ACT CIVIL & ADMINISTRATIVE TRIBUNAL

HILL v REGISTRAR, DOMESTIC ANIMAL SERVICES (Administrative Review) [2017] ACAT 30

AT 73/2016

Catchwords: ADMINISTRATIVE REVIEW – dangerous dog licence – whether the applicant’s premises are suitable for keeping a dangerous dog – potential impact on neighbours – likelihood of harm to members of the public or animals – whether the applicant is a reliable owner of a dangerous dog

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 68Domestic Animals Act 2000 ss 25, 27, 36

Cases cited: Bugter v Mooranbool Shire Council [2011] VCAT 1833Goldstraw v Registrar, Domestic Animals Services & Ors [2016] ACAT 86Gubbins v Wyndham City Council [2004] VSC 238Robertson v DAS (unreported, 20 August 2009)Sarlija & Registrar, Domestic Animal Services [2012] ACAT 57Sarlija & Registrar, Domestic Animal Services [2012] ACAT 62

Tribunal: Senior Member J Lennard

Date of Orders: 24 April 2017Date of Reasons for Decision: 24 April 2017

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AUSTRALIAN CAPITAL TERRITORY )CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 73/2016

BETWEEN:

PETER HILLApplicant

AND:

REGISTRAR, DOMESTIC ANIMAL SERVICESRespondent

TRIBUNAL: Senior Member J Lennard

DATE: 24 April 2017

ORDER

The Tribunal orders that:

1. The decision to refuse a dangerous dog licence is confirmed.

………………………………..President G Neate AM

Delivered for and on behalf of the Tribunal

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REASONS FOR DECISION

The application1. On 28 November 2015 Mr Peter Hill (the applicant) made an application

pursuant to the Domestic Animals Act 2000 (the DA Act) to keep a dangerous

dog. On 24 October 2016 the Registrar, Domestic Animal Services (DAS)

refused that application and refused to issue a dangerous dog licence to the

applicant. The decision to refuse to issue a dangerous dog licence is a

reviewable decision.

2. This matter is an application by Peter Hill for review of the decision of DAS

refusing to grant him a dangerous dog licence.

Jurisdiction of ACAT3. Section 68 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT

Act) provides that in relation to a review of an administrative decision:

68 Review of decisions

(1) This section applies if the tribunal reviews a decision by an entity.

(2) The tribunal may exercise any function given by an Act to the entity for making the decision.

(3) The tribunal must, by order—

(a) confirm the decision; or

(b) vary the decision; or

(c) set aside the decision and—

(i) make a substitute decision; or

(ii) remit the matter that is the subject of the decision for reconsideration by the decision-maker in accordance with any direction or recommendation of the tribunal.

Relevant legislation4. The Tribunal notes that the preconditions for application for a licence and

consideration of that application as set out in section 25(3),(4) & (5) have been

satisfied. In reviewing the decision to refuse the licence ACAT must take into

account and give appropriate weight to the factors set out in section 25(2) of the

DA Act:

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(a) the size and nature of the premises where the applicant intends to keep the dog;

(b) the security of the premises;

(c) the suitability of facilities for keeping the dog on the premises;

(d) the potential impact on the occupiers of neighbouring premises;

(e) any conviction or finding of guilty of the applicant within the last 10 years for an offence against a law of a Territory or State relating to the welfare, keeping or control of an animal;

(f) the likelihood of harm being caused to any member of the public or an animal.

Background and findings of material facts5. The applicant is the owner of Chopper, an English bull mastiff dog, who is now

about 11 ½ years old. The applicant has cared for Chopper since Chopper was

six weeks old.

6. There was an attack by Chopper upon a 71-year-old man at the Aboriginal Tent

Embassy on 22 January 2014. Following that incident:

(a) Chopper was impounded by Domestic Animal Services (ACT); and

(b) on 4 November 2014 the applicant was convicted of an offence of being

the keeper of a dog that has attacked a person. The ACT Magistrates

Court declared Chopper to be a dangerous dog and ordered the dog and its

keeper to complete an approved course in behavioural or socialisation

training for the dog. The applicant was sentenced to three months’

imprisonment, that sentence was suspended and the applicant was released

on a good behaviour order. In addition the applicant was fined $500.

7. On 10 December 2014 DAS wrote to the applicant and informed him that as

Chopper had been declared a dangerous dog, he was required to apply for a

licence to keep Chopper in the ACT. The letter included a two-page information

sheet headed ‘Obligations of the Keeper of a Dangerous Dog’ and an

‘Application to Keep a Dangerous Dog’. On 12 December 2014 the applicant

completed the ‘Application to Keep a Dangerous Dog’ and gave his address as a

residence in Queanbeyan, NSW.

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8. On 10 April 2015 the Queanbeyan City Council issued to the applicant a

‘Notice of Intention to Declare a Dog to be a Dangerous Dog’ in relation to

Chopper. That notice included information as follows:

What must you do immediately?

Under section 36 of the Act, you must comply with all of the following requirements from the date you receive this notice. You must:

1. Ensure that at all times when the dog is away from the property where it is ordinarily kept:

a) it is under the effective control of some competent person by means of an adequate chain, cord or leash.

b) it has a muzzle securely fixed on its mouth that will prevent it from biting any person or animal.

