//
[2022] SACAT 23
General information, not legal advice.
SA Civil and Administrative Tribunal
2022-02-07
Ms J, Mr P
Original judgment source is linked above.
Tester v District Council of Yankalilla [2022] SACAT 23
The applicant sought a review of a destruction order made by the District Council of Yankalilla ('Council') for a Maremma sheepdog called "Watchman" in relation to an attack in which the applicant's husband, Mr Tester, was bitten on both arms.
The applicant and Mr Tester gave evidence about their long history of dog ownership, that Watchman had been in their possession since 2017 and had not left the property, and that he had never been left alone at the property.
Held, setting aside destruction order, and substituting with a control (dangerous dog) order:
Administrative Review - Dog and Cat Management Act 1995 - Review a decision of a council or Board to issue a destruction order - Unduly dangerous - Prior Incidents, Characteristics of Premises, Characteristics of Owner
South Australian Civil & Administrative Tribunal Act 2013 ss 34, 37
Aldridge v Whyalla City Council [2020] SACAT 13
Clare & Gilbert Valleys Council v Crawford [2005] SADC 135
Hastwell v The City of Holdfast Bay [2014] SADC 132
Ivka v City of Charles Sturt [2019] SACAT 5
Kerr and Parker-Benton v City of Charles Sturt [2019] SACAT 10
Selvanera v City of West Torrens [2018] SACAT 10
1. This is an application for the review of an order made by the District Council of Yankalilla (the Council) on 20 July 2021 (the Destruction Order). The Destruction Order is for the destruction of a male desexed microchipped Maremma sheepdog aged 6-7 years called "Watchman" (Watchman). Watchman was seized by the respondent on 1 July 2021 and detained by the respondent at the RSPCA premises at Lonsdale.
2. The applicant, Mrs Tester, has sought a review of the Destruction Order. The application for review is made under s 72 of the Dog and Cat Management Act 1995 (the DCMA).
3. Section 72 of the DCMA provides that the Tribunal may conduct a review of a reviewable decision. Section 72(4) of the DCMA defines "reviewable decision" to include a decision of a Council to make an order under Part 5 Division 3 or 3A. A destruction order is made under s 50(2) DCMA. The Destruction Order is a reviewable order.
4. The application for the review is made under s 34 of the South Australian Civil and Administrative Tribunal Act 2013 (the SACAT Act). The Tribunal is required to reach the correct or preferable decision but in doing so must have appropriate regard to, and give appropriate weight to, the decision of the original decision-maker.
5. Accordingly the Tribunal is required to have regard to the evidence or material before the decision-maker but has a discretion to receive further evidence on review. By s 37(1) of the SACAT Act the Tribunal's decision on review is regarded as and given effect as a decision of the original decision maker.
6. The hearing proceeded on 15 and 22 December 2021 and the Tribunal did receive further evidence on review. It was not disputed that on 23 June 2021 Watchman did attack the applicant's husband, Mr Patrick Tester, while at the property (the attack). The circumstances of the attack and whether the attack would constitute an offence under the DCMA was in dispute.
7. I note by paragraph 9 of the applicant's Outline of Submissions, "It is acknowledged by the applicant that an attack occurred in which Mr Tester was bitten on both arms by Watchman." I further note by paragraph 31 of the applicant's Outline of Submissions, ''While acknowledging that the attack on Mr Tester was of a serious nature, the Testers are of the view that it was an isolated incident and out of character for Watchman."
8. The documentary evidence provided to the Tribunal was:
10. During the applicant's evidence she produced the piece of beading which she refers to in paragraph 64 of her affidavit. This beading was not formally tendered. Counsel for the respondent accepted that the beading was what was used by the applicant.
11. During Mr Tester's evidence he produced a sample of the wiring or netting he was using as part of his building of the kennels. This sample was not formally tendered. Counsel for the respondent accepted that the kennels and netting was appropriate and would be adequate.
12. The Tribunal received a Statement of Agreed Facts, the applicant's Outline of Submissions and the respondent Outline of Argument.
13. The Tribunal received a joint List of Authorities which was supplemented by the Decision of Deputy President Johns dated 21 December 2021 in the matter of Leyton v City of Playford Council.
14. I note during oral closing submissions by Counsel for the respondent the position was expressed of disregard of the comments made in relation to alcohol and arguing as it was expressed that it was not relevant. I accept such submission.
15. The question of ownership is the first issue in dispute between the parties.
16. By the Statement of Agreed Facts Watchman was registered to the applicant during the 2019/2020 and 2020/2021 financial years.
17. As the attack as referred to in paragraph 6 and 7 above occurred on 23 June 2021, at the time of the attack Watchman's registered owner was the applicant.
18. By the Statement of Agreed Facts Watchman was registered to Mr Tester during the 2018/2019 financial year.
19. Evidence was given by the applicant and her husband that they considered themselves as jointly owning Watchman. Evidence was given of the applicant registering Watchman through an on-line portal and it was only because of that Watchman was registered in her name only.
