it. The Registrar further submitted that the approach taken by the Original Tribunal was correct as the aggressiveness or unacceptable risk to the safety of the public or other animals presented by Buddha could not be asserted by considering the videos provided by Ms Pye.
3. The Registrar also submitted that the Original Tribunal did not err when relying on expert evidence, adduced by both parties, in determining Buddha's behaviour.[159] The Registrar submitted subsequently that Ms Pye's contention in relation to DAS employees not muzzling Buddha "has no material significance for this appeal, and therefore it should be disregarded."[160]
4. The Appeal Tribunal has concluded that the issue in this case is whether the Original Tribunal erred in relation to what Ms Pye did, or failed to do, rather than what DAS officers did or failed to do. Whether or not DAS officers complied with section 27(1) when they were in a public place, the issue is whether the Original Tribunal erred when deciding that Buddha is dangerous relying in part on video evidence.
5. It is clear that the Original Tribunal watched and took into account the range of video and other evidence in relation to Buddha's behaviour on 24 November 2021 and other occasions. The video evidence shows Buddha in a range of public locations and in a home environment. He appears to act differently in different locations and when interacting with different people. None of that detracts from the conclusion reached by the Original Tribunal. Ms Pye's critique of paragraph [59] of the Original Tribunal's reasons for decision is not really a ground of appeal. Accordingly, that ground must fail.

The applicant was sometimes emotional when giving her evidence. Clearly, she feels deep affection for her dogs and fears losing them. It is also apparent that she nurses deep-seated feelings of anger and resentment towards DAS, bordering on the irrational, which significantly colours her evidence.[161]

1. Ms Pye stated that she found this to be "extremely insulting" and submitted that "again the member is exercising his discretionary power in bad faith."[162] In her subsequent written submissions, she wrote:

Again, I find this to be extremely insulting due to the decline of my mental state. I think any dog owner who has had their dog impounded for 218 days fighting to save their lives, to have the decision overturned and the dog released back to her, is not unjustifiable to hold some type of resentment towards Domestic Animal Services and their conduct. Especially considering the weightloss, injuries and the fact that the welfare of my dogs seem to be a distant concern.[163]

1. The Registrar submitted that the Original Tribunal's finding in relation to Ms Pye's evidence "is pertinent given the evidence and submissions made by her at the hearing."[164] In response to Ms Pye's subsequent written submission, the Registrar contended that there is no claim for an error in that paragraph of the Original Tribunal's reasons for decision and so the Registrar has no submissions to make.[165]
2. The Appeal Tribunal has concluded that Ms Pye's response to the observations made by the Original Tribunal, while understandable, does not provide a basis for finding that the Original Tribunal was in error in the decisions made in this case. Her deep affection for her dogs and fear of losing them was evident to the Appeal Tribunal. Her deep feelings towards DAS were also apparent and, for reasons noted elsewhere in this decision, were at least partially a response to the unsatisfactory interactions she had with some DAS staff and occasional errors and other administrative failures by them, as well as the obstacles to her obtaining additional assessment of Buddha.
3. As noted earlier, the Original Tribunal had the benefit of seeing and hearing from Ms Pye as a witness as well as a self-represented party. To some extent, at least, the impression formed by the Original Tribunal was reinforced by the submissions made by Ms Pye to the Appeal Tribunal. Ms Pye's demeanour was a relevant factor for the Original Tribunal to take into account. Even if the Original Tribunal did not give sufficient recognition to the interactions which gave rise to her anger and resentment towards DAS, the Appeal Tribunal is not satisfied that the Original Tribunal was in error in taking her demeanour into account when assessing the evidence. Nor is the Appeal Tribunal satisfied that that characterisation of her evidence caused the Original Tribunal to err in the findings of fact and conclusions which determine the outcome of the case. The ground of appeal must fail.

[Ms Pye] believes that DAS rangers have unfairly targeted and victimised her and her dogs. She believes that there is no evidence to justify DAS seizing the dogs and for the tribunal to declare Buddha and Tonner to be dangerous dogs. She claims that the complaints about her dogs were never proved. She blames DAS and the tribunal for making it impossible for her to find somewhere to live, given the understandable reluctance a lessor may feel to permit a tenant to keep a declared dangerous dog on their premises. She claims that she never saw her dogs being aggressive or menacing towards other persons or animals before DAS impounded them and that they have been damaged by their lengthy and unjustified impoundment. She claims that it is entirely out of character for Buddha to bite someone. Faced with incontestable evidence that he did bite a member of the public in an unprovoked attack, she blames DAS's treatment of the dog during his impoundment for Buddha's behaviour.[166]

1. The Original Tribunal quoted 10 statements made by Ms Pye at the hearing on 1 March 2022 that "illustrate the applicant's attitude."[167]
2. Ms Pye submitted:

I have produced numerous reports from animal behaviourists explaining the effects impoundment can have on a dog. What I have explained to the tribunal is just that. based on their own expert witness report from Bruno Grutzner, "That whatever has happened to the dog since his first assessment has done the dog no favours" is what my concerns have been during the lengthy impoundment of my dog. I have asked for training to commence but was told this is not an option although I have found a case in the ACAT ... stating that, at the expense of DAS, 6 weeks of training 2 days a week was provided to [the owner] and his 2 dogs that were impounded at Domestic Animal Services.[168]

