1. By application filed with the Tribunal on 25 November 2011, the applicant sought to review a decision of the Bayside City Council (the Council) made on 28 October 2011, declaring a tan/white American Bulldog, registered in the applicant's name, to be a dangerous dog. This was in accordance with section 34 of the Domestic Animals Act 1994 (the Act). The applicant's dog is named Rocky.

1. The purpose of the Act is stated in section 1:

The purpose of this Act is to promote animal welfare, the responsible ownership of dogs and cats and the protection of the environment by providing for -

(a) a scheme to protect the community and the environment from feral and nuisance dogs and cats; and

(b) a registration and identification scheme for dogs and cats which recognises and promotes responsible ownership; and

(c) the identification and control of dangerous dogs, menacing dogs and restricted breed dogs; and

1. Section 3 relevantly defines dangerous dog as follows:

(a) a dog which has been declared to be dangerous by a Council under Part 3;

1. Section 3 defines serious injury as follows:

(a) an injury requiring medical or veterinary attention in the nature of -

(iii) a partial or total loss of sensation or function in a part of the body;

1. Section 34, 35, 36, 38, 39, 40 and 41 relevantly provide as follows:

(1) A Council may declare a dog to be a dangerous dog -

(a) if the dog has caused the death of or serious injury to a person or animal by biting or attacking that person or animal; or

(2) The Council must not make a declaration under subsection (1)(a) if the incident occurred -

(a) because the dog was being teased, abused or assaulted; or

(b) in the case of injury to a person, because the person was trespassing on the premises on which the dog was kept; or

(c) in the case of injury to another animal, because the animal was on the premises on which the dog was kept; or

(d) because another person known to the dog was being attacked in front of the dog; or

(e) as part of a hunt in which the dog was taking part and which was conducted in accordance with the Prevention of Cruelty to Animals Act 1986.

(b) cannot be revoked, amended or otherwise altered.

(2) If the Council proposes that a dog be declared dangerous and the proposal does not arise from an application from the owner, the Council must -

(b) allow the owner the opportunity to make both written and oral submissions to the Council.

(3) The Council must consider any material submitted to it before making a declaration.

1. Council must give notice of a declaration to owner

(1) If the Council has made a declaration that a dog is dangerous it must serve written notice on the owner of the dog that that declaration has been made.

(a) be served, either in person or by registered post, within 7 days of the making of the declaration; and

(b) give reasons for the making of the declaration.

38 Restraint of dangerous dogs when on owner's premises

(1) When a dangerous dog is kept on residential premises of the owner of the dog, the owner must ensure that -

(a) if the dog is inside any dwelling on the premises, it is confined in such a manner -

(ii) that a person cannot enter the dwelling unless admitted by an occupier of the premises who is of or over 17 years of age; and

(b) there is on the premises, outside any dwelling, a prescribed enclosure; and

(c) when the dog is not inside any dwelling on the premises, the dog is kept in a prescribed enclosure.

(3) In this section prescribed enclosure means an enclosure -

(b) that is constructed in such a manner that a person cannot have access to it without the assistance of an occupier of the premises who is of or over 17 years of age; and

The owner of a dangerous dog must display warning signs which comply with the regulations at all entrances to the premises where the dog is kept warning people that a dangerous dog is kept on the premises.

The owner of a dangerous dog must ensure that at all times the dog wears a collar of the kind prescribed.

41 Restraint of dangerous dogs off the owner's premises

(1) If a dangerous dog is outside the premises of its owner and is not -

(a) muzzled in a manner which is sufficient to prevent it causing injury by biting; and

(b) under the effective control of some person by means of a chain, cord or leash -

the owner of that dangerous dog and any person for the time being in charge of the dog are guilty of an offence and liable to a penalty of not more than 5 penalty units for the first offence and 10 penalty units for a second or subsequent offence.

1. The Act also sets out controls over two other categories of dogs: "menacing dogs" and "restricted breed dogs". The category of menacing dog relates to dogs which are less threatening than "dangerous dogs". The restrictions are correspondingly less onerous.

1. Rocky is a large dog, who was aged 18 - 24 months during the time of the attacks reported. He weighed about 40 kgs. Rocky is an "entire" dog, that is, he is not desexed. Although Ms Schegaleva said she had papers proving that he was a purebred American Bulldog, a number of people have mistakenly referred to him as a "White Bull Mastiff".
2. At the hearing the Council indicated that the matters it relied on were:

(3) The conduct of Ms Schegaleva in failing to have her dog "on leash" on three occasions (10 February, 1 April and 26 May 2011) and to register it for a period of more than a year after she commenced to have custody of him.