20. The dispute regarding ownership is part of the applicant's argument that Watchman did not attack a person in circumstances that would constitute an offence against the DCMA (referring to both s 51 and 44(2) of the DCMA) as Watchman did not attack "a person" but attacked "a person who owns or is responsible for the control of a dog." (s 44(2)).
22. The objects of the DCMA in s 3 include in (a) "to encourage responsible dog and cat ownership".
23. Who the owner is, is clear in my view by the words of s 5(1) of the DCMA "In proceedings for an offence against this Act, if it appears from a register under this Act or a corresponding law that a dog or cat was registered at or before the time of the alleged offence, the person in whose name the dog or cat was last registered in that register will be taken to have owned the dog or cat at the time of the alleged offence..."
25. Both the applicant and Mr Tester gave evidence of dogs of a variety of breeds that they had owned or had been in their care.
26. They also gave evidence of their involvement with the Maremma Association.
27. At the time of the attack there was Watchman and Ralph, both Maremmas at the property.
28. Earlier the applicant and Mr Tester had had Jake, a Maremma, for 10 years and fostered Noah, a Maremma, for 5-6 months.
29. The applicant gave evidence of her understanding of the Maremma breed and the differences with other breeds.
30. Both applicant and Mr Tester gave evidence of Watchman and Ralph being bonded and that there had not been any issues with Watchman and any other dog he came in contact with.
31. Both applicant and Mr Tester gave evidence of the separate housing of a horse and five sheep at the property and that Watchman did not have access to those fenced areas and that there had been no issue between Watchman and these other animals.
32. The property where Watchman was kept and where the applicant and Mr Tester lives is described in Statement of Agreed Facts 6, 7, 8, 9 and 10. By Fact 9,''Watchman has been in the possession of Mr and Mrs Tester since 2017 and has not left the Property until the Respondent removed Watchman on 1 July 2021". By Fact 10, '' There is no ability for the public to enter the Property without Mr and Mrs Tester providing access through a locked gate."
33. Both applicant and Mr Tester gave evidence of the fencing at the property and that there are a number of gates that can be locked at the property.
34. Both applicant and Mr Tester gave evidence of the limited number of persons that visited them and the longstanding practice of not letting Watchman or Ralph be alone. For attendance at the hearing before the Tribunal, their grandson Ben was at the property with Ralph.
35. Both applicant and Mr Tester gave evidence of the wish for Watchman to be returned to them, and in preparation or in the event that occurred, the building of an extensive fenced kennel and run area for both Watchman and Ralph. Similarly, the banning of the use of a mobile phone as both believed the trigger or provocation of the attack was Watchman hearing audio on Ben's phone a squeaking noise from newborn puppies.
36. At the time of the hearing a sliding gate was being constructed and, in this regard, I refer to paragraph 9 and 10 of the affidavit of Mr Tester and further the remote control for the sliding gate would only be in the possession of the applicant, Mr Tester and their grandson, Ben.
37. This sliding gate was also being installed in preparation of or in the event that Watchman was returned to the applicant and Mr Tester and for the purpose of further limiting who could come into the property and potential contact with Watchman.
38. Since the removal of Watchman to RSPCA Lonsdale the applicant has each week delivered for Watchman food so that he has his ''correct special diet". The applicant has not seen Watchman at these visits. The only time that the applicant that has been allowed to see Watchman is described in Ms Rosser's report dated 16 September 2021.
39. Both the applicant and Mr Tester expressed they were not worried or concerned about Watchman coming back to the property.
40. It is only Mr Tester who can give evidence of being in the kitchen with the applicant, their grandson Ben and Watchman when Ben's phone was being viewed and listened to of his newly born puppies and later (potential 3-4 minutes later) when Mr Tester was outside the house and near the deck. The applicant and Ben can give evidence of what occurred in the kitchen. The applicant can give evidence of going to her husband's aid and at a later point in time Ben can give evidence of going to his grandfather's aid.
41. The earlier events on 23 June 2021 are described in Ben Kranenburg's affidavit at paragraph 19 as " I had some new puppies back at my place, and so I showed Grandma and Grandpa the puppies. Watchman was sleeping at the time. When he heard the puppies making a noise, he pricked his ears up, and barked. It appeared to me to be nothing to be concerned about, even my dogs would do that."
42. Ben left the property. He states in paragraph 20 of his affidavit, "It was starting to get dark when I headed off. Probably about 15-20 minutes after I got home I got a call about what had happened so I rushed back, and jumped over the locked fence."
43. He continues in paragraph 21 of his affidavit, "I saw Watchman had been sectioned off. I ran to the deck of the house and saw Grandpa laying there. I assisted Grandma to call the ambulance, and then I tended to Grandpa to make sure he was ok."
