QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

Transcription

1 QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Bradshaw v Moreton Bay Regional Council [2018] QCATA 140 PARTIES: APPLICATION NO: ORIGINATING APPLICATION NO: MATTER TYPE: TAMMY BRADSHAW (applicant) v MORETON BAY REGIONAL COUNCIL (respondent) APL GAR Appeals DELIVERED ON: 24 September 2018 HEARING DATE: 31 May 2018 HEARD AT: DECISION OF: ORDERS: CATCHWORDS: Brisbane Senior Member Brown, presiding Member Jones 1. Leave to appeal is granted. 2. The appeal is allowed. 3. The decision of the tribunal made on 22 December 2017 is set aside. 4. The decision of the Moreton Bay Regional Council made on 23 May 2017 to issue a Destruction Notice in respect of the dog Hank is set aside. APPEAL AND NEW TRIAL APPEAL GENERAL PRINCIPLES INTERFERENCE WITH DISCRETION OF COURT BELOW IN GENERAL FAILURE TO EXERCISE DISCRETION where questions of fact where findings of fact against the weight of the evidence whether appropriate to grant leave to appeal rehearing under s 147 of the QCAT Act where error of law whether Tribunal below took into account relevant considerations whether decision unreasonable or plainly unjust whether there has been a failure to properly exercise discretion Animal Management (Cats and Dogs) Act 2008 (Qld), s 70(1)(a), s 89(1), s 89(2)(a), s 89(2)(b), s 97(1), s 125, Schedule 1 s 19

2 2 Animal Management (Cats and Dogs) Regulation 2009 (Qld), Part 2 Division 3 Queensland Civil and Administrative Tribunal Act (2009) (Qld), s 19(a), s 20(1), s 20(2), s 142(1), s 142(3)(b), s 146, s 146(b), s 147(2), s 147(3) Cachia v Grech [2009] NSWCA 232 Chambers v Jobling (1986) 7 NSWLR 1 Ericson v Queensland Building Services Authority [2013] QCA 391 Glenwood Properties Pty Ltd v Delmoss Pty Ltd & Anor [1986] 2 Qd R 388 Harrison and Anor v Meehan [2016] QCATA 197 House v R (1936) 55 CLR 499 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 Paterson v Paterson (1953) 89 CLR 212 Perry v Comcare [2006] FCA 33 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Thomas v Ipswich City Council [2015] QCATA 97 APPEARANCES & REPRESENTATION: Applicant: Respondent: B McMillan of Counsel, instructed by Anderson Fredericks Turner D Whitehouse of Counsel, instructed by Moreton Bay Regional Council REASONS FOR DECISION What is this appeal about? [1] On 22 December 2017 the tribunal confirmed a destruction order made by Moreton Bay Regional Council in respect of Hank, a 4 year old male Neapolitan Mastiff dog. The factual background relevant to the appeal [2] On 21 October 2016 Ms Bradshaw was attending a social function at a neighbour s home. Ms Bradshaw was standing in the front yard holding Hank by the collar. A 7 year old child approached Ms Bradshaw and Hank. After an interaction between the child and Hank it became apparent that the child had sustained a serious injury to her face. An ambulance was called and the child was transported to hospital. [3] Ms Bradshaw and her partner were subsequently interviewed by an officer of the Council and on 17 November 2016, Ms Bradshaw received correspondence from the

3 3 Council enclosing a Proposed Regulated Dog Declaration Notice. On 18 January 2017 the Council advised Ms Bradshaw that the Regulated Dog Declaration was upheld. [4] On 23 May 2017 the Council issued a Destruction Order in respect of Hank and on that date Hank was seized by Council officers. [5] Ms Bradshaw applied to the Tribunal for a review of the decision by the Council to issue the Destruction Order. The Tribunal confirmed the Council s decision. 1 Ms Bradshaw successfully appealed that decision to the QCAT Appeal Tribunal and the application for review was remitted to the Tribunal for reconsideration. 2 The Tribunal subsequently confirmed the original decision by the Council to issue the Destruction Order. 3 Ms Bradshaw appeals the Tribunal s decision. The statutory framework - appeals [6] A party to a proceeding may appeal to the appeal tribunal against a decision of the tribunal. 4 [7] An appeal on a question of law is of right. An appeal on a question of fact or a question of mixed law and fact requires the leave of the appeal tribunal. 5 In deciding an appeal on a question of law only the appeal tribunal may confirm or amend the decision, set aside the decision and substitute its own decision or set aside the decision and return the matter to the same or a differently constituted tribunal for reconsideration. 6 An appeal on a question of law does not entail re-hearing the matter. The appeal tribunal may set aside the decision and substitute its own decision on a question of law only if determination of the question of law is capable of resolving the matter as a whole in the applicant s favour. 7 [8] An appeal against a decision on a question of fact or mixed law must be decided by way of rehearing with or without the hearing of additional evidence as decided by the appeal tribunal. 8 The appeal tribunal may confirm or amend the decision or set aside the decision and substitute its own decision. 9 [9] The relevant principles to be applied in determining whether to grant leave to appeal are: is there a reasonably arguable case of error in the primary decision; 10 is there a reasonable prospect that the applicant will obtain substantive relief; 11 is leave necessary to correct a substantial injustice to the applicant caused by some error; 12 is there a question of general importance upon which further argument, and a decision of the appellate court or Tribunal, would be to the public advantage Bradshaw v Moreton Bay Regional Council [2017] QCAT Bradshaw v Moreton Bay Regional Council [2017] QCATA Bradshaw v Moreton Bay Regional Council (No 2) [2017] QCAT QCAT Act, s 142(1). 5 Ibid, s 142(3)(b). 6 Ibid, s Ericson v Queensland Building Services Authority [2013] QCA QCAT Act, s 147(2). 9 Ibid, s 147(3). 10 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R Cachia v Grech [2009] NSWCA 232, [13]. 12 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R Glenwood Properties Pty Ltd v Delmoss Pty Ltd & Anor [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 578, 580.