(a) Ms Pye raises the same issues as she did at the hearing, namely that the Registrar is to be blamed for Buddha's behaviour given the lengthy impoundment;

(b) the reports to which Ms Pye refers were various printouts from the internet, not reports relating to Buddha's impoundment and therefore the reports had no evidentiary value at the hearing; and

(c) training to impounded dogs is not approved on a regular basis by the Registrar.[169]

1. In response, Ms Pye contended that, in a case pending a decision to destroy a dog, training should be provided as a reasonable step to be taken to reduce the risk of the dog endangering the public or other animals.[170]
2. The Appeal Tribunal is satisfied that the conclusions reached by the Original Tribunal were supported by evidence in that case, much of which was quoted in the reasons for decision. Although Ms Pye states that she had not seen her dogs being aggressive or menacing towards other persons or animals and holds the firm view that Buddha's temperament and behaviour has been adversely affected by extended periods in DAS facilities, none of that detracts from incidents which she did not observe but for which there is evidence. Buddha has acted in ways which justify a declaration that he is a dangerous dog for the purpose of the DA Act.
3. The Dictionary to the DA Act includes the following definition:

dangerous dog means a dog that is declared to be a dangerous dog under section 22 (1) or (2) (Declarations - dangerous dogs) or section 50 (Dog attacks person or animal causing serious injury).

1. By orders made by the Tribunal on 20 August 2021 (three months before he bit Mr Li), Buddha was declared a dangerous dog under section 22(2)(b)(i) and (ii) of the DA Act. Those parts of section 22 provide:

_The registrar may declare a dog to be a dangerous dog if - _

(a) ...; or

_(b) the registrar reasonably believes the dog - _

(i) is aggressive or menacing; and

(ii) without being kept in accordance with a dangerous dog licence, would be an unacceptable risk to the safety of the public or other animals.

1. The Appeal Tribunal does not know whether some training could or would modify his temperament and behaviour so that he would no longer be characterised as a dangerous dog. But that is not the issue in this case. The ground of appeal must fail.

1. The Original Tribunal did not consider Ms Pye's evidence that she had never seen Buddha be aggressive was truthful. The Original Tribunal stated that dogfights between Buddha and Tonner on 3 March 2020 that resulted in both dogs receiving serious injuries "puts the lie to this." Ms Pye's evidence was also inconsistent with earlier statements she made to DAS staff to the effect that her dogs were her protection dogs. The Original Tribunal quoted a file note of a telephone call between Ms Pye and Zrinka Veljaca of DAS on 7 February 2021:

Lisa said she doesn't want the dogs de sexed because she got them for a reason, and they will turn into cats if she gets them de-sexed (in reference to their aggression subsiding) she said I don't know her past and she got them to protect her and if someone breaks in and anything happens to her it's on us ...[171]

1. Initially, Ms Pye submitted that the dogs did have injuries "but they were not serious injuries that needed any other treatment besides antibiotics as a precaution." She felt that "this has been misinterpreted and exaggerated."[172]
2. The Registrar submitted that the Original Tribunal found, based on the evidence available to him, that Buddha and Tonner had a dogfight on 3 March 2020 and thus Ms Pye's evidence that she had never seen Buddha be aggressive was questioned by the Original Tribunal as probably being untruthful. Further, Ms Pye's contention that the finding was "misinterpreted and exaggerated" was made despite the fact that she agrees that the dogs had injuries "but they were not serious injuries." In the Registrar's submission, despite what Ms Pye considers to be serious injuries, she accepted that the dogs had injuries resulting from a fight with each other.[173]
3. In her response, Ms Pye contended that:

(a) she was not present when her dogs had a fight in her backyard in 2020;

(b) Ms Veljaca was not available as a witness on any occasion of the five-day hearing spanning over three months; and

(c) Ms Veljaca's file notes are incorrect in saying anything about Ms Pye's dogs turning into cats, which Ms Pye characterised as "ridiculous" and "simply hearsay."[174]

1. The Appeal Tribunal has concluded that there is no dispute that Tonner and Buddha fought on 3 March 2020, and both received injuries. If Ms Pye did not see the dogfight, that does not detract from the event having occurred and the dogs inflicting injuries on each other. The source of the alleged error in Ms Veljaca's note was not explained. It is not clear whether Ms Pye was contending that the "hearsay" came from someone other than herself. In any case, Ms Pye was not disputing that she had the dogs as protection dogs.
2. The Original Tribunal did not err in considering evidence of past behaviour by Buddha when deciding whether he was a dangerous dog. This ground of appeal must fail.