44. He continues in paragraph 22 of his affidavit, "I observed that Grandpa was alert albeit in pain. I looked thoroughly all over his body to identify where he might be injured, and identified that he had been bitten on both arms. I applied pressure on the wounds. I looked to his legs, stomach, head and neck, and did not observe any further injuries."
45. Mr Tester had been cross examined regarding whether he sustained a wound to his neck in the attack given reference to the left neck in the Flinders Medical Centre notes (page 19 of the Book of Documents). He disputed that he did. Mr Tester gave evidence of skin cancers as a possible explanation. I accept Mt Tester's evidence as supported by his grandson that there was no injury to the neck in the attack and so find.
46. Both Mr and Mrs Tester gave evidence that Watchman reacted to hearing the noise that came from Ben's phone that was being held by Mr Tester at the time when all were in the kitchen. Both said Watchman knocked the phone out of Mr Tester's hand. Watchman had previously been laying to the right side of Mr Tester. Both Mr and Mrs Tester gave evidence that they had never played a video in front of Watchman like it before.
47. The applicant gave evidence that she did not know the phone would be playing a video with sound. She described the sound as a squeaking sound. Mr Tester agreed with that description.
48. Mr Tester gave evidence that Watchman on hearing the noise, jumped up, growled and knocked the phone from his hands.
49. The applicant in paragraph 55 of her affidavit said, "The puppies on the video made a squeaking noise. The noise alerted Watchman, and he growled, and knocked the phone from Patrick's hand."' Further in paragraph 56 of her affidavit, "I knew that Watchman had been upset from the noise and I wanted to put him outside to cool down." I find that Watchman's action at this time involved both Mr Tester and Ben's phone.
50. Both Mr and Mrs Tester gave evidence that Mrs Tester ordered Watchman "out" and Watchman was put out in the enclosed garden area by her and then she went back inside the house. I find that it was the applicant that removed Watchman from inside the house.
51. It is only Mr Tester who can give evidence of what happened then as it relates to Watchman and his interaction with Watchman. It is because of this I focus on his evidence.
52. Under examination Mr Tester gave evidence that after the applicant let Watchman out of the house and while she saw Ben out, he remained in the kitchen and thought he heard Watchman bang on the door like he did when he wanted to come in. Mr Tester then walked to the other side of the kitchen and by that time Watchman had gone to the other side of the deck. Mr Tester then opened the door and walked out to Watchman and said, 'do you want to come in?' and walked up to Watchman and took one step off the deck. At this time Watchman was standing on the edge of the driveway. Mr Tester continued to walk and thinks he took one step off and Watchman came up to him. Mr Tester patted Watchman on the head like he usually did, thought he then stepped back onto the deck and ruffled Watchman's head. It was then that Watchman growled and spun around. Watchman was growling. Mr Tester said he pushed his left hand out towards Watchman and Watchman still moved towards him. Mr Tester gave evidence he stepped back and he does not know how, but he fell over the edge of the deck. His evidence was he went down with Watchman who had grabbed hold of his right forearm. Watchman hung on while Mr Tester fell over backwards. Mr Tester's evidence was that Watchman was not chewing but holding on and would not let go. It was then that he yelled out to the applicant.
53. Further examination of Mr Tester clarified it was the left arm that he pushed out when Watchman growled and that Watchman grabbed his jumper, bit through the jumper.
54. Further examination of Mr Tester clarified he pushed with his right arm as he was falling and that was when Watchman grabbed the right arm. Mr Tester was not sure how he fell off the deck but did fall and ended up laying on his back and that Watchman in the fall came with him.
55. It was then that the applicant came with the beading and Mr Tester could remember the applicant moving the beading towards Watchman and telling Watchman to stop. Mr Tester could remember the applicant talking loudly on the phone (not Ben's phone).
56. Under cross examination Mr Tester was asked how many times Watchman bit his right forearm. Mr Tester was not sure but gave evidence there were four marks and thought Watchman may have released and bitten again. He also agreed with counsel that it could have been four teeth and one bite potentially. He remembered one bite to the left forearm.
57. Under cross examination Mr Tester was asked what the applicant was doing with the stick (the beading). He gave evidence he was not sure. He knew she was doing something with it. Whether it was hitting or pushing, he did not know but more likely pushing. He gave evidence the applicant was not shouting, and he was not screaming.
58. Under cross examination Mr Tester gave evidence of his belief that the trigger for the attack was the noise from the phone heard by Watchman in the kitchen and future precautions that could be undertaken to avoid that occurring again. The applicant had given evidence of that same belief.
59. Under cross examination Mr Tester gave evidence that he was not fearful of the dog or the dog behaving in a similar manner again. The applicant had given evidence of that same view.
60. Under cross examination Mr Tester gave evidence that he did not provoke Watchman.
61. At the end of cross-examination I asked Mr Tester certain questions including to clarify his earlier evidence in examination that he had "made a mistake". It was Mr Tester's evidence that with what had happened we (referring to himself and the applicant) both learned that he had made a mistake by not reading Watchman properly at the time.
