Dog owner loses fight to save dog after attack on child

In brief – The owner of a dog that seriously injured a young girl has failed to save the dog from destruction after the Queensland Civil and Administrative Tribunal (QCAT) refused to overturn a decision of the Moreton Bay Regional Council that the dog be destroyed. QCAT rejected the owner’s claims that the Council was not able to issue a destruction order in the circumstances and QCAT was satisfied that the Council had acted reasonably in ordering the dog be destroyed.

Implications

• Under the Animal Management (Cats and Dogs) Act 2008 (Animal Management Act), a local government may make a ‘destruction order’ in relation to a ‘regulated dog’.
• There are no express criteria under the Animal Management Act to guide the exercise of the discretion to make a destruction order. However, regard should be had to the provisions of the Act which reveal its underlining objectives. These include community safety.
• Where a local government has made a destruction order, a person may appeal against the decision to QCAT. QCAT must decide a review by way of a fresh hearing of the merits and produce the correct and preferable decision.
• There is no express limitation under the Animal Management Act which would prevent an authorised person from issuing separately a dangerous dog declaration and a destruction order (at a future date) arising out of the same factual circumstances.
• In order for a magistrate to issue a warrant, it is for the magistrate to be satisfied that there are reasonable grounds for suspecting that there is a thing or activity at the place the warrant is to be executed that may provide evidence of an offence under the Animal Management Act.
• In order for a warrant to be invalidated by a defect in the warrant, the defect must affect the substance of the warrant in a material manner.
• Whilst the Animal Management Act does not contemplate that every dog that has attacked and caused injury should be destroyed, the decision maker has discretion whether or not to make a destruction order.

Decision

Ms Bradshaw was the registered owner of a regulated dog under the Animal Management Act.

An incident took place in which a child suffered serious facial injuries as a result of the dog. No other incidents had occurred involving the dog otherwise.

An authorised person under the Animal Management Act employed by the Moreton Bay Regional Council initially declared the dog to be a dangerous dog. The Council also later obtained a warrant to seize the dog and issued a destruction order in relation to the dog.

Ms Bradshaw applied to QCAT for a review of the decision of the Council to make a destruction order in respect of the dog on the basis that the:

• Council was not able to make a dangerous dog declaration and later a destruction order on the same factual circumstances;
• Council was not lawfully able to seize the dog from Ms Bradshaw’s premises as the warrant it obtained from the Magistrate was deficient;
• facts, matters and circumstances did not give rise to the Council exercising its discretion to make a destruction order.

QCAT carried out a detailed review of the provisions of the Animal Management Act and determined that:

• there was no express limitation under the Act, which would prevent an authorised person from issuing separately a dangerous dog declaration and a destruction order (at a future date) arising out of the same factual circumstances;
• the authorised person was able to obtain a warrant from a Magistrate under 118 or 125 of the Act and in both instances there was sufficient evidence to support a basis for obtaining the warrant;
• given the nature of the incident and the injury sustained from the child, the Council appropriately made a destruction order in relation to the dog.

While QCAT acknowledged it was a serious matter to order the destruction of a family pet and the owner had taken steps to reduce the risk of the dog causing future injury, the sheer seriousness of the injury caused to a young child and the nature of the attack that came without warning were powerful considerations against setting aside the order.

Overall, the QCAT member considered that the risk of another serious injuring occurring was unacceptable and on this basis QCAT upheld the Council’s decision that the dog be destroyed.

Authored by:
Stafford Hopewell, Partner, Brisbane
Elton Morais, Senior Associate, Brisbane
Hanna Brown, Solicitor, Brisbane