1. The Original Tribunal stated that Ms Pye did not make her dogs wear a dangerous dog collar because there were none that would fit. She claimed that the dogs were being choked by the dangerous dog collars that DAS rangers fitted before returning the dogs to her custody on 9 September 2021 and that the video evidence proved that.[175]
2. Ms Pye submitted that the video proves that her dogs were choking in the collar. She contended that when she contacted DAS informing them that the collar did not fit the dogs, they informed her that it was "the largest size", and that was "different information" from the information given by the witness during the hearing.[176]
3. The Registrar submitted that Ms Pye's contention is "fully rebutted" by her own evidence, namely video footage of when the dogs were returned to her by the Registrar's rangers. That evidence was corroborated by the evidence of Mr Crawford-Ong[177] (the ranger who fitted the collars to the dogs) which the Original Tribunal accepted, that "there was room for three fingers under the collar - in other words, that the collars were not too tight."[178]
4. Ms Pye disagreed. In her submissions in response, she contended that if one viewed the video footage of the dogs' arrival on the first day home, "it clearly shows how tight the collars were, that my dog is choking and that the collar had to be removed once the dogs were finally in my home."[179]
5. The Registrar submitted in reply that Ms Pye's submissions have no material bearing on the Original Tribunal's findings and should be disregarded.[180]
6. The Appeal Tribunal has concluded that the video and other oral evidence before the Original Tribunal indicated that a dangerous dog collar could be fitted to Buddha. Ms Pye did not comply with the Dangerous Dog Licence condition that Buddha wear a dangerous dog collar whenever he left the nominated premises This ground of appeal must fail.

The applicant's evidence, particularly where she accuses DAS of mistreating her dogs and blames DAS for her dogs' aggressive behaviour, highlights her inability or unwillingness to recognise and accept responsibility, as the owner of the dogs, for her own contribution to the events and circumstances that led to the lawful seizure and subsequent lengthy impoundment of Buddha and Tonner before they were declared dangerous dogs and released to her on the conditions of the dangerous dog licences. She did not have her dogs trained or undertake any training herself to enable her to better control the dogs. She chose to break the law by keeping the dogs sexually entire without a permit. She ignored Notices to Comply issued by DAS. She did not prevent the dogs from roaming, even though she knew that Buddha and Tonner were capable of inflicting severe injury on each other and on other animals. The record of her dealings with DAS before and after the dogs were impounded in February 2021 paints a disturbing picture of a person with no understanding of the requirements for responsible dog management, care and control. [181] (emphasis added)

1. In response to that assessment, Ms Pye submitted only that she was "unable to commence training due to the covid lockdown", although she did "prove to the tribunal" that she had "contacted numerous trainers who are unable to help me at that time."[182] According to Ms Pye, she had begun training for Tonner after the lockdown, but Buddha was already impounded by then and "all attempts were denied by the registrar for training." She had provided correspondence with trainers who had given advice on methods to try to rehabilitate her dogs and had offered their services once lockdown was over.[183]
2. The Registrar submitted that:

(a) this issue alone does not have any material relevance to the appeal; and

(b) the appellant could have taken other measures, such as courses online, to learn how to better control the dogs.[184]

1. The Appeal Tribunal has concluded that there is clear evidence that Ms Pye did not have Buddha trained and did not undertake any training herself to enable her to better control him. The correspondence to which Ms Pye referred could not overcome what happened in the past and cannot be used to demonstrate that the Original Tribunal was in error. This ground of appeal must fail.

1. The Original Tribunal accepted that Ms Pye's inability to comply with the condition requiring the dogs to reside and be contained at a particular address was caused by circumstances beyond her control, namely that she was evicted from those premises. In the Original Tribunal's view, Ms Pye was faced with the choice of:

(a) returning the dogs to DAS while she tried to secure suitable alternative accommodation; or

(b) applying to the Registrar for approval to keep the dogs at an appropriate boarding kennel.

1. Ms Pye "chose to do neither" and from the moment the dogs ceased to reside at the nominated address, Ms Pye was in breach of the conditions of the special licence. In the case of Buddha, the breach continued until 26 November 2021 when he was seized.
2. Ms Pye submitted that she had "proven to be compliant in the situation I was faced with" which, she contends, has cost her more than $11,000 to kennel her dogs, $6,000 for enclosures, $1,775 for the dangerous dog licences, and $684 for both dogs to be desexed.[185] In a subsequent written submission, Ms Pye stated that evidence of those costs had now been provided to both parties in attachments on 9 August 2022.[186] Ms Pye described the documents as exhibits E4 and E5.
3. The Registrar submitted that Ms Pye did not adduce evidence at the hearing in relation to the costs she said that she incurred. However, even if she had had adduced such evidence, it would not have been material to the Original Tribunal as all the other factual background which was proved at the hearing pointed to the fact that Ms Pye had been non-compliant with the previous orders regarding dangerous dog declarations.
4. The Appeal Tribunal has concluded that the evidence of the costs incurred by Ms Pye, particularly in relation to accommodation for the dogs, does not overcome the fact that at the relevant dates from about 5 October 2021 until 26 November 2021 she was in breach of conditions in the Dangerous Dog Licence for Buddha. This ground of appeal must fail.
5. Consequently, the Appeal Tribunal does not grant Ms Pye leave to provide further documentary evidence of the costs she incurred in relation to the dogs.