62. Mr Tester gave evidence in response to my question that he should have left Watchman outside a bit longer as he knew the phone had upset him and that he had not picked up Watchman needed more time to himself. I refer back to paragraphs 35 and 48 above.
63. I also note the cross examination of Mr Tester where it was posed there was disconnect between the noise and the attack. This was disputed by Mr Tester who posed the question to counsel for the respondent that he, Mr Tester, if he got angry, he did not get over it in 3 or 4 minutes and considered counsel would not either.
64. Mr Tester was admitted to hospital after the attack on 23 June 2021 and his Flinders Medical Centre notes appear in the Book of Documents from page 18 to 26. He was discharged on 8 July 2021. By that time Watchman had been seized. Mr Tester has not seen Watchman since the attack as he has not been permitted to.
65. As stated in paragraph 4 above, the Tribunal must have regard to, and give appropriate weight to, the decision of the original decision maker. I refer to the Destruction Order on page 12 of the Book of Documents under the heading "Incident" and it is stated there, 'Mr Patrick Tester was watching a video of puppies on his grandson's phone, the dog, watchman, jumped up and knocked the phone out of his hand and growled. Mr Patrick Tester picked the phone up and handed back to grandson. Grandson then left, and Mr Patrick Tester placed Watchman outside." [my emphasis]. I refer to my finding in paragraph 50 above.
66. Further to the Destruction Order, and note the passage under the heading "Incident" continues, "After a short time, Watchman notified Mr Patrick Tester that he wanted to come back inside by 'banging against the door'. Mr Patrick Tester opened the door and walked outside to greet the dog by petting/ ruffling the dogs head. Watchman growl and snapped ... which was considered unusual behaviour for the dog...this action caused Mr Patrick Tester to push Watchman away to create some distance. Watchman turned on Mr Patrick Tester, biting him and knocking them to the ground and off the balcony. Watchman then continued to attack Mr Patrick Tester while he was on the ground. Mrs Heather Tester grabbed a piece of timber and began hitting Watchman in an attempt to stop the attack and get the dog off Mr Patrick Tester. Mrs Heather Tester then went to get a phone as the victim had pushed watchman off him. Mrs Heather Tester called for emergency services due to the severity of his wounds." [my emphasis].
67. The Destruction Order was signed by Andy Baker dated 20 July 2021. Mr Baker was not called to give evidence.
68. It was Mr Baker who signed on 8 July 2021 the Notice Of Intention To Make An Order as appearing on page 14-15 of the Book of Documents. Page 16 of the Book of Documents is the Council's document which says, "Evidence of injuries sustained-images taken when victim interviewed in hospital 8 July 2021." Photographs of Mr Tester appear on page 16 and 17 of the Book of Documents. Mr Tester's statement dated 6 July 2021 is on page 36-42 of the Book of Documents. There are differences in this statement to how the incident is described in the Destruction Order. There are differences with Mr Tester's evidence. A simple example is the house has no balcony and I refer to paragraph 66 above.
69. I give consideration to the content of the document of Mr Novak at page 66-68 of the Book of Documents where Mr Novak was writing the document for Mr Baker describing the attack on page 67. There it is stated, "The extent the dog escalated its behaviour from growl to snapping, to which to victim pushed it away, to biting, knocking the victim to the ground, before jumping on top of the victim to continue the attack, in addition to requiring the intervention of the owner to remove indicates a high escalation in aggression." [my emphasis].
70. I give consideration to the Statement of Reasons signed by Mr Barker on 3 August 2021 and as appearing on pages 8-11 of the Book of Documents. Paragraph 15.2 as appearing on page 10, in part is, "This action cause Mr Tester to push the Dog away to create some distance. The Dog then turned on Mr Tester, biting him and knocking him to the ground and off the balcony. The Dog then continued to attack Mr Tester while he was on the ground".
71. The details of the attack described in the Council's documents in paragraph 65, 66, 68, 69 and 70 are different. Some differences more significant than others.
72. Mr Tester was examined and cross examined about the events leading up to the attack and the attack itself. I refer to paragraphs 48, 50-63 above and in particular paragraph 54 and Mr Tester's evidence that was he fell backwards and Watchman fell with him. This is significantly different to, "knocking the victim to the ground, before jumping on top of the victim to continue the attack". [my emphasis] as referred to in paragraph 69.
73. On page 42 of the Book of Documents is Mr Tester's signature after the typed request, "Please re-read this document and if you agree it is a true and correct account of the incident, sign and date below.'' On page 38 a portion the attack is described as "Watchman turned and snapped at Mr Tester, Mr Tester then fell backwards and the dog then grabbed Mr Testers arms. Mr Tester pushed his arm into Watchman the dog, this resulted in Mr Tester being bitten on the right arm and left with right arm serious bite wound." There are differences again in the detail of the attack or time sequence of when an action happened.