Note: A dog is not considered to be under ‘effective control’ if a person has two dogs, one of which is the dog the subject of this proposed declaration, under his or her control at the one time.

2. Register the dog (if it is not already registered) within seven days after receiving this notice. The dog must be micro-chipped before you can register it.

9. On 20 April 2015 DAS wrote to the applicant informing him that his application

to hold a dangerous dog licence made on 12 December 2014 had been approved,

subject to the following conditions:

Formal notification from the relevant authorities in NSW that they recognise, in accordance with section 34(1)(b) of the Companion Animals Act 1998 (NSW), the declaration that Chopper is a dangerous dog, as made under section 50(5) of the Domestic Animals Act 2000 (ACT).

10. The letter also noted that the above condition was in addition to the standard

conditions as outlined in section 27 of the Domestic Animals Act 2000. That

section provides as follows:

27 Dangerous dogs in public places

(1) A carer must not, without reasonable excuse, be in a public place with a dangerous dog unless it is wearing a muzzle.

Maximum penalty: 10 penalty units.

(2) A keeper of a dangerous dog must not, without reasonable excuse, allow the dog to be in a public place without the keeper or someone else who is in charge of the dog.

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11. The reasons statement dated 24 October 2016 and provided to Mr Hill with the

decision to refuse the dangerous dog licence made it clear that since Mr Hill had

indicated on his application that he resided in NSW the ACT authority had not

made any investigation or assessment of the suitability or security of the

premises in Garran or of the facilities for housing the dog. The reasons

statement did note that the likelihood of Chopper causing future harm to any

member of the public or an animal is considered high.

12. On 27 April 2015 the Queanbeyan City Council made a ‘Dangerous Dog

Declaration’ in relation to Chopper. That declaration included information on

identical terms to those outlined in paragraph 8 above.

13. On the evidence before me I am satisfied that at the time of making the first

application in the ACT for a dangerous dog licence, the applicant was residing

in Queanbeyan, NSW. I am further satisfied that the purpose of the granting of a

dangerous dog licence in the ACT was to allow Chopper to be transferred from

the ACT to Queanbeyan. There was no evidence before me, to indicate that the

applicant had informed the ACT authorities that he intended to move to the

ACT as his principal place of residence.

14. Between 28 and 30 April 2015 Chopper was released from the DAS pound. At

that time the applicant was residing in NSW.

15. At some time prior to May 2015 the applicant acquired a second dog –

Champion.

16. On or about 20 June 2015 the applicant registered Chopper in NSW. There is no

evidence before the Tribunal that either Chopper or Champion was ever

registered in the ACT.

17. The applicant moved back to the ACT and now resides at an address in Garran.

The evidence before the Tribunal was not clear and the applicant could only say

that he moved into the ACT at some time between May and September 2015.

18. I am satisfied on the evidence before me that both Chopper and Champion

resided with the applicant at his home in Garran from the time the applicant

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took up permanent residence in the ACT until Chopper was seized by DAS in

May 2016.

19. On or about 6:15pm on 10 September 2015 an incident occurred on Curlewis

Crescent, Garran. I am satisfied on the evidence before me that Chopper was

involved in this incident. The applicant did not deny that Chopper was involved

in this incident. The evidence before the Tribunal is otherwise not certain. I

summarise below the evidence regarding this incident as provided by both the

applicant and the respondent who relied upon the evidence of the owner of the

other dogs involved in the incident as set out in her written statement dated

25 February 2016.

20. Ms Nicky Symon, the owner of the dogs Tipper and Mowgli – 3½ year old

Cavalier King Charles spaniels stated that she was walking down the path with

her two dogs on a joint lead and turned onto the grassed area that leads to the

Garran ovals. She stated:

...as I turned the corner a very large brown bull mastiff (possibly) attacked Tipper. Tipper was grabbed by the neck and was viciously flung around. Mowgli was still attached to the same lead which I was holding onto.

The person (I presume owner) of the dog [sic] had a boy of about 10 with him and he also had a second dog that was very similar; however, smaller. This dog did not participate in the attack and I think was on a lead that the boy was holding. The larger dog which attacked was on a lead which was held by the man (who I think was wearing a beanie). He was unable to hold the dog back and was being dragged along while the offending dog had Tipper in his mouth. I did not hear any names mentioned the only comments I remember was when the man said “I told you not to come near me” and he kept telling the boy to hit the dog with a stick.

Eventually the dog released Tipper and the man, the boy and the two dogs disappeared along the grassed area towards Gilmore Crescent without saying a word. It was quite dark by this stage and Tipper was limp and not moving and my focus was on my dogs and their well-being. Eventually Tipper came to we slowly walked home (about 200 m). He didn’t seem to have any obvious injuries, although he was certainly not himself and appeared to be in shock.

21. Two days later, when Tipper appeared to be quite unwell Ms Symon took him

to the local veterinary surgery. The respondent provided photocopies of injuries

to the dog Tipper, an invoice from veterinary surgeons for services provided to

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Tipper on 17 September 2015 and a letter from the attending veterinarian which

stated that Tipper’s wounds were consistent with a dog bite and shaking injury

with some mild skin necrosis and infected puncture wounds as well as extensive

subcutaneous swelling and cellulitis.

