1. It was stated by the respondent, in giving reasons for the declaration, that Dakota was at large with another dog, a black Labrador, owned by the applicant. Dakota and the black Labrador chased a white and grey fluffy cat down the footpath of Pillinger Street and into a driveway. It was alleged that Dakota then caught the cat, maintaining a firm grip of the cat in his mouth. The cat suffered injuries that resulted in its death.

1. The applicant now applies to have the declaration set aside. The power of this court to review the decision, to confirm it or set it aside is contained in section 31 of the Dog Control Act.
2. The applicant does not challenge that Dakota was at large and with his black Labrador at the time of the incident. However the applicant submits that; (i) the evidence is uncertain as to the roles played by each dog in the incident; (ii) the nature of the incident was not particularly vicious but represented normal instinctive behaviour; (iii) that Dakota is a friendly and good tempered dog; (iv) that he has never been responsible for harming any person or animal previously and; (v) that the applicant is a responsible dog owner and has proper safeguards and security in place to contain Dakota.

1. The decision by the respondent to declare Dakota a dangerous dog was made under s29 (1)(a)(i) and (ii) of the Dog Control Act. That states:

"29. Declaration of particular dangerous dog

(1) A general manager, by notice served on the owner of a dog -

(a) may declare that dog to be a dangerous dog if -

(i) the dog has caused serious injury to a person or another animal; or

(ii) there is reasonable cause to believe that the dog is likely to cause serious injury to a person or another animal; ..."

1. The term "serious injury" is defined in s3 of the Dog Control Act to mean:

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

(i) a broken bone; or

(ii) a laceration; or

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

(b) an injury requiring medical or cosmetic surgery;

1. The term "laceration" is defined in the Act as meaning "a wound caused by (a) the tearing of body tissue; or (b) multiple punctures caused by more than one bite from a dog.

1. Pursuant to Section 26 of the Magistrates Court (Administrative Appeals Division) Act 2001 the nature of the review is by way of hearing de novo and the Court may exercise all of the functions that are conferred or imposed by any relevant enactment on the decision-maker who made the decision.

1. A finding that Dakota caused serious injury to the cat is a precondition to the exercise of the discretion to make the declaration.

1. The evidence of the injuries to the cat particularly relevant to the definition of "serious injury" comes from the unchallenged report of veterinarian Dr Jennifer Cormack. Those injuries are as follows:

- 2mm puncture wound with blood staining to caudal abdomen medial to caudal left nipples;

- 10mm superficial tear to skin of caudal aspect of left thigh with bruising;

- Puncture wound in left groin and associated extensive bruising;

- Distal fracture of sternum between 6th and 7th sternebrae.

1. I accept Dr Cormack's conclusion that the cause of death was cardiac damage from the sternal fracture sustained from dorso-ventral compression to the caudal chest. I also accept her conclusion that the impression marks and saliva residue and spacing of the bite marks found on the cat are consistent with a dog bite injury by a large dog.

1. I find that the cat sustained serious injury. The basis for that conclusion is that the cat sustained "an injury requiring medical or veterinary attention in the nature of a broken bone". A fracture of the sternum I find satisfies the definition of a "broken bone". The Oxford English Dictionary defines "fracture" as:

"The action of breaking or fact of being broken; breakage; spec. in Surg. (the earliest use), the breaking of a bone, cartilage, etc." and "The result of breaking; a crack, division, split; a broken part, a splinter"

1. The word "fracture" unequivocally equates in this context with being "broken". The fact that the cat died and ultimately was too late to receive veterinary treatment does not mean that such treatment was not required. It would be an absurd interpretation of this provision if the death of the animal from the injury was able to defeat it. The cardiac damage from the fracture was the ultimate cause of death, and therefore the gravity of this injury dictated that veterinary treatment would have been required if the cat had not died.

1. As a note, the two puncture marks are not in the category of being able to satisfy the court that they are "multiple punctures" caused by "more than one bite from a dog". Even if I found that two marks could be termed multiple (which I doubt) then the evidence suggests that they are from just one bite by a large dog.

1. In relation to the 10mm superficial tear, whilst I might be satisfied that it involved "the tearing of body tissue" I am not able to be satisfied that that in itself required veterinary or medical treatment. That evidence was not given by Dr Cormack. I note also that it was described as a "superficial tear" to the skin.

1. The evidence in the hearing was in three categories - (a) evidence of the incident; (b) evidence of the friendly nature of Dakota; and (c) the qualities of the applicant as a dog owner.