74. I accept that the incident was a traumatic event for Mr Tester and that he signed his statement whilst in hospital. Some of the differences in detail in his statement and his evidence may be due that but this statement in my view is closer to Mr Tester's evidence to the Tribunal than Mr Noack's description on page 67 of the Book of Documents under the heading, ''in looking at the circumstances surrounding the attack" as referred to in paragraph 69 above. I also note the earlier passage in the same section, ''The ruffling (patting) of the dogs head as it came back inside was described as a usual activity....". [my emphasis]. It was Mr Tester's evidence that the ruffling occurred outside. It was Mr Tester's evidence that the attack occurred outside. It was outside where the applicant came to Mr Tester's aid and later it was outside where Ben came to Mr Tester's aid.
75. Mr Tester was cross examined about a report that while hospitalised he had told a nurse that he wanted Watchman destroyed. Mr Tester denied this.
76. The applicant was examined and cross examined about the events leading up to the attack and what she did when Mr Tester yelled out to her. The applicant was cross examined as to the accuracy of the statements that she provided to the original decision maker. One statement of the applicant is in the Book of Documents from page 28 to 34. On page 34 it is stated, ''Thank you for answering these questions. You will be notified of any further involvement that may be required of you. Please re-read this document and if you agree it is a true and correct account of the incident, sign and date below.'' The applicant's signature then appears. Yet in her evidence she did dispute the accuracy of the statement and the words used in it. The respondent's dog attack statement document which contains handwritten sections commences at page 28 that concludes on page 34 of the Book of Documents, is the applicant's statement. On page 30 and 31 a "plank of wood" is referred to. I refer to paragraph 10 above. Beading and a plank of wood are descriptions that would lead to a reasonable assumption of two different types of wooden objects with different weight or strength of the object the applicant was using. Different words used can lead to different meanings or assumptions or details. The applicant in cross examination denied the use of the descriptor, a "plank of wood". I accept that the incident was a traumatic event for the applicant but she did sign the statements which were provided to the Council.
77. I have highlighted only some differences in various statements regarding the lead up to the attack and the attack itself. I find that there was an attack. That has been admitted. I find that injuries were sustained. That has been admitted.
78. The lead up to the attack and the attack itself is relevant to my consideration of whether I can find I am satisfied on the balance of probability that Watchman was an unduly dangerous dog at the time of the attack. It is also relevant to my consideration of the weight I give to the decision of the original decision maker. The original decision maker had before it statements of both the applicant and Mr Tester which in evidence they now dispute as representing ''a true and correct account". In addition, as I noted in paragraph 71 the details of the attack in paragraph 65, 66, 68, 69 and 70 are different. These paragraphs refer to the original decision maker's documents.
79. The applicant gave evidence that she believed she had no cause for any concern of her being alone with Watchman (and Ralph) after the attack on 23 June 2021. The applicant had been living on the property by herself from 23 June to 1 July 2021.
80. It is only the applicant who gave evidence of the removal of Watchman on 1 July 2021, and I accept her evidence.
82. I note Statement of Agreed Facts 17_, "Watchman showed no aggression when being picked up at the Property, including showing no aggression when the Respondents' inspectors patted Watchman_."
83. I also note Statement of Agreed Facts 18_, "Watchman did not show aggression when he was offloaded and impounded at the council hold_."
84. Further, I also note Statement of Agreed Facts 19_, "Watchman was handed over to the RSPCA at this time and came up to General Inspector for the Respondent, Dion van Nunen, wanting a pat_."
85. Ms Rosser gave evidence for the applicant. Her expertise was accepted by counsel for the respondent. Her behaviour report dated 16 September 2021 sets out her background in paragraphs 1 to 6. By paragraph 7, on 8 September 2021 Ms Rosser conducted a behavioural assessment as requested jointly by the applicant and the respondent. During this assessment Mr Dion van Nunen from the respondent was present and after the assessment was completed Mr van Nunen and Ms Rosser observed the applicant interacting with Watchman.
86. Ms Rosser behaviour report dated 16 September 2021 noted in paragraph 14 of her report that Watchman had not left the property and had not attended any training classes with Mr and Mrs Tester.
87. Paragraph 15 of her report was, "Mrs Tester also provided me with a printed e-book regarding Maremma sheepdogs which I read, but which has not been relevant to my report. Apart from some general background which is not relevant to this report, the book contains some outdated and inaccurate information, and is not useful in relation to canine psychology generally, or Maremma sheep dogs in particular. I have not relied on the book at all."