1. There was some dispute about the process which had occurred for the making of the declaration by the Council. The Council said it had served notices of proposed declaration of the dog as a dangerous dog on 22 September and 6 October 2011. It said that the applicant communicated with it on 6 October and was given a further 14 days in which to make submissions about the proposed declaration.
2. Ms Schegaleva on the other hand contended that she was not given clear information as to when her submission was due. She understood she had 28 days to make a submission. On 31 October 2011, after the declaration had been made, she wrote an extensive submission, seeking to have the declaration reviewed. However, the Council responded on 21 November 2011 that it was too late - Council had already made its decision, but she could seek review at VCAT.
3. In any event, this is a "de novo" review, meaning that the Tribunal makes the whole decision afresh. I have taken Ms Schegaleva's submissions of 31 October 2011 into account, together with the evidence and submissions provided prior to, and at the hearing, in making this decision.
4. The respondent prosecuted the applicant for summary offences arising out the second attack. She pleaded guilty, and so was found guilty, with conviction, of offences under section 29(4) and section 26(1) of the Act. Section 29(4) applies to an owner of a dog which is not declared to be a dangerous dog, which attacks or bites any person or animal and causes death or serious injury to the person or animal. Section 26(1) applies to the owner of a dog which, in this case, contravenes an "off leash" requirement. The aggregate penalty imposed by the court was a fine of $2,200.00 plus costs of $44.00, and an order to pay $1219.30 in compensation to the victim (for the victim's veterinary bills).
5. Ms Schegaleva gave extensive evidence and submissions at the hearing and also produced a number of statements by friends and a neighbour in support of Rocky's character or nature. For the Council, evidence was given by the victim of the second incident, Ms Monica Szwaja, a witness to the second incident Graeme McConville, and a Council animal managemnet officer, Ms Cassandra Dunn.

1. On 24 February 2011, at approximately 7.30 pm, a teenage girl was walking her dog, a golden retriever, in Spring Road, Hampton East. She met Ms Schegaleva, who was walking Rocky, and it was agreed their dogs could play together for a while. The dogs played with a small toy which Ms Schegaleva had with her as a plaything for Rocky. After the dogs had been playing for a few minutes, Rocky bit the golden retriever. Ms Schegaleva said this was in reponse to Rocky being nipped on the face by the other dog. This was not mentioned in the complaint the Council had received from the golden retriever's owner. Neither the teenage girl, nor the owner (her mother) gave evidence, and so it was not possible fully to explore this question. In any event, Ms Schegaleva agreed that Rocky held the golden retreiver in his jaws for a period, and that she had to hit Rocky on the head to get him to release the golden retriever from his grip.
2. The girl then called her mother to come and pick her up as the golden retriever had been injured in the attack. It was covered in blood. The mother and her daughter took the dog directly to see a vet. The golden retriever presented with four bite wounds which required treatement. The wounds were cleaned out, and pain killers and antibiotics were administered.
3. The victim in relation to the first incident did not wish to take the matter further so no formal statement was made, however, an on-line report of the incident was lodged with Council.
4. Ms Schegaleva submitted that the first incident should not be relied upon, given that the teenage girl was not called to give evidence, and so could not respond to her propositions that:
   • The golden retriever bit Rocky first
   • Rather than being an unprovoked attack, two dogs were "fighting", initially playfully, over a toy which Ms Schegaleva had brought along for Rocky to chase.

1. From the evidence of the participants, the following story emerged of the second attack. At about 10.00am on 31 July 2011, Ms Monica Szwaja entered Spring Road Park in Hampton East. She was walking her 7kg Shih Tzu, named Ruby, on a leash. She took three or four steps into the Park, when, without warning Rocky, who was illegally off the leash in the Park, attacked Ruby. Ms Szwaja described Rocky initially grabbing Ruby from behind. Ms Szwaja then tried to pull Ruby into her arms, and a tug of war ensued between Ms Szwaja and Rocky. At one point in the struggle, Ms Szwaja placed her hand near Rocky's mouth and received a puncture wound. Ms Szwaja said she did not believe Rocky deliberately tried to bite her, rather, it was all part of the scuffle. However, she momentarily let go of Ruby.
2. Rocky then grabbed Ruby by the neck, and locked her head and/or neck in his mouth and began shaking her. Ms Szwaja, who had been knocked to the ground, managed to crawl forward and grab Ruby again. She found herself underneath Rocky. She tried to prise Rocky's jaw open. By this time, Mr McConville (who was walking by the park), and Ms Schegaleva (who had been sitting on a seat in the park) had arrived on the scene. Mr McConville kicked Rocky and Ms Schegaleva grabbed him from behind by the collar.
3. After a period of between 3 and 5 minutes since the start of the attack, Rocky released his grip and Ms Szwaja sought to retrieve Ruby in her arms. However, she first had to lift Ruby up to "unhook" her from Rocky's teeth.
4. After this, Ms Szwaja who had been very emotional and screaming, was attended by bystanders who had arrived at the scene, and taken first to a Veterinary Clinic (for Ruby) and secondly, to a medical clinic (to treat her own injuries).
5. Ms Schegaleva tied Rocky up and contact details were exchanged.
6. The veterinary report described Ruby's injuries as