22. Ms Symon also stated:

Since the attack, I have seen the man walking with the larger dog. He was walking back from the grassed area leading to the Garran oval and primary school and crossing the road on Gilmore Crescent just near the Garran shops. The dog was on a lead and the man was wearing a beanie. Again, the dog was not muzzled;I have also seen the big dog tied up at the Garran shops on at least two occasions. Each time the man was not with the dog and the dog was not muzzled.

23. Mr Hill provided a statement of facts and contentions, a written reply and oral

evidence relating to this incident. His statement of facts and contentions states

as follows:

On Thursday 10 September 2015 at around 6.15 pm I took Chopper for a walk in the evening. I preferred to take Chopper for walks at this time or early in the morning to avoid coming into contact with other dogs or children. On this occasion I was accompanied by a 12 year old boy whom I was mentoring through my church. My companion was walking Champion. Both dogs were on a lead. On our walk we came across a woman who had several dogs with her. There may have even been three dogs. The woman was on her mobile phone and seemed distracted. I asked her to go around our dogs. One of the woman’s dogs came rushing towards Chopper and Champion and seemed to bite Chopper on the nose. Chopper responded by causing the dog to back away. The dog did not seem to be injured or affected. He seemed to be ok and kept walking so we moved on.

24. In his oral evidence Mr Hill stated that Ms Symon’s dogs were not on leads. He

agreed that the dogs in photos attached to Ms Symon’s evidence “looked

similar” to those he had encountered. Mr Hill asserted in oral evidence that

Chopper was muzzled. Mr Hill denied that he warned Ms Symon to “keep

away” or “go around” because he was afraid of Chopper’s reaction to

encountering other dogs. He further denied that he walked Chopper at times he

was not likely to encounter children or other animals because he was concerned

that Chopper might attack them.

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25. On the evidence before me I cannot determine what happened in the incident on

10 September 2016. I do, however, note that Mr Hill’s evidence was not

consistent, and he gave no satisfactory explanation for why he warned off

Ms Symon or why he walks the dogs at times he is likely to avoid other animals

and children.

26. Mr Hill moved to his current residence in Garran ACT sometime between May

and September of 2015. Based on the evidence before me I am satisfied as to the

following facts:

(a) Neither Chopper nor Champion was registered in the ACT.

(b) Mr Hill took no positive action to inform DAS that he was now residing in

the ACT.

(c) Mr Hill was not certain as to the status of the dangerous dog licence

granted to him by DAS on 20 April 2015. The evidence of Mr Hill in his

written material and his oral evidence was confused and contradictory. On

the one hand he stated that he believed he was bound by the NSW

dangerous dog declaration and asserted that he had complied with the

conditions imposed by Queanbeyan City Council. On the other hand he

asserted that he believed he had a valid ACT dangerous dog licence and

that he made every endeavour to comply with the conditions of that

licence. As noted above the condition and restrictions imposed upon the

keeper of a dangerous dog are not dissimilar in either jurisdiction.

However, the ACT authority had made no inspection of or assessment of

the premises and facilities for keeping of the dog and so in that sense the

conditions could be seen as ‘incomplete’. There is no evidence before me

to indicate that the applicant turned his mind to the licence conditions or

sought to clarify the conditions of the licence once he took up residence in

the ACT.

(d) On more than one occasion the applicant has walked Chopper in a public

place without a muzzle.

(e) On the day that Chopper was seized by DAS the evidence of Mr Harrold,

Senior Ranger, DAS in his statement was: “Peter Hill did not have the dog

muzzled. The dog did not have a dangerous dog collar on and he was

walking another dog at the same time as Chopper.”

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(f) Mr Hill’s written statement was: “I purchased a muzzle for Chopper

which I tried to put on him whenever we went out. It didn’t fit well so on

occasions I had to remove it as it seemed to be hurting Chopper to wear

it.”

(g) Mr Hill conceded in his oral evidence that he had on ‘one or two’

occasions forgotten to put the muzzle on Chopper before taking him for a

walk. I note that Mr Hill’s evidence was not consistent and that he

contradicted his own evidence.

(h) On at least one occasion Mr Hill has left Chopper unattended and not

muzzled in a public place, being the Garran shops. On 21 April 2016 DAS

received a complaint and a photograph from a store owner at the Garran

shops alleging Mr Hill continually leaves Chopper tied up and unattended

and without a muzzle while he does his shopping. I note that this is a busy

suburban shopping centre with a supermarket, several cafes and a medical

centre in close proximity to the area was Chopper was left. Mr Hill said he

only did this once and that was before he knew that you could not tie up a

dangerous dog at the shopping centre. The respondent provided in

evidence a photograph taken by a member of the public which showed a

dog tied up at the Garran shops: the dog was not muzzled and was

unattended. Mr Hill conceded that the dog in the photo was Chopper and

that it was left unattended, but submitted that the photo was not clear and

that Chopper was muzzled. At the commencement of the hearing on the

next day, Mr Hill sought to retract his evidence that the dog was Chopper.

I am satisfied on the evidence before me, which includes the applicant’s

ready concession that the dog in the photo was Chopper, that the photo

was taken sometime soon before 21 April 2016 and shows Chopper left

unattended at the Garran shops. If I am wrong in this conclusion it is

noted that it is not denied by the applicant that he did on at least one

occasion leave Chopper not muzzled and unattended at the Garran shops.