1. As noted earlier, Ms Pye did not make submissions in relation to paragraphs toward the end of the Original Tribunal's reasons for decision which dealt with whether the dangerous dog licences should be cancelled and whether Buddha should be destroyed. It was those parts of the Original Tribunal's reasons which contained the findings of fact and the reasoning in support of the Orders 1 and 3. Although Ms Pye sought to have the Appeal Tribunal set aside those Orders, her submissions did not directly challenge those critical parts of the Original Tribunal's reasoning.
2. However, Ms Pye made some additional submissions to which we now turn.
3. First, Ms Pye contended that the notice of cancellation of the special licence in relation to Buddha and the notice of decision to destroy Buddha advised her that she had seven days within which to appeal to the tribunal. That was an error. She should have been advised that she had 28 days to appeal.[187]
4. In support of that contention, Ms Pye provided correspondence from the ACT Government Solicitor dated 19 January 2022 which she sought to adduce as further evidence and described as Exhibit J2. That correspondence included statements to the effect that:

(a) the reference to a seven-day period within which to lodge a review application with the tribunal was incorrect and that the period set out in section 10(2) of the ACAT Act is 28 days after the day the decision to be reviewed is made; and

(b) the Registrar acknowledged the distress the seven-day period caused Ms Pye and sincerely apologised for the error.

1. The Appeal Tribunal accepts that the original advice about the cancellation of the special licence for Buddha given to Ms Pye by the Registrar on 9 January 2022 included statement, "You have 7 days from the date of service of this letter to lodge a review of application with ACAT." That was incorrect.
2. However, the Appeal Tribunal is not satisfied that even if Ms Pye had been given the accurate advice which she was entitled to receive, that would have affected the decision of the Original Tribunal to make Orders 1 and 3.
3. Accordingly, the Appeal Tribunal does not grant leave to receive the additional evidence described as Exhibit J2 and dismisses this ground of appeal.
4. Second Ms Pye also took issue with aspects of the Registrar's conduct in relation to the case. Indeed, she submitted that the Original Tribunal did not exercise its powers relating to the Registrar's conduct and alleged breaches of the Tribunal's orders, including not providing subpoenaed documents and evidence, which, she submitted, contributed to her inability to form a proper defence.[188]
5. At the hearing before the Appeal Tribunal, Ms Pye also contended that the Original Tribunal did not take into consideration material that she had subpoenaed from the Registrar, some of which was provided to her. According to Ms Pye, she was not provided with security footage of the exercise area showing the daily exercise of Buddha from 4 February until 8 September 2021 and from 26 November 2021 until 28 February 2022. She had been told that footage is only kept for 30 days, and that the security camera only captures a small portion of the exercise yard. It would only show a dog entering and exiting the yard but not exercising there. According to Ms Pye, that material was meant to be before the Original Tribunal, but it was not produced. In her submission, it was relevant to her argument that her dog was not being exercised and properly cared for and that could relate to behavioural issues.[189]
6. The Appeal Tribunal notes that there were a few references to subpoenaed material in the original hearing. At the start of Ms Pye's evidence, the following exchange occurred:

MS PYE: Sure. I also notice in the submissions where I was sent photos of Buddha's - actually, sorry, this was in response to the subpoenas. The photos of Buddha being weighed and all different angles of Buddha and that the handler is seen to be in a bite suit but does not have any protective wear on his hands and is holding around my dog's mouth and patting him and my dog's, you know, putting his paw up on him and seemed, you know. That's how I know my dog, you know. I just wanted to make sure that that is seen because the way that my dog is and to what is on paper is different.

SENIOR MEMBER: Ms Pye, a couple of points. One, all the video footage that you have submitted, I have looked at.[190]

1. Later in the proceeding, Ms Pye told the Original Tribunal:

MS PYE: In my - on my memory stick I did add in there a phone conversation between myself and Luca. I did ask for Luca to do a statement but he felt it may have been a conflict of interest, but he was happy to be subpoenaed but we had run out of time for that to happen.[191]

