Smart v Mackay Regional Council [2019] QCAT 236

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

City of Lake Macquarie v Wayne Jeffrey Morris [2005] NSWSC 387

Self-represented by R Muscat, C Sheperd and H Walpole

[1] This is an application made by Bronwyn Joy Smart ('Ms Smart') to review the decision of Mackay Regional Council to issue a notice to declare as a dangerous dog her female desexed blue/white chested Staffordshire bull terrier known as 'Queeny'.

[2] Following an incident on 29 April 2018, on 8 May 2018 a local laws officer, Rebecca Muscat, from the Mackay Regional Council issued a proposed regulated dog declaration notice for the dog Queeny to Ms Smart, the owner of Queeny. Within that proposed regulated dog declaration notice, it was indicated that:

• (a) The dog in question was a dangerous dog pursuant to section 90 of Animal Management (Cats and Dogs) Act 2018 (Qld); and

• (b) The reason for this was the dog had wandered onto private property and maimed a chicken that was inside an enclosure. The dog had forced its way into the enclosure through the wire surrounding the enclosure.

[3] On 8 May 2018 an infringement notice L41314 was issued in relation to the offence of 'animal wandering at large'. At a later time Ms Smart provided a submission as to requesting the discontinuance of the infringement notice however that submission was rejected. It is unclear when but at some point that infringement notice was paid by Ms Smart.

[4] On 19 July 2018 the Mackay regional Council issued their regulated dog declaration information notice and on that notice the stated reasons were:

Dog entered onto private property and maimed a chicken which was inside and enclosure. The dog had forced its way into the enclosure through the wire surrounding enclosure.

[5] Ms Smart made a submission to council to withdraw the regulated dog declaration information notice however that submission was rejected.

[6] The Regulated Dog Declaration Information Notice issued on 19 July 2018 had an attachment to it entitled schedule C - Requirements for Keeping Declared Dangerous Dog. This document indicates a number of conditions for a dog that has been declared dangerous including but not limited to:

• (a) The dog must be desexed;

• (b) The dog must be implemented with a Prescribed Permanent Implementation Device ('PPID');

• (c) The dog must at all times wear a collar with an attached identifying tag meeting certain requirements;

• (d) The dog must be muzzled in public and must be under the effective control of someone who has the control of no more than one dog;

• (e) An enclosure of the dog must be maintained at on the address on the registration notice for the dog. The enclosure must be childproof and stops the dog from leaving the enclosure and there are requirements as to what that enclosure must look like in terms of width height etc.;

• (f) A sign/notice must be placed at or near each entrance to the place where the dog is usually kept notifying the public that a regulated dog is kept on that property and there are certain requirements as to the contents height et cetera of that notice/sign next;

• (g) The dog must not be kept at a place other than that place on the registration; and

• (h) The owner must advise the Mackay regional Council of any change in a residential address within seven days.

[7] On 9 August 2018 Ms Smart made an application for internal review of that decision.

[8] On 15 August 2018 at the Mackay regional Council notified Ms Smart that they were upholding the declaration of Dangerous Dog, the reason for that being:

...evidence shows your dog (Queeny) has forced entry into a chicken enclosure and has caused harm/fear to other animals being the chickens within the enclosure.

[9] On 7 September 2018 the applicant Ms Bronwyn Smart owner of the dog Queeny filed an Application to Review a Decision in the Queensland Civil and Administrative Tribunal. The Application as filed also sought to review the infringement notice. This Tribunal has no jurisdiction in relation to the infringement notice and that issue is not dealt with by this decision.

[10] On 22 November 2018, the Council's decision to issue a regulated dog declaration with respect to Queeny was stayed subject to certain conditions.

[11] The jurisdiction for QCAT to review a decision of the Council is provided under s 188 of the Animal Management (Cats and Dogs) Act 2008 (Qld). Section 24 of the QCAT Act outlines what the Tribunal may do on review. The Tribunal must hear and decide the matter in a way, by way of a fresh hearing on the merits, to produce the correct and preferable decision. It may confirm or amend the decision, set aside the decision, substitute its own decision or set the decision aside and return it to the decision-maker.

[12] A dog may be declared dangerous if, under s 89(2):

• (a) the dog has seriously attacked, or acted in a way that caused fear to, a person or another animal; or

• (b) the dog may, in the opinion of an authorised person having regard to the way the dog has behaved towards a person or another animal, seriously attack, or act in a way that causes fear to, the person or animal.