(i) The applicant has not undertaken the approved course in behavioural or

socialisation training for the dog as ordered by the ACT Magistrates Court

in 2014.

(j) Chopper is a dominant dog. The evidence of Mr Sean Ehlers, an

experienced dog trainer behaviourist was that Chopper was well socialised

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with other dogs, did not show overt aggression, but did display dominant

tendencies. He concluded that Chopper has the potential to show

aggression if put in a situation that he believed required an aggressive

response. A dog with Chopper’s behavioural traits would require an

experienced, responsible and dominant handler to maintain control.

Mr Ehlers expressed the view that Chopper may exhibit more dominance

in his own home and that Chopper would require obedience training. It

was likely that Chopper would act to protect his owner; and that where a

dog has already been in an attack extra concern was needed. Past

behaviour is the best predictor of future conduct. Chopper is a large dog

with very strong jaw power and thus the potential to do serious damage to

a person or other animal.

(k) Chopper did inflict serious injury, requiring the victim to be hospitalised

in the attack in November 2014. The applicant asserts that Chopper was

defending him. Ms Symon expressed the opinion in her statement that the

applicant was not able to control Chopper. Mr Hill clearly appreciates the

potential danger Chopper poses in his choice of time to take the dog for a

walk and the desire to avoid contact with children and other animals.

27. Following the complaint by Ms Symons, on 21 September 2015 DAS issued a

seizure notice to the applicant. The notice requested the applicant to present

Chopper for inspection at the DAS facility in Symonston. The applicant failed

to comply with the notice and the applicant did not contact DAS in relation to

the notice. In his statement of facts and contentions the applicant states:

I could not take Chopper to the pound as the DAS shelter is a considerable distance from my home (approximately 5 KM). I did not and do not have a driver’s licence due to my disability (15% memory loss due to a brain injury) I cannot take Chopper on public transport. Also I depended on Chopper to help me cope with my post-traumatic stress symptoms.

28. Following the incident in September 2015 and the receipt of the seizure notice,

the applicant contacted the Animal Defenders Office (ADO) for assistance. In

his statement of facts and contentions Mr Hill says:

Once I understood that the NSW dangerous dog conditions no longer applied to me and that DAS wanted me to apply for another ACT dangerous dog licence, I lodged my application on 28 November 2015.

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The respondent indicated that the main requirement was to erect an enclosure in which to keep Chopper contained when I was away from home.

29. Mr Hill, with the assistance of the ADO, obtained information about the

requirements for that enclosure and has taken steps to erect a suitable and

compliant enclosure in his front courtyard.

30. The evidence of Mr Harrold was that, following an investigation conducted by

him, and noting that the applicant had failed to respond to the seizure notice, he

began the process for obtaining a warrant to seize Chopper. Active patrolling of

the area surrounding the residence of the applicant was undertaken by DAS

officers. On 5 May 2016 during one such patrol Mr Harrold observed Mr Hill

walking two dogs out of the driveway to the residence. He identified one of the

dogs as Chopper and noted that Chopper was not muzzled and did not have a

dangerous dog collar on. He decided to seize Chopper for investigation into the

attack on 10 September 2015 and for breaches of the dangerous dog conditions.

31. Chopper has been impounded since 5 May 2016.

Consideration of the section 25 factors32. In reviewing the decision to refuse a dangerous dog licence to Mr Hill in

relation to Chopper, ACAT must take into account the factors set out in section

25(2) of the DA Act:

(a) the size and nature of the premises where the applicant intends to keep the

dog;

(b) the security of the premises;

(c) the suitability of facilities for keeping the dog on the premises;

(d) the potential impact on the occupiers of neighbouring premises;

(e) any conviction or finding of guilty of the applicant within the last 10 years

for an offence against a law of a Territory or State relating to the welfare,

keeping or control of an animal; and

(f) the likelihood of harm being caused to any member of the public or an

animal.

33. ACAT is not limited to a consideration of those factors. In Robertson v DAS (an

unreported decision of ACAT on 20 August 2009) the President Crebbin stated:

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...in interpreting and applying any law, it is appropriate that a decision maker bear in mind the purpose of the legislation being considered.

34. The preamble to the DA Act describes the Act as an Act to provide for the

identification and registration of certain animals and the duties of owners, carers

and keepers and for other purposes. In Robertson, ACAT found that the

overarching purpose of the DA Act is to secure the safety of the public. In

Bugter v Mooranbool Shire Council [2011] VCAT 1833 the tribunal found that

an important purpose of animal control legislation is to protect the community

from nuisance dogs and to identify and control dangerous dogs. In Sarlija v

Registrar Domestic Animal Services [2012] ACAT 57 [at 46-48] the tribunal

referred to Bugter and took three things from it:

First of all, in that matter VCAT noted the difficulty in accepting any undertakings as to security, and in particular that there is no practical method of enforcing such undertakings given to a tribunal except by contempt proceedings. Accepting undertakings would be inappropriate when there is already an Act in place for the regulation and the control of dangerous dogs.

Secondly, the decision in Bugter confirmed that even if a tribunal or a court is satisfied as to the absolute security of the premises that is not the end of the matter. It is not enough to say, “These premises meet the requirements of the licence conditions.” Any tribunal or decision maker must proceed to properly consider the other factors. The satisfaction of the security conditions is not by itself enough to decide the matter.