1. On the basis of those extracts from the transcript and Ms Pye's submissions, the Appeal Tribunal is unable to conclude whether and, if so, to what extent, the Registrar failed to comply with any subpoenas other than because the subpoenaed material no longer exists. Nor is it clear that any of the subpoenaed material would have affected the outcome in this case. Accordingly, the Appeal Tribunal does not give any weight to this ground of appeal.
2. Third, having stated that she had never seen Buddha be aggressive towards anyone in the past, Ms Pye agreed with the statement made by Mr Grutzner that whatever has happened to the dog since Mr Grutzner's assessment in February 2021 had done the dog no favours. She contended that, because Buddha had been impounded at DAS since his last assessment, the Registrar should take accountability for the changes in the dog's behaviour. According to Ms Pye, Buddha "was not impounded originally for being aggressive towards any member of the public that was ever proven in any way."[192]
3. Ms Pye referred to an audio call by Luka, a kennel staff member. Apparently Luka stated that he looked after and began training with Buddha and that he had, on many occasions, told the Registrar that he did not believe that Buddha cannot be trained or rehabilitated and that he should not be euthanised.[193]
4. In response, the Registrar noted that Luka was not called to give evidence, and submitted that the recording provided by Ms Pye has no evidentiary value without being tested by the Registrar at the hearing.[194]
5. As noted above, Luka did not provide a statement and was not subpoenaed to give evidence to the Original Tribunal. The Appeal Tribunal can see no reason to allow any further evidence by Luka in the appeal proceedings.
6. Ms Pye also contended that the Original Tribunal did not take into consideration that part of her cross-examination of Eva Cawthorne, Operations Manager of DAS, when Ms Cawthorne said that neither of Ms Pye's dogs had ever been aggressive towards any staff at any time during the more than 200 days of impoundment. In Ms Pye's submission, that answer should have shown the Original Tribunal a "better indication" of her dog's temperament rather than the one that was "provoked by" Mr Grutzner's "assessment."
7. The Appeal Tribunal can make no meaningful response to this submission. Eva Cawthorne did not give evidence in the hearing before the Original Tribunal. The Operations Manager of DAS was Andrew Syme. He gave evidence and was cross-examined briefly by Ms Pye, but not about whether either of Ms Pye's dogs had ever been aggressive towards any DAS staff.
8. In Ms Pye's submission, because Buddha "has not been afforded quality of life in over a year and a half" and "has been taken from the only life that he knew as an inside dog" he should be given a chance to live and the chance to be rehabilitated and trained before any decision to destroy him is made.[195]
9. The Appeal Tribunal notes that the premise of Ms Pye's submissions is consistent with the conclusion of the Original Tribunal when it found that Buddha was more dangerous at the time of the original hearing than when Mr Grutzner assessed Buddha in February 2021 and he concluded that Buddha was dangerous and unsuitable to be rehomed.[196] The Appeal Tribunal is unable to decide why that is the case and, in particular, whether it is a consequence of Buddha's detention by the DAS. The evidence before the Original Tribunal includes a series of incidents from Buddha's first recorded attack of Tonner in March 2020 through to his unprovoked attack on Mr Li in November 2021 and his attempt to bite the arm of Mr Grutzner in December 2021. That evidence was sufficient to satisfy the Original Tribunal that Buddha was and remained dangerous.
10. Nothing in the evidence on appeal has satisfied the Appeal Tribunal that the Original Tribunal was wrong in concluding that Buddha was and remained dangerous and that a decision not to destroy him would result in an unacceptable risk to the safety of the public and other animals.
11. Fourth, Ms Pye sought to adduce additional evidence in the form of documents listed in emails to the tribunal and the Registrar dated 14 July 2022 and 8 August 2022, some of which were not in evidence before the Original Tribunal. Others were before the Original Tribunal in a redacted form. Some were available at the time of the original hearing. Others came into existence subsequently. The additional assessment of Buddha requested by Ms Pye did not exist at the time of the appeal hearing, for reasons noted earlier (see [86] - [102]). To the extent that a document was relevant to one or more of the grounds of appeal, it has been discussed earlier in relation to that ground or those grounds.
12. In relation to Ms Pye's attempt to adduce evidence from previous proceedings in May 2022 regarding Buddha and Tonner, the Registrar submitted that:

(a) that evidence was not adduced before the Original Tribunal and cannot be accepted in the appeal proceedings; and

(b) the Original Tribunal had the benefit of more recent evidence in relation to Buddha's character traits from two experts.[197]

1. The Appeal Tribunal notes that in the original proceedings there was no reference to evidence from previous tribunal proceedings in relation to Buddha. Although Ms Pye might have considered that each of the proceedings before the tribunal in relation to Buddha was linked to the others, there is some force to the Registrar's submission that evidence in those other proceedings cannot be accepted in the appeal proceedings because it was not before the Original Tribunal.
2. Given the unusual circumstances of this case and the interaction of other proceedings (referred to earlier) that involved decisions about whether matters such as whether Buddha was a dangerous dog, the Appeal Tribunal has considered the transcript of proceedings in AT 39/2021 on 21 and 27 May 2022 for the purpose only of considering the circumstances surrounding Ms Pye's unsuccessful attempts to have Buddha assessed by another vet in May 2022. Again, that matter was discussed earlier (see [86] - [102]).
3. The remaining issue is whether, as Ms Pye submitted, the cumulative effect of individual errors in the reasons of the Original Tribunal is sufficient to satisfy the Appeal Tribunal that the appeal should be upheld, and the decision of the Original Tribunal be replaced with different orders.
4. In order to deal with the numerous grounds of appeal identified by Ms Pye, and in acknowledgment of the thoroughness with which she expressed those grounds, the Appeal Tribunal has set out in some detail the parties' submissions and our responses to each ground of appeal. As the reasons make clear, some of those grounds are irrelevant or immaterial to the outcome in the case. In other words, even if some of the grounds were made out, they could not have affected the decision of the Original Tribunal and hence could not support the appeal. In addition, Ms Pye has not satisfied the Appeal Tribunal that each of the other grounds has been made out. Consequently, the cumulative effect of the submissions merely reinforces what the Appeal Tribunal's responses to individual submissions makes clear, that the appeal cannot succeed.

(b) may cancel a special licence if -

(ii) the licensee contravenes a condition of the licence; or

(iv) the registrar reasonably believes there would be an unacceptable risk to the safety the public or other animals if the licence were not cancelled; or

(v) the registrar reasonably believes that the licensee has failed, or is unable, to exercise responsible dog management, care or control.