88. Paragraph 29 of her report is one paragraph of 7 paragraphs setting out a summary of canine behaviour indications. Paragraph 29 relates to fiddle behaviours or displacement behaviour. Part of paragraph 29 is, "When an animal is fiddling it is in a moderately high state of arousal and anxiety. Fiddling is often seen first before an animal escalates to a zone of fear/panic and deploys one of the other strategies of flight, fight or freeze. Fiddling can be a warning sign prior to impending aggression. If we do not recognise a dog's distress at the fiddle stage and alter our interaction, it may then switch to aggression. Fiddling is often completely missed, overlooked or misinterpreted by people if they are not familiar with or trained to read dog body language. But once aware of it, it becomes obvious."
89. Such an opinion is considered by me in light of Mr Tester's evidence in paragraph 60-63. Ms Rosser gave evidence to the Tribunal before Mr Tester.
90. Ms Rosser expressed her opinion in her report and cross examination that all dogs pose a risk and with respect to Watchman if "carefully managed he poses no more than a moderate risk to the Testers."
91. Ms Rosser expressed her opinion in her report and in evidence of the risk being reduced if the Testers undertake an approved training course with such course to "educate the Testers on canine behaviour and how to manage and train Watchman. Giving the Testers the tools they need to manage Watchman will reduce the risk to them (or others) in the future." This training is separate to muzzle training which was also subject to her evidence. I note paragraph 47 of her report, "Training Watchman to wear a muzzle when interacting with Mr and Mrs Tester is possible and will also lower the risk of another incident, even if all the other measures I have recommended were to fail."
92. Other recommendations in addition to the approved training courses were that Watchman be carefully and strictly managed, use of a secure enclosure, be assessed by a registered veterinarian to diagnose and treat any potential medical issues around matting of Watchman's fur, hip stiffness and a possible ear infection and an assessment from a veterinary behaviourist.
93. Ms Rosser in cross examination expressed that she did not have enough information regarding the attack to be able to say whether it was provoked or not or predictable or not. Ms Rosser did not have the benefit of the applicant's affidavit or her evidence or Mr Tester's affidavit or his evidence or Ben's affidavit.
94. Ms Rosser in cross examination expressed her opinion that the attack was severe, that Watchman was a dangerous dog but not an unduly dangerous dog as defined in the DCMA.
95. Ms Rosser was further examined as to why she did not think Watchman was an unduly dangerous dog. Her evidence was because he was 6 years old and he had had one incident.
96. Ms Rosser was further examined as to what she defined an unduly dangerous dog as. Her evidence was a dog that had multiple incidents.
97. I note in the matter of Hastwell v The City of Holdfast Bay [2014] SADC 132 there were two attacks by the dog in question.
98. I note in Aldridge v Whyalla City Council [2020] SACAT13 it related to three dogs together in what was described as a "pack attack".
99. The weight I give to the decision of the original decision maker is negatively affected by my finding that Mr Tester is an honest witness and that I accept the evidence of Mr Tester regarding the lead up to the attack and the attack itself described in paragraphs 52-57 above and so find.
100. As a consequence I do not find that the lead up to the attack and the attack itself is as described in the respondent's documents. Unfortunately, the original decision maker relied on statements of both the applicant and Mr Tester that they each now dispute as accurate. I have had the advantage of hearing the oral evidence of the applicant, Mr Tester and Ms Rosser together with additional written documentation that was not before the Council when the Destruction Order was made. The original decision maker did not have that advantage.
101. Further I also note on page 67 of the Book of Documents under the heading 'In looking at the circumstances surrounding the attack', the following is stated, ''The son in law informally indicated that the dog had previously bitten the Victim but not to this extent." I give no weight to this recording of an informal indication from someone who did not give evidence or give a formal affidavit or declaration.
102. I find on the evidence of Mr Tester that it was Ralph (another Maremma sheepdog) not Watchman, that Mr Tester removed a stick from his mouth when the stick Ralph had been chewing got stuck at the very back of his mouth, not Watchman.
103. I find on the evidence that Watchman had bitten one person, Mr Tester, and this was on 23 June 2021 and at no other time.
104. In addition to the finding in paragraph 24 above, I also find Mr Tester is "a person" for the purposes of s 44(2) of the DCMA. I find the applicant has committed an offence under that section as Watchman did on 23 June 2021 attack Mr Tester.
105. I note Statement of Agreed Facts 20_, "The Respondent is satisfied that the attack was not the result of a failure by the Applicant to take reasonable steps to avoid the occurrence of the events."_
106. I make findings consistent with the Statement of Agreed Facts.
107. I accept the evidence of the applicant and Mr Tester that Watchman reacted to the noise from Ben's phone and so find.
108. I accept the evidence of the applicant and Mr Tester that this was the trigger or provocation for the attack and so find.
109. I accept Mr Tester's evidence that between the time of the trigger and the attack Mr Tester did act in a way in which a person may reasonably be expected to act in the circumstances of not identifying that a provocation had occurred, and he continued to interact with Watchman as he normally would. That does not in my view make it an unprovoked attack. I find this was a provoked attack.