Thirdly, the purpose of the Victorian Act, which was similar to our own, was to protect the community from nuisance dogs and to identify and control dangerous dogs, and that simply reinforces President Crebbin’s view in Robertson.

35. It is essential that the owners of dogs are provided with a fair hearing and given

an opportunity to respond to the reasons for any refusal to grant a licence, and to

ensure that there is a proper balancing of interests in the consideration of the

rights and interests of the dog owner and of the community.

36. In Sarlija v Registrar Domestic Animal Services [2012] ACAT 57 the Tribunal

noted at paragraphs 28 – 30:

...the legislation should be interpreted in a manner that promotes the purpose of protecting the community from dangerous dogs. Further the approach to be adopted by the tribunal is not simply a matter of ticking the boxes and looking at the provisions one at a time. It is a matter of looking at those provisions one at a time then giving some weight to them

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and balancing the interests of dog owners and the public. It is a fine line. In all of these cases, the courts and the tribunals acknowledge that these are extremely difficult decisions to make because in none of the cases do we have owners who do not care for, or who do not want to protect, their own animals. A factor to be taken into account in the balancing of interests is an assessment of the reliability of the applicant as a responsible dog owner.

Section 25 factors37. The Tribunal turns first to the section 25(2) factors and takes together the size

and nature of the premises where the applicant intends to keep the dogs, the

security of the premises and the suitability of the facilities for keeping the dog.

38. The Tribunal inspected the premises and the facilities for keeping the dog on 8

March 2017. The applicant is a tenant in one unit in a complex of housing

suitable for persons with a disability. All of the units face into a common area

which is a hard surfaced broad driveway, with front entrance doors and/or gates

and garage roller doors opening from each unit onto that common area. The

applicant’s premises are accessed through a front gate which opens to a small

enclosed courtyard. There is a front door and sliding door giving access to the

interior of the unit from that courtyard. The applicant’s premises have internal

access through a door to the garage, the roller door opens to the common area.

39. The internal garage door if opened at the same time as the roller door would

allow dogs to readily move to the common area. The applicant asserted at the

inspection that he would at all times ensure the garage door was not open before

he opened the internal door. The Tribunal noted the applicant’s evidence that

the gate from the common area to the courtyard was locked by means of a chain

and padlock and the enclosure for confining Chopper was located in that

courtyard. There is no doorbell. If persons visiting the premises are not able to

gain access to the front door via the courtyard then access through the garage is

the only other possibility. The probability of Chopper and/or Champion

escaping through the internal access door and the garage is high.

40. The rear door to the premises opens to a small courtyard with a wall at the back.

During the inspection there was concern raised by the respondent as to whether

Chopper would be able to jump that wall. It was noted that there was a fair drop

to the ground below. Mr Ehlers in his oral evidence stated that the three to four

metre drop would not “be a worry” and that a dog of Chopper’s size and

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strength could jump the wall and land on the ground without injury. The

Tribunal notes that the area immediately below the back courtyard is a public

area with a pathway.

41. Mr Hill gave evidence at the inspection that Chopper would be inside the house

at the times that he was home and that Chopper would only be confined to the

cage facility when the applicant was absent from the house. Mr Hill stated that

he was going to develop the garage area as a ‘man space’. There was a lounge in

the garage. Mr Hill stated that his friends would come into the house through

the garage.

42. The Tribunal also inspected the cage facility located in the small front

courtyard. The cage was manifestly not in a condition to secure Chopper and

prevent escape. The cage was not fixed to the ground, the mesh could easily be

pulled out at the bottom and the door was not self-closing or self-latching. There

was no lock evident. The Tribunal noted that there was no roof on the cage.

Further the front courtyard fence was atop a brick wall which would provide a

step so that should Chopper escape the cage the probability of his jumping the

fence was high.

43. The Tribunal further observed at the inspection that there was no shade or sun

protection, no provision for water or feeding and no bedding supplied.

44. The applicant contended in his statement of facts and contentions that the

criterion in section 25 (2)(a), (b) and (c) were met. In particular he submitted :

I can keep Chopper contained within an escape-proof enclosure in my front yard. The enclosure is 3mx3m and has a concrete floor so Chopper cannot dig his way out of the enclosure. The enclosure gate is self-closing and secured by a padlock. Chopper would have access to food, water and shelter while in the enclosure. [at 78]

If the gate to the enclosure was accidently left open, which I submit is unlikely given the installation of a spring action gate …[at 79]

The enclosure has a sleeping area, food and water and an appropriate run area for Chopper, thereby providing suitable facilities for keeping Chopper [at 85]

In his material in reply he stated:

I have met all the requirements regarding the dog enclosure and fencing. [at 17]

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45. These submissions were not supported by the evidence of the inspection.

46. In his submissions to the Tribunal at the hearing the applicant asserted that he

could meet all the requirements for ensure a safe, proper and secure facility for

the housing of the dog. Mr Hill further stated that there was no evidence that

Chopper had ever escaped and that Chopper was not “a jumper”. The applicant

submitted that the licence could be made subject to a condition that all work

required to render the cage secure and suitable and to ensure that the premises

were secure.