Wounds to head and neck, consistent with a dog attack. There were several lacerations, adjacent to the structures of the neck and a full thickness laceration of the pinna.

1. Ms Szwaja also stated that there were puncture marks on her dog's hind quarters, and that the fleshy part of her ear had been bitten right through.
2. Ruby was given painkillers, a drip and sedated whilst receiving stitches and a drain for the puncture wounds at the back of the neck. The veterinary fees for Ruby were $1,219.30. As stated above, the magistrate ordered Ms Schegaleva to pay that sum to Ms Szwaja.
3. Photographs were tendered which showed tearing extending much of the way around Ruby's neck, and a number of puncture marks. Ruby recovered from her physical injuries, although remains more timid than before the incident.
4. Ms Szwaja suffered bruises to her face, a bite and bruising on the right hand, bruising on the right knee and thigh and right elbow. She was extremely upset and had interrupted sleep for the next week or so. She stated at the hearing that she was now feeling better. Nevertheless, she is still on edge when she takes Ruby for walks.
5. Ms Schegaleva also suffered injuries from the incident. She attended the Alfred Hospital where she was treated, in particular, for lacerations to her left index finger.

1. It was submitted on behalf of the Council that Ms Schegaleva's conduct in failing to comply with "on leash" requirements on at least four occasions, and the delay in registering Rocky, were relevant to the exercise of the discretion as to whether to declare Rocky to be a dangerous dog. It was also submitted that Ms Schegaleva had not paid the outstanding fines owing to Council for the infringement notices, nor the fine and costs ordered by the Magistrates' Court, nor the veterinary bill to Ms Szwaja. Ms Schegaleva indicated she did not have a substantial income, and fully intended to pay the debts off in instalments over time.

1. In the light of the above evidence, I find that Rocky has caused serious injury to the Shih Tzu, Ruby, by attacking and biting her. The lacerations suffered by Ruby constitute a serious injury within the meaning of that expression as defined in section 3 of the Act.
2. Although it was part of the Council's case that Rocky had bitten Ms Szwaja, I find that that "bite" does not comprise a second basis for invoking section 34(1)(a). As indicated, Ms Szwaja stated that she did not believe Rocky consciously tried to bite her. Further, it is not clear the harm suffered by Ms Szwaja could be described as a "serious injury" under the Act.
3. Accordingly, the basis for the exercise on which the discretion to make a dangerous dog declaration has been established. The next question is how should the discretion be exercised?