[13] 'Seriously attack' is defined in s 89(7) as meaning:

...to attack in a way causing bodily harm, grievous bodily harm or death.

'Bodily harm' is defined in schedule 2 as having the meaning given in the Criminal Code Act 1899 (Qld), Schedule 1, s 1 ('the Criminal Code'), which is:

...any bodily injury which interferes with health or comfort.

[14] Attack is not defined. The Macquarie Dictionary states that attack means to 'set upon with force or weapons; begin hostilities against: attack the enemy'.

[15] Subordinate Local law Mackay regional council amended 11/04/2018 states as follows:

Schedule 11 - criteria for declared dangerous animals (section 15)

There is a high likelihood of the animal causing injury to a person or animal or damage to property, taking into account- (a) its prior history of attacking or causing fear to persons or animals or damaging property; and (b) the extent of injury or damage that could potentially be inflicted by an animal of its size and species or breed.

[16] The findings of fact by the Tribunal is that the Tribunal must be 'comfortably satisfied' having regard to the nature and consequence of the facts to be proved.[1]

[17] If ss 89(2)(a) or (b) is satisfied, it is the Tribunal's discretion as to whether a declaration ought to be made, within the context of reaching the correct or preferable decision.

[18] A declaration can be made even if the dog is not in the local government's area pursuant to s 89(5).

[19] The material before the Tribunal which I have taken into account is:

• (a) Application to Review a Decision dated 3 September 2018

• (b) Applicant's Material:

  • (i) Statement of Bronwyn Joy Smart;
  • (ii) Statement of Tony William Hague;
  • (iii) Statement of Crystal Large (First National Sarina);
  • (iv) Statement of June R Kelly; and
  • (v) Submissions.

• (c) Respondent's Material:

  • (i) Statement of Reasons filed 5 November 2018.
  • (ii) Bundle of documents in the respondent's possession relevant to the review proceedings filed 5 November 2018.

• (d) Exhibits numbered 1 to 7 tendered during proceedings;

• (e) Oral Evidence of the Applicant, Ms Smart;

• (f) Oral Evidence of the decision-maker and also investigator Ms Rebecca Muskett - regarding observations at the scene and evidence she gathered in conducting her investigation; and

• (g) Oral evidence of the chickens' owners Mr Peter Rogers and Mrs Christina Rogers.

[20] Council did not oppose the entering into evidence the statements of those witnesses of Ms Smart who were not available for cross-examination.

[21] Ms Smart is the owner of a dog named Queeny.

[22] Queeny, as earlier outlined, is a Staffordshire bull terrier.

[23] On 29 April 2018 Queeny escaped from her fully fenced yard. She made her way into a chicken coop and injured a chicken. The chicken coop was located two properties over in the yard of Mr and Mrs Rogers.

[24] The owners of the chicken Mr and Mrs Rogers located Queeny with her feet on the chicken. They said they put Queeny on a leash and tied her inside the chicken coop.

[25] Her owner Ms Smart found her in their backyard, she says outside of the chicken coop, and took her home.

[26] The owners made an assessment that the chicken would not survive its injuries and broke the chicken's neck thus killing it.

[27] Later council attended and sighted the chicken coop and the dead chicken.

[28] I was told that there is fencing around Ms Smart's premises but that there was no fencing between Ms Smart's direct neighbour and the Rogers' premises (the premises in between Ms Smart's and the Roger's premises).

[29] Ms Smart raised issue as to the validity of the council's investigation. The hearing conducted by the Tribunal is a fresh hearing on the merits.

[30] Issues:

• (a) Did Queeny seriously attack the chickens OR act in a way that caused fear to the chickens?
• (b) If so, how should the discretion be exercised in determining whether a regulated dog declaration should be made?

[31] Ms Smart gave the following relevant evidence in summary:

• (a) Ms Smart has owned Queeny since she was about 8 months old. She is now six years old;

• (b) Queeny has no history of any relevant nature;

• (c) She lived at the relevant time in a rental accommodation, with her three dogs of which Queeny was one. The accommodation was fully fenced. One side of the fence was only wire. She had made approaches to the real estate to improve that area of fencing but was told that such improvements had not been approved by the owner of the property;

• (d) On 29 April 2018 she returned home to observe two of her three dogs at the front of her house (not inside the yard). Queeny was not with them. They (her and a friend) took the two dogs inside but one immediately ran out the back and towards a hole in her wire fence;