110. I have had regard Dog and Cat Management Board Incident Severity Scale Guideline which on its face clearly states it is a guideline and there is the need to have regard to the relevant circumstances of each case. I have considered the relevant circumstances of this case and the circumstances as outlined in the authorities relied on by both counsel.
111. The facts of the matter before the Tribunal can be distinguished from the authorities referred to in the Joint List of Authorities as it relates to the number of prior attacks, number of dogs involved in the attack but also who was attacked, namely a person Watchman was familiar with and had lived with since 2017 without any prior incident, and also where the attack occurred, namely, adjacent to the house on the property where Watchman lived with that property being remote and with various gates and fences that limited members of the public ability to access the property.
112. I note paragraphs 13-15 in Selvanera v City of West Torrens [2018] SACAT 14 the ability for this Tribunal to have regard to District Court decisions prior to July 2020. In this regard I also rely on Ivka v City of Charles Sturt [2019] SACAT 5, Kerr and Parker-Benton v City of Charles Sturt [2019] SACAT 10 and Clare & Gilbert Valleys Council v Crawford [2005] SADC 135.
113. I do take guidance, as was taken in Aldridge v Whyalla City Council, of passages in Clare & Gilbert Valleys Council v Crawford commencing at paragraph 69 and proceeding to paragraph 79 that includes the discussion of the distinction between "dangerous dog" and ''unduly dangerous dog" being terms defined in the DCMA.
114. The District Court in Clare & Gilbert Valleys Council v Crawford considered risk in paragraphs 74-79_, " In order to pose a greater danger than a dangerous dog, to an extent warranting destruction, the dog must, at least, expose the public, or other animals, to an appreciable risk of serious harm. In the case of people, there must be an appreciable risk of serious harm to any person acting in a way in which a person may reasonably be expected to act in circumstances which may be reasonably expected to occur._
To my mind, however, the presence of such a risk is not necessarily decisive. Consideration must also be given to the type of situation in which the dog is disposed to present such a danger. A dog may be so ferocious that it presents a risk of serious harm to anyone who has the misfortune to come across it and in any situation that may reasonably be expected to occur. On the other hand a dog of ordinarily mild disposition might present a danger in such limited circumstances that it may be fair and reasonable to address the difficulties that the dog presents by measures other than destruction.
In that regard it is relevant to note that a requirement of a Control Dangerous Dog Order is that the dog and the person responsible for its control complete an approved training course. To my mind that suggests that a factor to consider in determining whether a dog is unduly dangerous or merely dangerous is whether its dangerous propensity could be addressed by appropriate training. Such an approach is consistent with the Act's stated objectives of encouraging responsible dog ownership and promoting the effective management of dogs with the public interest in mind." [my emphasis]
115. Having considered all of the evidence including the opinion expressed by Ms Rosser, the findings that I have made on the evidence in particular the findings regarding the lead up to the attack and the attack itself, the content of the Statement of Agreed Facts and the consideration of what an "unduly dangerous dog " is by the District Court Clare & Gilbert Valleys Council v Crawford , I am satisfied that Watchman is a dangerous dog but not an unduly dangerous dog. I consider that the preferable order on review is a Control (Dangerous Dog) order.
116. Even if my finding had been Watchman was an unduly dangerous dog, I would adopt the finding in paragraph 118 in Aldridge v Whyalla City Council to the matter now before the Tribunal that ''A finding that a dog is unduly dangerous is not the equivalent to a finding that the dog should be destroyed. The judgment that a dog is unduly dangerous implies a degree of risk that prima facie justifies destruction, but it does not necessarily mean that a destruction order must be made." I am not satisfied that Watchman poses such a degree of risk.
117. I adopt the passage I emphasized above in paragraph 114 from District Court in Clare & Gilbert Valleys Council v Crawford and set aside the Destruction order and substitute a Control (Dangerous Dog) order under s 50 of the DCMA.
118. In doing so I find that the location of the property, the fencing around and through the property, the various lockable gates, the use of remote control on the sliding gate and the limited number of remote controls together with the extensive fenced kennel and run area all limit members of the public access to where on the property Watchman may be at the relevant time and as a consequence the risk to members of the public is low.
119. Further, I find that the applicant is a responsible dog owner. I am satisfied that if Mr Tester was the owner of Watchman I would also be satisfied he was a responsible dog owner. That responsibility has been shown since the attack by the building of the kennels and run and the adding of the gate at the end of the driveway via remote control. I note the applicant's evidence in examination that she will comply with any additional requirements and her further evidence in re-examination, including training and recommendations about when and in what circumstances Watchman should be in the kennel fenced off area. I accept there remains a risk to the applicant and for Mr Tester and for them to on an ongoing basis manage Watchman effectively. I am satisfied with the successful completion of the recommended training by Ms Rosser of the applicant, Mr Tester and Watchman, the applicant will be equipped to responsibly manage a dangerous dog as defined.