1. There were two eyewitnesses, Alistair Scott and Annie Ekins.

"1. At about 7.30am on Wednesday 24 August 2011 I was walking down Pillinger Street, just down from the RAW delicatessen, carrying my two year old grandson when I noticed two dogs, a medium size black dog and a husky looking dog at large in the street in the vicinity of 28 Pillinger Street.

2. As we walked down toward them, I saw the two dogs suddenly rush across the street onto the lawn of 17 Pillinger Street, and they chased a white and grey fluffy cat down the footpath to the driveway of 15 Pillinger Street, where they caught and attacked the cat. Both dogs were there, and the cat had no chance. As I was keeping my distance I cannot determine the individual actions taken by each dog."

1. Mr Scott states that both dogs continued to roam the street after leaving the cat lying in the driveway. They then returned to the nearby address where they appeared docile. Mr Scott gave very good clear evidence. I accept his evidence that both dogs were closely involved. However Mr Scott's attention was diverted by the need to ensure that his 2 year old grandson who he was carrying was safe, and thus was unable to differentiate the roles of the two dogs.

1. The other eyewitness to the incident was Annie Ekins. Ms Ekins made a statement about her observations on 29 August 2011, 5 days after the incident. She signed that statement as being true and correct. In the statement she said:

"Two dogs were at large in the street - a black dog and a large husky. I recognised the dogs as they are owned by a [sic] someone who also lives in the street;

I looked out my bedroom window, which is on the second storey of my house, and I could see the husky attacking my neighbour's cat in their driveway. As I was looking down on the attack from above, I had a clear view of the driveway and the dogs;

The husky had the cat on the ground, and appeared to be holding it in its mouth and biting it. The cat was struggling; however it could not free itself as the husky maintained a firm hold of the cat in its mouth. The cat was making a lot of noise;

The black dog was nearby, however it was further back from the husky and was barking;

I went outside and yelled at the husky in an attempt to stop it from attacking the cat; however it would not listen and continued. I did not want to approach the dog.

I did not see the black dog attacking the cat; however it was nearby and within close proximity."

1. At the hearing of this matter it became apparent that Ms Ekins, a neighbour of the applicant, was not a co- operative witness for the respondent. She did however reluctantly appear on the adjourned hearing. At that appearance she gave evidence on oath, and significantly retracted the evidence in her statement. She said under oath that she did not actually have vision of the husky attacking the cat. She stated that the husky appeared close to the cat but could not confirm that it had the cat in its mouth. She stated that she did not hear growling or see the showing of teeth, but did hear barking. She stated, in complete contradiction to her statement, that she did not at any time see the husky bite or take hold of the cat but did see the husky in close proximity to the cat. There was an appearance of the dog's nose pressing near the cat. She said that her previous signed statement was incorrect and made because of her being flustered in the presence of the Council officers reject this explanation. Even in her evidence in court she accepts she knew that the cat was distressed presumably from being trapped by the dogs somehow. She stated that the applicant is her friend and in particular her partner's friend. The applicant also lives close by in the same street.

1. The evidence of Ms Ekins was unhelpful and appeared rehearsed. At one stage when finding it difficult to explain her retractions she started to cry. There was no reasonable explanation for modifying her statement except to protect the applicant. She made her written statement 5 days after the incident and when the incident was fresh in her mind. I was most unimpressed with her attempts to modify her evidence on the basis that she did not have good vision. She clearly saw dogs, a distinct black one and a mostly light coloured husky. There would be no reason for her to make such a statement if it was not what she had witnessed. I am satisfied that she did see the husky attacking the cat and holding it in its mouth. I do however accept her evidence that the duration of attack was short and there was a lack of interest in the cat by the husky after the incident. Such evidence is corroborated by Ms Sandra and Mr Scott.

1. I accept Mr Scott's evidence that the duration of the attack was about 15-20 seconds with both dogs being in close proximity. I accept that after the attack the dogs were docile.

1. Ms Sandra Hogue, the cat's owner stated that she was returning in her car to her house after a trip to the supermarket when she saw the husky sniffing and nuzzling something on the ground. After getting out of her car she determined that it was her cat and it was deceased. It is likely that it died shortly after the incident and just before Ms Hogue arriving home.

1. It appears that both dogs returned voluntarily to their property. The applicant was not home at the time. He had left to go to the gym and was certain that he shut the gate. His partner was home. The applicant is convinced that someone must have opened the gate as neither he nor his partner did so in the one hour he was away from the premises.