• (e) She went looking for Queeny and saw her in the backyard of Mr and Mrs Rogers, two houses down, tied up to the outside of the pool fence. She untied her and took her home;

• (f) Ms Smart said she believed her fence had been deliberately cut as the edges of wire where it was cut or broken were "pulled up" which she says would only happen with human intervention pulling the broken wire. Ms Smart gave evidence that she had been having some problems with her neighbours being the ones who lived between her and the Rogers' house. She opined it was them that cut the fence. There was also some dog vomit and she opined neighbours had attempted to poison the dogs. She obtained no tests of the vomit; and

• (g) She said she moved from the premises in August 2018. Her new premises has appropriate fencing.

[32] Mrs Christine Rogers gave the following relevant evidence in summary:

• (a) The chicken coop was 6 x 3 metres. It was fully enclosed with a maximum height of maybe 5 ft. It is plastic coated steel wire which is supposedly vermin and dog proof. In other words, a dog should not be able to chew through the fencing;

• (b) She had fed her chickens at around 4.30pm that day;

• (c) At about 5.00pm she and her husband were sitting on the front veranda of her property when she heard noise from the chook pen. The noise she described as chickens being in distress;

• (d) She went to check and observed a dog in the pen and she screamed for her husband;

• (e) Mr Rogers ran into the pen. Mrs Rogers followed him in with a rake because she was afraid of him getting attacked;

• (f) Mrs Rogers saw one chicken flopping around and the dog was 'going for' the other chickens. Her husband then rounded up the other chickens;

• (g) She said she thought the dog was 'going for the kill... I am sure the dog thought it was a great game... the dog was not barking or anything, just chasing';

• (h) She could not recall or describe the injury to the chicken as it was 'getting dark';

• (i) Mrs Rogers said that the door to the coop had a faulty clip and she assumed the dog gained access by perhaps rattling the door leading to the clip coming loose and the door opening. (It is noted council confirmed from the bar table that their investigation revealed that indeed the coop had a faulty clip which may have enabled the door to be opened by a dog rattling it);

• (j) She did not recall a hole being in the fence before they tied the dog inside the enclosure. She says she would not have tied the dog in the coop afterwards if it had a big hole in it that would enable the dog to get out of. She is of the view that the hole was caused by the dog getting out of the coop; and

• (k) Her Statutory Declaration that was sworn on 30 April 2018 said at paras 5-6 that 'I noted that there were areas of ripped wire around the pen. I locked the dog in the pen but realised if it got in it could get out so I grabbed two fence panel and my husband reinforced the pen and strapped the door shut'.

[33] Mr Rogers gave the following oral evidence in summary:

• (a) He approached the pen to find the dog was inside the enclosure with the chickens. The dog was standing on a chicken and the chicken was just lying there not moving. He observed one of its legs bent back 90 degrees and there were about half a dozen feathers missing but no blood;

• (b) As he approached the dog hopped off the chicken and the chicken just laid there. He described the chicken was making a noise of a 'dying chook' which he recognised as he grew up in the country where he killed chickens at times;

• (c) He said as he approached the gate and entered the pen, the gate was closed and it was clipped correctly. There was a big hole in the back of the chicken pen;

• (d) He yelled out to his wife to get a dog chain and removed the chickens into an old shower on the back of the house;

• (e) He then killed the injured chicken by stretching its neck;

• (f) He observed the dog was wearing a collar;

• (g) He asked the dog to sit. The dog sat down. The dog sat there while he put a dog chain on him and tied him inside the enclosure attached to one of the steel supports in the chook pen. Whilst he was cautious while doing this, the dog did not evidence any aggression during that process;

• (h) He took photos of the dog in the chook pen; and

• (i) With reference to the Applicant's suspicion of another neighbour's interference, Mr Rogers said had not noticed anything suspicious that day.

[34] Rebecca Muskett the investigator gave the following oral evidence:

• (a) She was on call that afternoon and received the call from the after-hours call centre;
• (b) She attended the address at approximately 6.45pm. She observed the chain to be still in the enclosure but the dog was not. The gate was closed;
• (c) She said it was by then quite dark and they were using torch light;
• (d) Ms Muskett observed the dead chicken. She noticed a deep hole under one of its back legs. There were feathers missing and what she believed to be a broken leg. The hole was the size of a dog's tooth. It was dark and this inspection was by torch light; and
• (e) She did not investigate the neighbourhood dispute issue and could offer no evidence in that regard.