47. I find on the evidence of the inspection and the further evidence given in the

hearing that the premises are not secure. The facilities for keeping the dog are

not secure. The risk of Chopper escaping from the house through the garage is

high. The cage facility for the keeping of the dog is not suitable in its current

condition for the healthy and humane confinement of the dog.

48. The next factor to be taken into account is the potential impact on the occupiers

of neighbouring premises. This requires an assessment of the potential impact

upon the persons who are immediate neighbours – the other tenants in the

complex and of the potential impact on persons in the local area. This includes

persons making ordinary use of neighbourhood facilities in the surrounding

areas. The applicant made submissions that there was “no evidence of concern”

and that he gets along well with his neighbours. The respondent made

submissions as to the concern for the impact on other tenants in the complex and

the danger posed to them should Chopper escape from the premises. It is noted

that Chopper inflicted serious injuries on the 71 year old man attacked in the

Tent Embassy incident. The tenants of this complex are vulnerable, may not

understand the danger posed by Chopper and may not be able to escape to the

safety of their own units. If Chopper is not properly controlled or if the

applicant is not able to control Chopper while walking him then other

neighbours using nearby public spaces are at risk.

49. Mr Ehlers gave evidence that Chopper is a dominant dog, that these breeds need

to be socialised and trained, that Chopper was likely to be more dominant in his

home environment, that past behaviour was the best indicator of future

behaviour, that Chopper has a strong and powerful jaw and could inflict serious

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damage on a person and that even if muzzled Chopper could still inflict a bite.

Mr Hill has not taken Chopper to a socialisation and training course, despite the

order of the ACT Magistrates Court. Mr Hill asserts that he has control over

Chopper, Mr Ehlers cast doubt on Mr Hill’s assertion that Chopper stopped the

attack on the person at the Tent Embassy on command. The evidence from

Ms Symon was that Mr Hill was not able to control Chopper and was dragged

behind Chopper as he attacked her dog. While disputing that evidence Mr Hill

gave evidence that he warned Ms Symon to stay away from Chopper and to take

her dogs around him.

50. The potential impact on the occupiers of neighbouring premises is twofold:

there is a high risk of attack by Chopper if he escapes; there is a high risk of

injury from an attack by Chopper even if he is muzzled. The dog has not been

trained and there is some doubt as to Mr Hill’s ability to prevent his escape

through the garage or to control him in public spaces.

51. Section 25(2)(e) requires ACAT to have regard to any conviction or finding of

guilty of the applicant within the last 10 years for an offence against a law of a

Territory or State relating to the welfare, keeping or control of an animal. On

4 November 2014 the applicant was convicted of an offence of being the keeper

of a dog that has attacked a person. The ACT Magistrates Court declared

Chopper to be a dangerous dog and ordered the dog and its keeper to complete

an approved course in behavioural or socialisation training for the dog. The

applicant was sentenced to three months’ imprisonment, that sentence was

suspended and the applicant was released on a good behaviour order. In addition

the applicant was fined $500.

52. Section 25(2)(f) requires ACAT to have regard to the likelihood of harm being

caused to any member of the public or an animal. The undisputed evidence is

that Chopper has been tied up, not muzzled and left unattended at the Garran

Shops. Mr Hill says that he only did this on one occasion, before he knew that

you could not leave a dog tied up. The respondent produced a photograph of a

dog tied up at the Garran shops: at first Mr Hill identified that dog as Chopper,

but on the next day stated that the dog was not Chopper. The documents filed by

the respondent indicate that the photo, which was received by DAS on

21 April 2016, was taken by a shop owner who complained that Mr Hill

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continually leaves Chopper tied up, unattended and without a muzzle.1 The

Garran Shops are in a public place: the precinct contains a post office, medical

centre, supermarket and cafes.

53. The uncontested evidence is that the applicant has walked Chopper in public

spaces without a muzzle. In his written submissions the applicant stated: “I

purchased a muzzle for Chopper which I tried to put on him whenever we went

out. It didn’t fit well so on occasions I had to remove it as it seemed to be

hurting Chopper to wear it.” [at 59] In his oral evidence, the applicant, when

shown a photo of himself walking Chopper and Champion, conceded that

Chopper was not muzzled and said that he forgot to put the muzzle on. The

evidence of the applicant was inconsistent and it was not clear how frequent an

occasion it was that Chopper was walked, not wearing a muzzle, in public

spaces.

54. I am satisfied on the evidence before me that the applicant has left the dog

Chopper tied up, unattended and not muzzled at the Garran Shops, walked the

dog Chopper in public places when the dog either was not muzzled prior to

leaving home or the applicant removed the muzzle because it was

uncomfortable for the dog. These events happened at times when Chopper was

declared to be a dangerous dog and the applicant believed that he was subject to

a requirement to muzzle the dog in public places. I am satisfied on the evidence

before me that there is a high likelihood of harm being caused to any member of

the public or an animal.

55. The applicant has stated in his written and oral submissions that he is a reliable

dog owner. He made the following submissions:

(a) He has caused considerable work to be done and spent money in an effort

to comply with the requirements regarding the security of the premises

and suitability of the cage facility. There is evidence that the applicant has

communicated with DAS officers regarding the cage facility and that he

has made adjustments to the fence if the front courtyard. Inspection by

ACAT on 8 March showed that the facilities were not adequate and that

the cage facility and the premises were not secure. The documents filed by

1 T doc 30 at 3.13

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the respondent include a DAS fence inspection report which gave the

premises a fail and, inter alia, set out requirements for a self-closing gate

with a locking mechanism on the cage, and a roof on the cage for shelter

and containment. Neither of these had been met at the date of the

inspection.