1. I accept the unchallenged evidence of animal management officer Robert Sciberras as that throughout the investigation the applicant was co-operative and honest, and in his opinion a responsible dog owner.

1. The applicant's evidence was largely unchallenged and I accept it as follows:

• Dakota was purchased by the applicant at approximately 14 weeks of age in early 2005 and has since lived in his care for almost 7 years.

• Prior to being declared a dangerous dog, Dakota was free to roam in the garden of the houses where the applicant lived and also the interior of the houses. Both of the applicants' dogs would normally sleep inside his house.

• At the time that the cat was killed, the applicant had recently moved to a house at 28 Pillinger Street. Prior to that he had lived in Albuera Street. The applicant's Albuera Street property had a high security fence and had a key lock on the entrance gate from the public street.

• When the applicant moved into 28 Pillinger Street he realised that the same degree of security was not available there and so immediately after moving into Pillinger Street he ordered the supply and installation of an internal garden fence of a height of approximately 2 metres and enclosing, within the existing protected boundaries of the property, an area of lawn and garden of approximately 20 metres by 25 metres in area.

• The applicant ordered the internal garden fence to be accessible only by a key lockable gate. The installation of this new fence commenced on the day after the incident of 24 August 2011. As at 24 August 2011 the applicant had been living at 28 Pillinger Street for less than four weeks.

• Both the Albuera Street property and the Pillinger Street property were close to busy roads and the applicant believed he had a responsibility to ensure that his dogs did not leave his property unless on a lead and to ensure that they would be no nuisance or danger to the public or themselves. Despite this view he did not believe they posed any particular danger above the need to control any dog.

• Over the period the applicant has owned Dakota he has observed his many interactions and behaviour with others. At no time had the Applicant observed Dakota displaying aggression of any kind. His general demeanour towards humans was of affection but not in an overbearing manner - that is, he would greet people by approaching them and sniffing around their legs but never jumped up or acted in a boisterous manner. Having thus greeted a visitor he would then return to his previous activities.

• The applicant did not know how the dogs left his property on 24 August. Even before the installation of the internal garden fence, it was simply not possible to inadvertently leave the gate open. It is beyond doubt that the gate was opened and left open by a third party and by an intentional act.

• The installation of the internal garden fence to which the applicant has referred earlier removes the possibility of the applicant's dogs leaving the property as a result of such intervention by a third party.

• To properly safe guard and secure his dogs the applicant paid about $3,000.00 for the internal garden fence at 28 Pillinger Street. That expenditure was incurred before the incident with the cat.

• After the incident, the applicant paid the sum of $1250 to Ms Hogue's family for the cost of a new kitten and other items in compensation for their loss.

1. It was faintly suggested to the applicant in cross-examination that he took action to confine the dogs over and above what would be considered usual due to suspicions of dangerous behaviour. I do not accept that this was the case. Mr Stewart struck me as a devoted and most responsible owner of 2 sizeable dogs who recognised that it was important to contain them properly for their own protection and that of the public.

1. In relation to the general temperament of Dakota the applicant's evidence has been set out above. The applicant particularly relied upon expert evidence of Dr Peter McKean. Dr McKean's report and evidence was thorough.

1. Dr McKean examined Dakota for the purpose of ascertaining and testing his temperament. Dr McKean is a veterinary surgeon of 35 years. He is experienced in ascertaining the temperament of dogs. On the date of the examination, post the incident, Dakota was accompanied by the applicant's father and not the applicant. Dr McKean's evidence was firm, not the subject of vigorous challenge and there was no opposing expert evidence. Part of Dr McKean's report is based upon information directly from the applicant about the steps taken by him to contain Dakota. Dr McKean's comments in this regard verge upon advocacy for the applicant. However Dr McKean's expert opinion as to his testing of Dakota's temperament is relevant and important. I set out below extracts from Dr McKean's report that are particularly relevant to this determination:

" I would like to make the point here that it is very much in the inherent, essential nature of all dogs to chase, run down and, if they catch it, to kill their prey. It is likewise inherent behaviour in cats to do the same; in fact, all predatory species have the hunt and kill behaviour pattern deeply ingrained. Without it, they would long ago have ceased to exist as species.

I found it interesting that in this case the dog did not tear the cat to pieces, nor maul it to any appreciable extent. My subsequent examination and observations of the dog were entirely consistent with these facts.