1. The Appeal Tribunal is not satisfied that the Original Tribunal erred in being satisfied that there were grounds under section 36(1)(b)(ii), (iv) and (v) of the DA Act to cancel the special licence permitting Ms Pye to keep Buddha.
2. Section 53C of the DA Act provides that the Registrar may decide to destroy a dog if the Registrar is reasonably satisfied that a dog attacked a person and caused an injury (other than a serious injury) to the person and the Registrar has considered the circumstances of the attack, including whether the person provoked the dog.
3. The Appeal Tribunal is not satisfied that the Original Tribunal erred in being satisfied that the Registrar's decision to destroy Buddha should be confirmed.
4. For the reasons given above, the appeal is dismissed, and the Orders 1 and 3 made by the Original Tribunal in AT 7/2022 and AT 8/2022 on 10 May 2022 are confirmed.

[1] Lisa Pye v The Registrar, Domestic Animals Act [unreported, 10 May 2022] (Pye v The Registrar)

[2] Pye v The Registrar at [70]-[75]

[3] Pye v The Registrar at [76]-[79]

[4] Section 53B of the DA Act is quoted at [165] below

[5] Transcript of proceedings 8 August 2022, pages 14-16

[6] See Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [29]

[7] [2017] ACAT 49; see also Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [30]- [33]

[9] Hamers v South Canberra Holdings Pty Ltd ACN 606 747 602 Trading as Southside Village [2021] ACAT 71 at [3]

[10]Hamers v South Canberra Holdings Pty Ltd ACN 606 747 602 Trading as Southside Village [2021] ACAT 71 at [43]

[11] Hamers v South Canberra Holdings Pty Ltd ACN 606 747 602 Trading as Southside Village [2021] ACAT 71 at [45]. See also Pye v Pye [2022] ACAT 91

[12] See Excel Intelligent Pty Ltd v Thomson [2018] ACAT 4 at [53]; V v Elringtons Pty Ltd [2018] ACAT 23 at [23]; Harada v Barnes & Anor [2021] ACAT 66 at [8]- [10]; He v Qin & Ors [2021] ACAT 129 at [43]- [48]; LP 202021 v Council of the Law Society of the ACT [2022] ACAT 80 at [101]- [103]

[13] Tam v Du [2019] ACAT 94 at [22] citing Giusida Pty Ltd v Commissioner for ACT Revenue [2016] ACTSC 275 at [29]- [39]; Excel Intelligent Pty Ltd v Thomson [2018] ACAT 4 at [46]- [55]

[15] Lisa Jane Pye v The Registrar, Domestic Animals Act 2000, AT 38/2021

[17] Email from Ms Pye to the tribunal and the Registrar's representative dated 8 August 2022 paragraph (a) and penultimate paragraph

[18] Appellant's Response to Respondent's Outline of Submissions, page 12

[19] Appellant's Response to Respondent's Outline of Submissions, page 12

[20] Email from Ms Pye to the tribunal and the Registrar's representative dated 8 August 2022 paragraph (j)

[21] Appellant's Response to Respondent's Outline of Submissions, page 12

[22] Respondent's Outline of Submissions to the Appellant's Submissions in Reply at [21(d)]

[23] Respondent's Outline of Submissions to the Appellant's Submissions in Reply at [24] and [26]

[24] Hurst-Myers v Aulich Civil Law Pty Ltd [2020] ACAT 56 at [11]- [30]

[25] CDJ v VAJ (No 1) [1998] HCA 67

[26] CDJ v VAJ (No 1) [1998] HCA 67 at [55]

[27] CDJ v VAJ (No 1) [1998] HCA 67 at [111]

[28] Fox v Percy [2003] HCA 22 at [22]

[29] Hurst-Myers v Aulich Civil Law Pty Ltd [2020] ACAT 56 at [30]

[30] Amer v Erikson [2019] ACAT 108 at [19]- [21], citations omitted

[[&]](https://anzlaw.thomsonreuters.com/Link/Document/FullText?refType=U2<a name=) at [160]

[32] [2020] QCATA 131

[33] [2020] QCATA 131 at [6] citing Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, 408

[34] Fernando v Medical Complaints Tribunal (No 2) [2003] TASSC 139

[35] Fernando v Medical Complaints Tribunal (No 2) [2003] TASSC 139 at [18]

[36] Fernando v Medical Complaints Tribunal (No 2) [2003] TASSC 139 at [22]

[37] Fernando v Medical Complaints Tribunal (No 2) [2003] TASSC 139 at [19]

[38]Arnot v Commissioner of Fire and Rescue NSW [2021] NSWIRComm 1082

[39] Arnot v Commissioner of Fire and Rescue NSW [2021] NSWIRComm 1082 at [22]

[40] CCH Australia Ltd v Bowen (1998) 79 IR 206

[41] CCH Australia Ltd v Bowen (1998) 79 IR 206 at [211]

[42] Hurst-Myers v Aulich Civil Law Pty Ltd [2020] ACAT 56 at [10]