(b) Chopper is desexed, microchipped and registered.

(c) He is now aware of the requirements to muzzle Chopper, have Chopper

wear a dangerous dog collar and that he must not walk Chopper with

another dog. The conduct of Mr Hill during a time that he says he believed

that he had a dangerous dog licence indicates that he did not then make

sure that he complied with the conditions set out in section 27 of the DA

Act. The Tribunal does not accept that forgetting or deciding to remove a

muzzle because the dog was uncomfortable constitutes a reasonable

excuse for failing to comply with the condition that the dog be muzzled.

(d) The applicant says at [105] of his written submission that he is in the

process of engaging a dog behaviour assessor and that he will undertake

any training recommended. There was no evidence before me that the

applicant had indeed taken any steps towards arranging for assessment

and training.

(e) In his final submissions the applicant made the following points:

(i) He was aware of the risks that Chopper posed and the injuries he

could inflict.

(ii) Chopper had no history of escape and was not a jumper.

(iii) He as the owner and keeper of the dog had real control of Chopper.

(iv) He intended to walk Chopper alone and only at times he was

unlikely to meet children or other animals.

(v) He had only one conviction relating to the Tent Embassy incident.

(vi) There was only one incident involving Chopper since that and the

evidence as to the circumstances of that incident was contested.

(vii) He will ensure that Chopper is not left at the Garran shops – in fact

he now avoids those shops.

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(viii) He believed that he had a dangerous dog licence that was valid when

he returned to the ACT. As soon as he was informed that he need to

make an application for a licence he did so.

(ix) Chopper is a vital companion for Mr Hill. He has an isolated life,

has suffered trauma and stress as a member of the stolen generation

and has an acquired brain injury which affects his memory.

56. The respondent made final submissions that ACAT had not only to take into

account and give appropriate weight to the factors set out in section 25(2) of the

DA Act but to assess the conduct of the applicant. An assessment of his

reliability as the keeper and owner of a dangerous dog was relevant to the

specific matters set out in section 25(2) and the discretion of the Tribunal, with

public safety the overarching factor.

57. The respondent made submissions that the Tribunal should have regard to the

following facts in assessing whether the applicant has demonstrated that he is a

reliable owner of a dangerous dog:

(a) The incident at the Tent Embassy, particularly the serious injury inflicted.

(b) The applicant was convicted of an offence of being the keeper of a dog

that has attacked a person. The ACT Magistrates Court declared Chopper

to be a dangerous dog and ordered the dog and its keeper to complete an

approved course in behavioural or socialisation training for the dog. The

applicant was fined $500. The applicant has not undertaken the training

and has not paid the fine.

(c) Mr Hill was supplied with documents relating to both the ACT dangerous

dog licence and the NSW dangerous dog declaration conditions. He failed

to appreciate the serious nature of the requirements and did not comply

with them.

(d) ACAT is required to assess the premises and facility for keeping the dog

as they currently exist, as stated in Sarlija.

(e) The applicant has since June 2016 been aware of the requirements to bring

the premises and facility to a proper standard to ensure the security of the

dog and the safety of the public but has failed to do so.

(f) The premises were seen on inspection to be inadequate.

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(g) The location of the premises in a complex housing residents with

disabilities means that the danger of attack and/or injury is heightened.

(h) Hyper vigilance is required to ensure that Chopper cannot escape into the

common areas of the complex.

(i) Public safety is compromised by the lack of security in both the cage

facility and the premises, the nature of the complex and the layout of the

garages and common areas and the temperament of Chopper.

(j) Chopper is a strong, dominant dog. The evidence of Mr Ehlers was that

past conduct is a good indicator of future behaviour and that Chopper has

learnt behaviour of attack and biting. This behaviour is not likely to

change and the two incidents demonstrate that it is not likely that the

applicant is able to control Chopper.

(k) The uncontested evidence is that the applicant has failed to comply with

the conditions relating to dangerous dogs and has walked Chopper without

a muzzle, has walked Chopper with another dog, has failed to use the

dangerous dog collar and has left Chopper unattended and not muzzled at

a shopping centre.

58. In Sarlija & Registrar Domestic Animal Services [2012] ACAT 62 the Appeal

Tribunal referred to the public expectation that steps would be taken to ensure

that dogs which had caused injury could not get out again.

59. In Sarlija & Registrar Domestic Animal Services [2012] ACAT 57 the Tribunal

referred to Gubbins v Wyndham City Council [2004] VSC 238 where the

Supreme Court of Victoria believed that an assessment of the reliability as

opposed to the credibility of the owners of the animals was appropriate. The

Victorian Supreme Court stated that this was an assessment of the reliability of

the applicant as a responsible dog owner (at [62]).

60. On the evidence before me I have assessed Mr Hill to not be a reliable

dangerous dog owner. I have had regard to and placed weight on the following:

(a) The applicant knew that Chopper had been declared a dangerous dog in

November 2014.