It appears that Dakota caught the fleeing cat and, probably reflexively, bit it, probably only once. From the witness statements he then seemed to have shown some curiosity and muzzled and sniffed the cat. Dakota did not appear to show any aggressive behaviour once the brief episode was over, but in fact seems to have decided that he preferred to be in his own yard, and returned there pretty quickly.

...

The dog was brought into the waiting room where I had the opportunity to observe it for about 15 minutes.

There were other dogs in the waiting room and there were also several cats. One cat was in a cage less than a meter away from Dakota. Dakota showed no sign of antagonism towards any of the cats; he did not strain on his leash; he did not bark or whine of indicate any antisocial behaviour directed towards any of the cats or other animals in the waiting room whatever.

I performed a detailed physical examination of the dog and I conducted some basic procedures to test the dog's temperament.

...

In the process of conducting my detailed physical examination I performed a number of procedures which to a dog are either threatening or painful or both and it is quite common for veterinarians to have to resort to strong physical restraint and muzzling the animal in order to perform such an examination in safety.

In the case of Dakota, no such restraint was necessary whatsoever. His behaviour was exemplary at all times during my consultation, and it ought to be remember that he was not in the control of his owner, but of his owner's father.

I deliberately invaded the dog's personal space, sought eye contact, opened his mouth, retracted eyelids - in fact a whole set of procedures that would usually provoke a strong protective response.; but this dog is so well socialised, and of such good temperament, that I had no need of any concern or any restraint.

His response to the aggressive overtures associated with temperament testing was pretty well as good as it ever gets.

...

In the unlikely event that the dogs were to get out again I would consider it likely that the dog would show any aggressive behaviour. Certainly, most dogs if confronted with a fleeting cat will ... It is fairly rare in my experience for a dog doing the chasing to actually catch the cat".

1. I accept the evidence of Dr McKean. It corroborates the evidence of the applicant as well as the evidence of the other persons reporting that Dakota is a most friendly and well-adjusted dog.

1. The other evidence as to temperament was in the form of 3 letters from individuals who have had significant opportunity over several years to observe Dakota. In particular the proprietors of the Longford Park boarding kennels and the grooming salon Dog's Business state that they have experienced Dakota to be friendly, loveable with never any sign of aggression. Witnesses have observed Dakota in the close presence of other animals. This is also important unchallenged evidence of Dakota's general temperament.

1. I turn to consider how the discretion conferred by section 29 of the Dog Control Act is to be exercised.

1. Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 stated at p40:

"What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard: see Reg. v. Australian Broadcasting Tribunal; Ex parte 2HD Pty. Ltd. 33, adopting the earlier formulations of Dixon J. in Swan Hill Corporation v. Bradbury 34, and Water Conservation and Irrigation Commission (N.S.W.) v. Browning 35. By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act."

1. In R v Hunt; Ex parte Sean Investments Pty Ltd [1979] HCA 32; (1979) 25 ALR 497 the court was dealing with legislation that read:

"The Permanent Head shall, in determining the scale of fees in relation to a nursing home for the purposes of sub-paragraph (i) of paragraph (c) of the last preceding sub-section, have regard to costs necessarily incurred in providing nursing home care in the nursing home."

1. Mason J with whom Gibbs J agreed stated at p504:

"When sub-s (7) directs the Permanent Head to "have regard to" the costs, it requires him to take those costs into account and to give weight to them as a fundamental element in making his determination. There are two reasons for saying that the costs are a fundamental element in the making of the determination. First, they are the only matter explicitly mentioned as a matter to be taken into account. Secondly, the scheme of the provisions is that, once the premises of the proprietor are approved as a nursing home, he is bound by the conditions of approval not to exceed the scale of fees fixed by the Permanent Head in relation to the nursing home. In many cases it is to be expected that the scale of fees will be fixed by ascertaining the costs necessarily incurred and adding to them a profit factor. In the very nature of things, the costs necessarily incurred by the proprietor in providing nursing home care in the nursing home are a fundamental matter for consideration.

However, the sub-section does not direct the Permanent Head to fix the scale of fees exclusively by reference to costs necessarily incurred and profit. The sub-section is so generally expressed that it is not possible to say that he is confined to these two considerations. The Permanent Head is entitled to have regard to other considerations which show, or tend to show, that a scale of fees arrived at by reference to costs necessarily incurred, with or without a profit factor, is excessive or unreasonable".

1. In the later judgment of the Federal Court involving the same parties Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 Deane J stated in respect of exercise of the discretion in the same matter:

"In a case such as the present, where relevant considerations are not specified, it is largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards."