[43] Transcript of proceedings 27 May 2021, pages 2, 4, 9

[44] Transcript of proceedings 27 May 2021, pages 2, 3

[45] Transcript of proceedings 27 May 2021, pages 2, 4, 5, 8-9

[46] Transcript of proceedings 27 May 2021, pages 4, 5

[47] Transcript of proceedings 27 May 2021, pages 3-4, 7, 12, 13

[48] Transcript of proceedings 27 May 2021, pages 4, 5

[49] Transcript of proceedings 27 May 2021, pages 4, 7, 10, 11, 14

[50] Transcript of proceedings 27 May 2021, pages 6, 8

[51] Transcript of proceedings 27 May 2021, pages 14-18

[52] Transcript of proceedings 1 March 2022, pages 11-12; Transcript of proceedings 8 August 2022, pages 6-7; Exhibit A1 (email from L Pye to Registrar dated 2 June 2021)

[54] Transcript of proceedings 1 March 2022, pages 104, 118

[55] Email from Ms Pye to the tribunal and the Registrar's representative dated 8 August 2022 paragraphs (a) and (b)

[56] Respondent's Outline of Submissions to the Appellant's Submissions in Reply at [22]-[23]

[57] See Annexure J1 of the Attachments to Response dated 8 August 2022

[58] Respondent's Outline of Submissions to the Appellant's Submissions in Reply at [25]

[59] Appellant's Response to Respondent's Outline of Submissions, page 12

[60] Respondent's Outline of Submissions to the Appellant's Submissions in Reply at [3]

[61] Pye v The Registrar at [12]-[14]

[62] Appellant's submissions filed 13 July 2022, page 5 at [14]

[63] Appellant's Response to Respondent's Outline of Submissions at [25]

[64] Respondent's Outline of Submissions at [26]

[65] Respondent's Outline of Submissions to the Appellant's Submissions in Reply at [5]

[66] Pye v The Registrar at [15]-[16]

[67] Appellant's submissions filed on 13 July 2022, page 7 at [15]

[68] Appellant's Response to Respondent's Outline of Submissions, page 6 at [26]

[69] Respondent's Outline of Submissions at [27]-[28]

[71] Appellant's submissions filed on 13 July 2022, page 7 at [17]

[72] Transcript of proceedings 1 March 2022, page 9

[73] Respondent's Outline of Submissions at [29]-[30]

[74] Exhibit R3, pages 86-100 and 106-110

[77] Respondent's Outline of Submissions to the Appellant's Submissions in Reply at [6]

[78] Appellant's submissions filed 13 July 2022, page 9 at [22]

[79] Respondent's Outline of Submissions at [31]-[32], Respondent's Outline of Submissions to the Appellant's Submissions in Reply at [6]

[80] Pye v The Registrar at [26]-[27]

[81] Appellant's submissions filed on 13 July 2022, pages 10-11 at [27]

[82] Respondent's Outline of Submissions at [33]

[83] Respondent's Outline of Submissions at [34]

[84] Pye v The Registrar at [32]-[33]

[85] Appellant's submissions filed on 13 July 2022, page 12 at [33]

[86] Respondent's Outline of Submissions at [34]

[87] Appellant's submissions filed 13 July 2022, page 13 at [34]

[88] Respondent's Outline of Submissions at [35]-[36]

[91] Appellant's submissions filed on 13 July 2022, pages 14-15 at [38]

[92] Appellant's Response to Respondent's Outline of Submissions at 37

[93] Respondent's Outline of Submissions at [37]-[38]

[94] Appellant's submissions filed on 13 July 2022, page 15 at [40]

[95] Appellant's Response to Respondent's Outline of Submissions, page 7 at [38]

[96] Respondent's Outline of Submissions at [39]-[40]

[97] Respondent's Outline of Submissions to the Appellant's Submissions in Reply at [8]

[102] Appellant's submissions filed on 13 July 2022, page 16 at [41]

[103] Respondent's Outline of Submissions to the Appellant's Submissions in Reply at [9]

[104] Respondent's Outline of Submissions at [41]-[42]

[105] Sarbandi v Sharif [2017] ACAT 57

[106] Sarbandi v Sharif [2017] ACAT 57 at [67]

[107] Cross on Evidence, [11150] citations omitted

[108] Cross on Evidence, [11150] citations omitted

[109] Sarbandi v Sharif [2017] ACAT 57 at [71]

[110] Appellant's Response to Respondent's Outline of Submissions, page 5 at [21]

[112] Appellant's submissions filed on 13 July 2022, page 16 at [42]

[113] Respondent's Outline of Submissions at [43]-[44]

[114] Exhibit R3, Tribunal documents AT 8/2022 T-46, T-66

[115] Transcript of proceedings 1 March 2022, page 26

[116] Pye v The Registrar at [43], [44]

[118] Appellant's submission filed on 13 July 2022, page 18 at [45]

[119] Appellant's Response to the Respondent's Outline of Submissions, page 8 at [44]

[121] Respondent's Outline of Submissions at [45], [46]

[122] See transcript of proceedings 1 March 2022, page 29 at [39]-[47] and page 30 at [1]-[11]

[123] See transcript of proceedings 1 March 2022, page 30 at [13]-[16]

[124] Respondent's Outline of Submissions to the Appellant's Submissions in Reply at [11]

[125] Respondent's Outline of Submissions to the Appellant's Submissions in Reply at [12]