4 4 [10] The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions reached by the tribunal at first instance. An appellate tribunal may interfere with findings of fact if the conclusion is contrary to compelling inferences in the case. 14 The statutory framework Animal Management (Cats and Dogs) Act 2008 (Qld) (AM Act) [11] A local government may declare a particular dog to be a dangerous dog, a menacing dog or a restricted dog. 15 A dangerous dog declaration may be made for a dog only if the dog has seriously attacked or acted in a way that caused fear to a person or another animal; 16 or may, in the opinion of an authorised person, seriously attack, or act in a way that causes fear to, a person or animal. 17 [12] The owner of a declared dangerous dog must ensure it is desexed within 3 months after the dog is declared dangerous. 18 The owner of a dangerous dog must also ensure each permit condition imposed under ss 2 to 6 and s 8 of Schedule 1 of the AM Act is complied with. 19 The conditions include a requirement that a declared dog must usually be kept in a childproof enclosure. 20 The requirements for an enclosure are prescribed. 21 The term childproof is not defined in the AM Act or the regulation. [13] An authorised person may, under s 125 of the AM Act or pursuant to a warrant, seize a dog. 22 An authorised person may make a destruction order stating the person proposes to destroy the dog 14 days after the order is served. 23 The findings by the tribunal [14] The tribunal found: (a) (b) The threat posed by Hank was of a sudden and unprovoked attack causing serious injury to members of the community, particularly vulnerable persons such as children; 24 It was not reasonable for Ms Bradshaw to rely upon advice given to her by a Council officer that she had an extended period of time within which to have Hank desexed; 25 (c) Ms Bradshaw had no reasonable explanation for not having Hank desexed; Chambers v Jobling (1986) 7 NSWLR 1 at AM Act, s 89(1). 16 Ibid, s 89(2)(a). 17 Ibid, s 89(2)(b). 18 Ibid, s 70(1)(a). 19 Ibid, s 97(1). 20 Ibid, Schedule 1, s Animal Management (Cats and Dogs) Regulation 2009, Part 2 Division AM Act, s Ibid, s 127(4). 24 Bradshaw v Moreton Bay Regional Council (No 2) [2017] QCAT 455, [30]. 25 Ibid, [13]. 26 Ibid, [35(a)].

5 5 (d) (e) (f) (g) (h) (i) Ms Bradshaw did not make Hank s enclosure childproof until requested to do so by a Council officer; 27 Little weight could be placed upon alternative arrangements proposed by Ms Bradshaw as to where Hank could be kept; 28 Little weight could be placed on the fact that there had been no reported attacks by Hank in the period of 7 months between the subject attack and when Hank was seized by the Council; 29 It was more likely than not that, based on the conduct of Ms Bradshaw following the attack in not being diligent in attempting to comply with the conditions imposed by the Council, Ms Bradshaw would not be fully compliant with the conditions in the future; 30 Nothing short of full compliance with the conditions imposed by the Council would be sufficient to address the threat posed to the community by Hank; 31 Full compliance with the conditions would not, in any event, be sufficient to address the threat of a sudden and unprovoked attack by Hank on children staying with Ms Bradshaw. 32 What does Ms Bradshaw say? [15] Ms Bradshaw asserts a number of grounds of appeal: (a) (b) (c) (d) (e) Ground 1 The decision of the learned member was unreasonable and unsupported by the evidence; Ground 2 The finding that Ms Bradshaw did not make the enclosure childproof until requested to do so by a Council officer was not reasonably available on the evidence; Ground 3 the finding that it was more likely than not that Ms Bradshaw would not comply with the conditions imposed by the Council was contrary to the evidence; Ground 4 the finding that full compliance with the conditions imposed by the Council would not be adequate to address the threat of a sudden unprovoked attack on children at Ms Bradshaw s residence was contrary to the evidence and contrary to logic; Ground 5 the learned member failed to place any or adequate weight on the absence of any other incidents involving, or aggression by, Hank before or since the subject incident; 27 Ibid, [35(b)]. 28 Ibid, [36]. 29 Ibid, [37]. 30 Ibid, [38]. 31 Ibid. 32 Ibid.