1. I accept that the above principles apply, particularly to give guidance as to interpretation of those discretionary provisions that refer to one particular condition its exercise.

1. The purpose of section 29 of the Dog Control Act is to ensure protection of the public and other animals by ensuring that dangerous dogs are appropriately managed.

1. The Act also provides offences for dogs at large, attacking persons or animals and special provisions for dangerous dogs and restricted breed dogs. These are provisions to ensure public protection and management of this class of dog.

1. The requirements for keeping a dog declared dangerous are set out in the Act. The dog is required to be micro chipped and wear an approved collar at all times. When in a public place, the dog must be muzzled and on a lead held by a person of at least eighteen years of age. When not in a public place, a dangerous dog must be housed in a childproof enclosure or restrained by a lead. Every entrance to the enclosure must have an approved warning sign. At no time is a dangerous dog to be allowed off a lead in a public place, even if that public place is a dog exercise or training area: (sections 32-34D of the Dog Control Act).

1. I find that s29 by use of the word "may" does allow the General Manager to exercise discretion. That view is based upon the ordinary reading of the provision. I note that Magistrate Brett came to the same conclusion in Ayton v Turner [2010] TASSMC 17 dealing with this provision rejecting an argument on behalf of the General Manager that a declaration is mandatory once the preconditions of the section are satisfied.

1. What triggers the exercise of the discretion is the fact that the either the dog has caused serious injury to a person or another animal or there is reasonable cause to believe it is likely to do so. Once one of those preconditions is satisfied then the discretion is to be exercised judicially.

1. Using the principles extracted from decisions referred to above, I am of the view that the intention of the legislation is to give very significant weight in the discretion to the fact of the dog having caused the injury (and/or the likelihood of causing injury). It is well known that dogs can cause serious injury to other animals and persons, and such consequences can have far reaching effects. Parliament has chosen to set the ability to make the declaration only in cases of serious injury and not specifically articulating any other matters in the discretion.

1. However also in line with the authorities other matters can be taken into account. In the case where a dog has caused injury such matters as follows will be relevant:

• The nature of the attack causing the injury;
• The nature of the injury;
• The reasons for the attack, for e.g. provocation
• The nature and frequency of any previous attacks
• The general disposition of the dog;
• The degree of responsibility taken by the owner;
• The likelihood of any further attack;

1. In light of the intention of parliament exhibited in this section, the court must examine these matters very carefully in light of the fact in the discretion that the dog has already caused serious injury and might therefore have the capacity to do so again. However as submitted by Mr Griffiths, counsel for the applicant, the Act contemplates a balance approached to the management of dogs, and thus all relevant circumstances must be weighed into the discretion. I do not consider that the consequences to the dog of the declaration are matters to which, absent extraordinary circumstances, any weight should attach.

1. Taking into account all the relevant matters in the discretion upon the facts as I have accepted them, I am not satisfied that Dakota should be declared a dangerous dog.

1. The circumstances leading to him catching the cat were most unusual and unlikely to be repeated. I say this because:

(a) the applicants usual fencing to ensure his dogs were not at large was waiting to be installed, as the applicant had just moved house;

(b) the gate was opened allowing Dakota and the Labrador to be at large;

(c) the cat happened to be fleeing, thus causing the dogs to give chase;

(d) unusually Dakota was able to catch the cat;

1. The fencing now installed and now meets very strict requirements. Dakota is unable to escape even if someone opens the gate.

1. The contact with the cat was brief and appeared to involve Dakota taking hold of the cat in one single action but then leaving the cat. He then nuzzled the cat and returned to his home. Dakota's actions were consistent with him acting on the instinct possessed by all dogs when confronted by fleeing cats.

1. Dakota is 7 years old with no history of any similar incident or propensity to aggression. To the contrary the overwhelming evidence is that he is a well socialized, docile, friendly dog with a most responsible owner. His placid temperament was the subject of expert evidence.

1. I have considered the circumstances carefully with the purpose of the provision in mind. It is highly unlikely that such an unfortunate incident is likely to be repeated. I am not satisfied for the reasons given that Dakota should be declared a dangerous dog.

1. Further, I am not satisfied pursuant to section 29(1) (a) (ii) that there is reasonable cause to believe Dakota is likely to cause serious injury to a person or another animal.

1. I therefore order that pursuant to section 31 (2)(b) of the Dog Control Act the dangerous dog declaration made on 31 August 2011 in respect of Dakota be set aside.