[126] Email from Ms Pye to the Tribunal and the Registrar's representative dated 8 August 2020 paragraph (e); Transcript of proceedings 8 August 2022, page 8

[127] Appellant's submission filed on 13 July 2022, page 18 at [46]

[128] Respondent's Outline of Submissions at [47]

[129] Appellant's Response to the Respondent's Outline of Submissions, page 8 at [47]

[130] Respondent's Outline of Submissions to the Appellant's Submissions in Reply at [13]

[131] Another condition of the Dangerous Dog Licence was that Ms Pye must undertake a course on dog behaviour. The Appeal Tribunal does not know whether the training included instruction on how to secure a muzzle. Ms Butler gave evidence at the original hearing that, in accordance with the Dangerous Dog Licences, Ms Pye needed to undertake training for both dogs. Ms Pye had to be responsible and be held responsible. She had started training with Ms Butler in relation to Tonner: Transcript of proceedings 1 March 2022 pages 102, 119

[133] Appellant's submission filed on 13 July 2022 page 19 at [48]

[134] Respondent's Outline of Submissions at [48]

[135] Appellant's Response to Respondent's Outline of Submissions, page 9 at [48]

[137] Appellant's submission filed on 13 July 2022, page 20 at [50]

[138] Transcript of proceedings 1 March 2022, pages 135, 138

[139] Respondent's Outline of Submissions at [50]

[140] Appellant's Response to Respondent's Outline of Submissions, page 9 at [50]

[141] Respondent's Outline of Submissions to the Appellant's Submissions in Reply at [15]

[142] Transcript of proceedings 1 March 2022 page 140

[143] Transcript of proceedings 1 March 2022 pages 138-139, 147

[144] Transcript of proceedings 1 March 2022 pages 141-142

[145] Transcript of proceedings 1 March 2022 page 141

[146] Transcript of proceedings 1 March 2022 page 139

[147] Transcript of proceedings 1 March 2022 pages 141, 147

[148] Transcript of proceedings 1 March 2022 pages 143-144

[149] Transcript of proceedings 1 March 2022 page 112

[150] Transcript of proceedings 1 March 2022 pages 115-116, 117

[152] Appellant's submission filed 13 July 2022, page 21 at [54]

[153] Respondent's Outline of Submissions at [51]-[52]

[154] Transcript of proceedings 1 March 2022 pages 94, 95, 101, 110, 122

[155] Transcript of proceedings 1 March 2022 pages 110, 116

[156] Transcript of proceedings 1 March 2022 pages 101, 109-110, 117

[158] Appellant's Response to the Respondent's Outline of Submissions, page 9 at [53]

[159] Respondent's Outline of Submissions at [53]-[54]

[160] Respondent's Outline of Submissions to the Appellant's Submissions in Reply at [16]

[162] Appellant's submissions filed on 13 July 2022, page 24 at [60]

[163] Appellant's Response to Respondent's Outline of Submissions, page 10 at [54]

[164] Respondent's Outline of Submissions at [55]

[165] Respondent's Outline of Submissions to the Appellant's Submissions in Reply paragraph 17

[168] Appellant's submissions filed on 13 July 2022, page 24 at [61]

[169] Respondent's Outline of Submissions at [56]-[57]

[170] Appellant's Response to the Respondent's Outline of Submissions, page 10 at [57]

[172] Appellant's submissions filed on 13 July 2022, page 27 at [63]

[173] Respondent's Outline of Submissions at [58]-[59]

[174] Appellant's Response to the Respondent's Outline of Submissions, page 10 at [57]

[176] Appellant's submissions filed on 13 July 2022, page 27 at [64]

[177] Transcript of proceedings 1 March 2022, page 155: "So on the day, we made the judgment call that due to the fact we could still put three fingers under the collar it was loose enough for the dog."

[179] Appellant's Response to the Respondent's Outline of Submissions, page 11 at [60]

[180] Respondent's Outline of Submissions to the Appellant's Submissions in Reply at [19]

[182] Appellant's submissions filed on 13 July 2022, page 29

[183] Appellant's Responses to Respondent's Outline of Submissions at [62]

[184] Respondent's Outline of Submissions at [62], Respondent's Outline of Submissions to the Appellant's Submissions in Reply at [20]

[185] Appellant's submissions filed on 13 July 2022, page 30 at [71]

[186] Appellant's Response to Respondent's Outline of Submissions, page 11 at [63]

[187] Appellant's Response to Respondent's Outline of Submissions, page 1 at [4]

[188] Appellant's Response to Respondent's Outline of Submissions, page 12

[189] Transcript of proceedings 8 August 2022, pages 13-14

[190] Transcript of proceedings 1 March 2022, page 7

[191] Transcript of proceedings 1 March 2022, page 96

[192] Appellant's Response to Respondent's Outline of Submissions, page 5 at [21]

[193] Appellant's Response to Respondent's Outline of Submissions, page 11

[194] Respondent's Outline of Submissions to the Appellant's Submissions in Reply at [21(a)]

[195] Appellant's Response to Respondent's Outline of Submissions, pages 11-12

[196] Pye v The Registrar at [76]-[77]

[197] Respondent's Outline of Submissions to the Appellant's Submissions in Reply at [21(b)]