1. In relation to the question of how the discretion could be exercised, Ms Schegaleva submitted:
   • In lieu of a dangerous dog declaration being made, she was prepared to give an undertaking that Rocky would be muzzled at all times in public, and kept on a leash. At all other times, Rocky would be effectively confined in her first floor flat (she has no garden).
   • She said Rocky himself had been a victim of a bite from another dog in January 2011, and this may have contributed to his response to the golden retriever in the first attack.
   • She also suggested the actions of Ms Szwaja and Mr McConville during the incident contributed to Ruby's injuries.
   • She distinguished Rocky's character from his breed, implying that whilst he had good character, it may be that by virtue of being an American Bulldog, Rocky might have some fighting characteristics.
   • Ms Schegaleva produced the following references as to Rocky's character and nature from friends and family as follows:
     1. Statutory declaration by Sally Ann Strachan stating that for a period in February 2012, Ms Schegaleva looked after her dog Roxy, together with Rocky, while Ms Strachan was in hospital. She declares that during this time Rocky showed no aggression towards Roxy and Roxy was returned to her without any damage.
     2. A reference from Ebony Ciantar describing Rocky as a playful but gentle and caring dog who she has never known to be aggressive towards people or animals.
     3. A letter from Emma Bayly-Stark, the applicant's neighbour over the road. It states that during the last two years Rocky has regularly played with her two border collie cross dogs, and she has never observed Rocky being aggressive with another dog during these meetings.
     4. An email dated 20 March 2012 from Tayla Wigfield stating that she had taken Rocky on many walks to many parks before, and never had a problem with him, that he is a very sociable and non-aggressive dog who has never shown any tendency to want to attack another dog or human.
     5. An email from Sallar Abbas which refers to Rocky as a wonderful and innocent dog, well disciplined and trained, good with kids and all neighbours.
   • She also made submissions on a number of matters which are not of relevance to the exercise of the discretion, including concerns with the Council's processes, and the response of various people to the second attack.
2. Ms Schegaleva did, however, admit that she was to some extent scared by what happened in the second incident. She admitted she did not trust Rocky to the same extent as she did before.
3. In relation to the exercise of the discretion, the Council submitted that:
   • An undertaking would be difficult to monitor and to enforce, and that where a dog does constitute a danger, the mechanism provided under the Act for the protection of the public and other dogs, was for there to be a declaration that a dog was a dangerous dog. The effect of an undertaking would be undermined if Rocky was passed into somebody else's custody, or if Ms Schegaleva moved out of the City of Bayside. Whilst an undertaking was accepted in the particular circumstances in Feakes v Cardinia City Council [2010] VCAT 1436, a number of subsequent decisions had pointed to the difficulty of accepting undertakings (in particular, Bugter v Mooralbool Shire Council [2011] VCAT 1833).
   • The evidence, and in particular, the second incident, indicated that there are very real concerns for public safety arising out of Rocky's behaviour.
   • The additional obligations which a dangerous dog declaration would impose on Ms Schegaleva would not be too onerous in her particular circumstances. Ms Schegaleva's main concern was the sign on her premises, and the obvious collar which is required to be worn.
   • Ms Schegaleva's conduct was relevant and indicated that she did not have sufficient regard for the rules imposed to protect the public.

1. The discretion conveyed by section 34 of the Act is an open one. It is to be exercised in furtherance of the relevant objects of the Act, most importantly, the protection of people and animals.
2. In relation to the first attack, firstly, even if Ms Schegaleva's version of events is wholly accepted, the circumstances would not amount to Rocky being teased, abused or assaulted within the meaning of section 34(2)(a). As the Tribunal found in Gielen v Maroondah City Council ([1999] VCAT 1973) under the Act, the teasing, etc, is to be done by a human, not another animal. Further, there is insufficient evidence to show that occurred in this case, in any event.
3. I conclude that the first attack would not, of itself, be sufficient to support a conclusion that Rocky should be declared a dangerous dog. It does however, suggest a propensity to bite other dogs in some circumstances, to hold them between his jaws, which are very large, and to maintain that hold for some time.
4. However, I have no doubt that a declaration should be made on the basis of the second attack alone. The attack on the Shih Tzu, Ruby, was a very serious one, and the injuries sustained were major. There were lacerations extending much of the way around the smaller dog's neck, and puncture wounds to its head and elsewhere. The extent to which Ruby's injuries were exacerbated by the conduct of actions of Ms Szwaja and Mr McConville during the incident is speculative, and in any event, one cannot place too much responsibility on those individuals in responding in the heat of the moment to such a serious attack.
5. In relation to the matters relating to Ms Schegaleva's conduct, it is not clear to me that these can be invoked in the exercise of discretion in this case. There might be an argument that the determination of the question whether a dog is dangerous under the Act is to some extent affected by the general attitude of its owner towards the fulfilment of her obligations towards the community relative to dog ownership, although I feel this is not strong. In the circumstances, it is not necessary for me to determine this issue. Concerning Ms Schegaleva's non- payment of her various debts associated with her ownership of Rocky, the Council stated it understood she had only limited means to pay. I regard the recovery of debts owed to the Council as a separate issue and not relevant to the exercise of discretion in this case.
6. In relation to the suggested undertaking, each case must be considered on its own merits, and I find the factors in paragraph 35 above apply such that it is not appropriate here.
7. I accept that Ms Schegaleva has cared for Rocky as best she can, in difficult circumstnaces. I accept that the letters from her friends and neighbours express genuinely held beliefs.
8. However, I have concluded it is clear that Rocky does present a significant risk to the community. In the light of the evidence I have heard, I have no confidence there will not be another attack. The risk is exacerbated by his size, strength and weight.
9. Ms Schegaleva indicated that if a declaration was made, she would have to give serious consideration to whether she continued to have custody of him. She acknowledged that her accommodation arrangements - she lives in an upstairs flat with no garden - are not satisfactory for keeping a large energetic dog. I agree it would be highly desirable for her to seek to put more satisfactory arrangements in place.

1. For these reasons, the respondent's decision is affirmed.