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(b) The applicant took no steps upon his return to the ACT to enquire as to

the validity of the licence granted to facilitate transport of Chopper to

NSW or as the requirements of keeping dangerous dog in the ACT.

(c) I accept that Mr Hill believed on reasonable grounds that he was the

holder of a dangerous dog licence in the ACT. He misunderstood the

requirements of that licence and in particular stated in his written

submissions at [55]: “I note that my ACT dangerous dog licence had only

one condition which required recognition that Chopper has been declared

a dangerous dog in the ACT. Therefore I cannot be held to have breached

conditions of my ACT licence.” The letter of 20 April 2015 informing

him that his licence had been granted referred to the standard conditions

as outlined in section 27 of the DA Act. That section provides as follows:

27 Dangerous dogs in public places

(1) A carer must not, without reasonable excuse, be in a public place with a dangerous dog unless it is wearing a muzzle.

Maximum penalty: 10 penalty units.

(2) A keeper of a dangerous dog must not, without reasonable excuse, allow the dog to be in a public place without the keeper or someone else who is in charge of the dog.

Maximum penalty: 10 penalty units.

(d) The evidence established that the applicant breached both of these

conditions. He allowed Chopper into public places without a muzzle and

he left him unattended at a shopping centre.

(e) The applicant did not undertake the training ordered by the ACT

Magistrates Court and produced no evidence that he had made inquiries

about or arranged for such training. The evidence of Mr Ehlers and Mr

Harrold, each a person with considerable experience with dogs and dog

behaviour was that Chopper was a dominant dog, whose conduct was not

always consistent. Mr Ehlers doubted that the applicant was able to

control Chopper as he asserted. Given the failure to undertake the training

and the lack of any evidence as to Mr Hill’s real control of Chopper I am

not satisfied that the applicant is able to assert proper control over

Chopper.

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(f) The applicant was served with a seizure notice on 21 September 2015.

The applicant did not comply with the notice and did not contact DAS to

make inquiries, arrange for Chopper to be transported to the DAS facility

or explain his failure to comply.

(g) On the day that Chopper was seized Mr Hill had already been in contact

with DAS with regard to the security of the premises and the cage facility;

Chopper had been involved in an incident where another dog was injured;

he had been served with a seizure notice and he said he believed he had a

dangerous dog licence; yet he walked Chopper and another dog at the

same time; Chopper was without a muzzle and was not wearing a

dangerous dog collar.

(h) The applicant appreciates the risk to the safety of members of the public.

He walks Chopper at times calculated to avoid contact with children and

other animals, he says he warned Ms Symon to avoid Chopper and yet he

does not turn his mind to those risks when he leaves the dog at the

shopping centre or does not ensure that Chopper is muzzled. He says he

did not know that he could not leave a dog at a shopping centre, at a time

when he was subject to the section 27 conditions; he says he just forgot to

put the muzzle on. The applicant has said that his disability includes

problems with memory. The risk to the safety of the public is evident and

is high.

(i) The conduct of the applicant during the hearing, his interruptions and

outbursts, his aggressive behaviour towards witnesses as well as his

explanations excusing his conduct and blaming others lead me to conclude

that Mr Hill lacks insight – he seems to think that near enough is good

enough and appears to view the statutory and regulatory regime as well as

the conduct of DAS as burdens on his behaviour rather than as measures

designed to protect the public through the identification and control of

dangerous dogs.

61. The applicant’s consistent failure to comply with the requirements of the

regulatory system – the failure to make the premises secure, the failure to make

the cage facility secure, the failure to comply with the order for training, and the

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failure to comply with the seizure notice is given considerable weight and leads

the Tribunal to the conclusion that the applicant cannot be relied upon to take

his responsibility as the owner of a dangerous dog seriously. I have noted that

the applicant promises to comply for the future. He has had ample opportunity

to demonstrate that he can be relied upon to comply with the regulatory

requirements but has not done so.

62. I am satisfied that the applicant is not a reliable dog owner. I am satisfied that

the lack of physical security of the premises and cage, the location of the

premises in a complex with other residents with disabilities, the conduct of the

applicant in failing to appreciate and comply with the requirements of section

27 when taken together pose an unacceptable risk to public safety. There is a

real and unacceptable risk of injury to a member of the public or another animal

should the applicant fail to comply with the requirements or should Chopper

escape.

63. I note from the decision record of the respondent that many of the above factors

were considered in reaching the conclusion that the applicant had not

demonstrated responsible behaviour as the owner of a dog that has attacked a

person and assessing the high level of concern about the likelihood of harm

being caused to a member of the public or an animal.

ORDER

1. The decision to refuse a dangerous dog licence is confirmed.

………………………………..President G Neate AM

Delivered for and on behalf of the Tribunal

HEARING DETAILS

FILE NUMBER: AT 73/2016

PARTIES, APPLICANT: Peter Hill

PARTIES, RESPONDENT: Registrar, Domestic Animal Services

COUNSEL APPEARING, APPLICANT

N/A

COUNSEL APPEARING, RESPONDENT

Ms K Katavic

SOLICITORS FOR APPLICANT Animal Defenders Office

SOLICITORS FOR RESPONDENT ACT Government Solicitor

TRIBUNAL MEMBERS: Senior Member J Lennard

DATES OF HEARING: 8-9 March 2017