[35] As outlined earlier I need to be satisfied that Queeny seriously attacked or caused fear to the chickens and that I should exercise my discretion in favour of imposing a regulated dog declaration upon Queeny.

[36] I note there was some variance in the evidence provided by the various witnesses and I make no adverse findings in terms of credibility. All parties presented as honest and reliable. It is quite natural that people may have differing recollections of events.

[37] There is insufficient evidence to determine if the dogs were released by a deliberate act of the Applicant's neighbours.

[38] I find that it is most likely that Queenie entered the chicken enclosure by way of a faulty locking system on the door.

[39] I note that there were two other dogs (both owned by the Applicant) who were loose that day. Nonetheless I am comfortably satisfied that Queeny injured the chicken in question. I derive this finding from the fact that when the owners attended the chicken coop Queeny had his feet on the chicken in question.

[40] I am comfortably satisfied that the chicken suffered bodily harm at the hands of Queeny. I cannot be comfortably satisfied that the injury was one which constituted grievous bodily harm or resulted in death. I note the only evidence of injury was of Mr Rogers and Ms Muskett whose evidence is outlined above and the second of which whose observations were undertaken with torch light. Additionally, neither possessed any veterinary or other experience. In those circumstances I am unable to make a finding of grievous bodily harm or that death was as a result of the injury.

[41] It concerns me whether Queeny's actions were one that constituted an 'attack' or whether she was simply (in her mind) playing. His Honour Justice Johnson in City of Lake Macquarie v Wayne Jeffrey Morris[2] considered 'attack' within the meaning of the Companion Animals Act 1998 (NSW). With reference to a number of cases it was extrapolated that the following can be an attack:

• (a) Where a dog 'came at' a person;

• (b) A growling and barking dog charging at a person; and

• (c) Actual contact is not necessary. Barking and yapping aggressively is sufficient.

[42] Whilst none of those examples are on all fours with this case, where contact was made, each of these examples implied aggressive advances rather than a playful one.

[43] I note that Mr Rogers had to open the door of the coop to get to Queeny and the chickens. Queeny, after entering the chicken coop via the broken door was likely then trapped inside a small area with a number of chickens and in some respects it would have been a bit like a bull in a China shop, with a still relatively young and excitable dog faced with wing flapping chickens.

[44] I note as outlined above, Mrs Rogers gave evidence, notably, that Queeny was 'going for the kill... I am sure the dog thought it was a great game... the dog was not barking or anything, just chasing'. Mr Rogers observed Queeny to have a chicken under his paws and that the chicken was injured. If Queeny had wanted to immediately kill that chicken I am satisfied she could have easily done so when balancing her size and strength with the natural size and strength of a chicken. Therefore the fact that the chicken was not killed in my view can be supportive of Queeny thinking it was a 'great game' rather than indeed 'going for the kill'.

[45] Accordingly, I am not comfortably satisfied that Queeny was 'attacking' in the context of his interactions with the chickens.

[46] However, from Mr and Mrs Rogers' observations it is clear that either way the chickens were fearful during the incident. Accordingly, I am satisfied that Queeny caused fear to the chickens.

[47] Having satisfied the requirements in section 89(2) I now turn to the final question which is whether I ought to exercise my discretion in making a declaration. All parties contented that indeed the Act conferred a discretion where the subdivision factors were satisfied. Council submitted that in exercising my discretion as to whether I make a declaration I should have due care for the public health and safety. I accept that is one important factor I should consider in exercising my discretion.

[48] I earlier outlined Mr Rogers' evidence of Queeny's behaviour when he acted to restrain Queeny. It is notable that Mr Rogers was completely unknown to Queeny. In extrapolating from his evidence it appears Queeny was not possessive of the injured chicken and hopped off the chicken as approached. She sat when requested. It seems to me that Queeny is obedient to commands, including of strangers. She is comfortable with strangers approaching her and not likely to be aggressive if someone is approaching her neck or attempting to tie or restrain her.

[49] Taking into account relevant issues in the local regulations as outlined above, Queeny is a (relatively) small, though bulky dog. The bread is often known as aggressive dogs having originally been bred as fighting dogs. Balancing that, Queeny is desexed and has no prior history. Her owner has remedied the fencing issue by having now relocated. There have been no further issues.

[50] Accordingly, I exercise my discretion in favour of not making a dangerous dog declaration.

[1] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.

[2] [2005] NSWSC 387.