120. Part of a Control (Dangerous Dog) order under s 50(3)(c) and (e) assumes the dog is interacting with members of the public and the focus is the protection of the public. This is not the situation with Watchman. Interaction with members of the public has before the attack been limited and will further be limited. Protection of the applicant, Mr Tester and Ben should be the focus with Watchman.
121. I make the following comments in the context of a Control (Dangerous Dog) order under s 50 of the DCMA but also in the context of Watchman's unique environment and I do so as a guide. My order is for the making of a Control (Dangerous Dog) order as set out in the DCMA.
122. It is on that basis the kennel and run and enclosure under construction being these proceedings, if not already completed, be completed and fully secured at the earliest opportunity.
123. Further to s 50(3)(c) and (e) and by way of a guide, the applicant must ensure that Watchman is kept in the fully secured kennel and run until the successful completion of the training courses outlined above or for such longer or shorter time as may be in the opinion of the approved trainer but may be permitted outside the fully secured kennel and run during the approved training by the approved trainer if appropriate as part of the training.
124. In addition and further to s 50(3)(c) and (e) and by way of a guide, the applicant must ensure that the fully secured kennel and run is properly maintained so as to prevent Watchman escaping from the fully secured kennel and run.
125. Further to s 50(3)(e) as it relates to the wearing of a muzzle, again where interaction with members of the public has before the attack been limited and will further be limited, the protection of the applicant, Mr Tester and Ben should be the focus with Watchman, and as a guide, I say the applicant must ensure that Watchman, when interacting with the applicant, Mr Tester or any other person, Watchman wears a muzzle securely fixed on his mouth capable of preventing him from biting an person or animal and to be under the effective control of a person by means of physical restraint.
126. The applicant must also ensure that all fences and gates on the property are properly maintained so as to prevent Watchman escaping from the property and that further to s 50(3)(f) warning signs (complying with the requirements of the Board) to be prominently displayed at all entrances to the property warning people that a dangerous dog is kept on the property.
127. Part of a Control (Dangerous Dog) order under s 50(3)(g) are approved training courses and as a guide in this regard and in reliance on Ms Rosser's expertise I note her evidence regarding two different types of training, namely that the applicant, Mr Tester and Watchman undertake and successfully complete a training course approved for the time being by the Dog and Cat Management Board for the purposes of s 50 of the DCMA with such course including canine behaviour and how to manage and train Watchman for the purpose of reducing any risk to the applicant and Mr Tester (or others) in the future. And in addition, the applicant, Mr Tester and Watchman undertake and successfully complete a training course approved for the time being by the Dog and Cat Management Board (Board) for the purposes of s 50 of the DCMA with such course focussed on the fitting and use of a muzzle and means of physical restraint. Such training could occur at the same time as the training as the training first referred to or independently of the same.
128. Further to s 50(3) (h) and by way of a guide, the applicant take all reasonable steps to be taken to prevent Watchman from attacking, harassing or chasing a person or animal or similar behaviour should include Watchman to be assessed by a registered veterinarian to diagnose and treat any potential medical issues around matting of Watchman's fur, hip stiffness and a possible ear infection as is necessary but at least annually and for there to be an assessment from a veterinary behaviourist.
1. The Destruction Order of the respondent dated 20 July 2021 for the destruction of the dog, Watchman, is set aside and, in its place, the Tribunal substitutes a Control (Dangerous Dog) order under s 50 of the DCMA in respect of the applicant's dog known as Watchman (the dog).
2. I set out the terms of the Control (Dangerous Dog) order under s 50 of the DCMA, in respect of the dog that is subject to these review proceedings, which requires-
(a) if the dog has not been desexed - the dog to be desexed within the period specified in the order; and
(b) if the dog has not been microchipped - the dog to be microchipped within the period specified in the order; and
(c) the dog, while on premises of which the person who is responsible for the control of the dog is the occupier, to be kept indoors or for the premises to be fenced so as to prevent the dog escaping from the premises; and
(d) the dog, at all times, to wear a collar that complies with the requirements of the Board (except while the dog is suffering from injury, disease or sickness to the extent that the wearing of a collar would be injurious to the health of the dog); and
(e) the dog, except while confined to premises of which the person who is responsible for the control of the dog is the occupier-
(i) to have a muzzle securely fixed on its mouth capable of preventing it from biting any person or animal; and
(ii) to be under the effective control of a person by means of physical restraint; and
(f) warning signs (complying with the requirements of the Board) to be prominently displayed at all entrances to premises where the dog is usually kept warning people that a dangerous dog is kept on the premises; and
(g) the dog or the person or both to undertake such approved training courses as may be specified in the order; and
(h) all reasonable steps to be taken to prevent the dog repeating the behaviour that gave rise to the order.
3. The decision as varied is to be regarded as having effect from the date of this order.
Tester
District Council of Yankalilla [2022] SACAT 23