6 6 (f) Grounds 6 and 7 the learned member failed to give any or adequate weight to the evidence that any risk to the community could be adequately managed under the conditions of the existing dangerous dog declaration; and to the steps taken by Ms Bradshaw, or the steps she was prepared to take, to mitigate risk posed by Hank to the community. [16] Grounds of appeal 2, 3, 4, 5, 6 and 7 raise questions of fact or questions of mixed law and fact. Ground of appeal 1 is an expression of unreasonableness in accordance with the principles in House v The King 33 and raises a question of law. When considered together, Ms Bradshaw s grounds of appeal might be considered as asserting a failure by the learned member to exercise his discretion in accordance with the principles in House v The King. 34 Whether the learned member erred in the exercise of his discretion under the House principles is a question of law. 35 What does the Council say? [17] In response to each of the grounds of appeal, the Council says: (a) (b) (c) (d) Ground 1 the decision below was both evident and intelligible and took into account Ms Bradshaw s willingness to have Hank desexed, the statements relating to Hank s good nature, the absence of prior or subsequent attacks and the additional steps Ms Bradshaw was prepared to undertake in respect of Hank. The Council says that the evidence is entirely consistent with the ultimate decision to confirm the destruction order; Ground 2 the evidence before the learned member was that there were spaces between the palings of the enclosure fence through which a child could fit a hand at the time a council officer inspected the property in April 2017 and that this situation was subsequently remedied by Ms Bradshaw; Ground 3 the findings by the learned member must be viewed in the context of the strict requirements imposed by the AM Act in respect of declared dangerous dogs. The Council says that Hank was not desexed within 3 months after the dangerous dog declaration nor was the enclosure made childproof until almost 5 months after the declaration. It was, says the Council, open to the learned member to find that it was more likely than not that Ms Bradshaw would not be compliant with the conditions imposed by the Council; Ground 4 the conditions imposed by Council do not require Hank to be muzzled when at home. Further, the conditions do not require Hank to be kept in a second enclosure within the enclosure. Both of these were additional steps Ms Bradshaw said she was prepared to implement. Neither could be the subject of conditions. Ms Bradshaw s evidence was that she permitted small children to play with Hank after the attack and before he was seized. It was open on the evidence for the learned member to find that full compliance with the conditions would not be sufficient to address the threat of a sudden and unprovoked attack on the children at the house; 33 House v R (1936) 55 CLR Ibid. 35 Perry v Comcare [2006] FCA 33.

7 7 (e) (f) (g) Ground 5 the absence of any prior incidents of aggression or injury caused by Hank was irrelevant. It was the sudden and unprovoked nature of the attack that caused the decision to be made by the learned member. Ground 6 the conditions imposed by the AM Act fail to adequately protect any small children residing at the address. In addition, Ms Bradshaw herself volunteered undertaking additional steps to minimise risk, all of which fall outside the scope of the conditions; Ground 7 Ms Bradshaw appears to accept that steps beyond those imposed by the conditions may be required to manage any future risk to the community posed by Hank. The Council says Ms Bradshaw still fails to appreciate that she did not comply with the conditions in the first instance. Consideration [18] In exercising the Tribunal s review jurisdiction the learned member was required to decide the review in accordance with the QCAT Act and the AM Act. 36 The purpose of the review was to produce the correct and preferable decision. 37 The learned member was required to hear and decide the review by way of a fresh hearing on the merits. 38 [19] Much of the evidence in the hearing below was uncontested. The only witnesses who gave evidence at the hearing were Ms Bradshaw and the mother of the injured child. The evidence before the tribunal below, contained in witness statements and the oral testimony at the hearing, can be summarised as follows: (a) Prior to the incident on 21 October 2016, Hank had never displayed aggression nor had he attacked any person or other animal; 39 (b) Hank had jumped up to greet the child or jumped forward toward the child. 40 Hank did not bark, snarl or growl; 41 (c) (d) (e) There was no direct evidence as to the mechanism of injury to the child s face as a result of the interaction between Hank and the child; The injuries to the child included a large puncture wound to the right cheek and abrasions across the right side of the child s face; 42 On 17 November 2016 the Council issued a Proposed Regulated Dog Declaration Notice. On 8 December 2016 Hank was declared a dangerous dog under s 89 of the AM Act. The decision was confirmed on 18 January 2017 following internal review; 36 QCAT Act, s 19(a). 37 Ibid, s 20(1). 38 Ibid, s 20(2). 39 Applicant s submissions filed 27 April 2018; Statement of Tammy Bradshaw dated 14 November 2017, annexure Affidavit of Tammy Bradshaw dated 26 July 2017; statement of Veronica Wingrove dated 7 August Statement of Veronica Wingrove dated 7 August Respondent s relevant documents filed 11 July 2017, document D3 (Lady Cilento Childrens Hospital records).

8 8 (f) (g) (h) A Council officer, Mr Jamie Fry, subsequently met with Ms Bradshaw at her home and inspected the dog enclosure. There was some uncertainty as to the date of Mr Fry s inspection. Mr Fry thought it was on 28 February Ms Bradshaw s partner said it was on 16 March Mr Fry was of the view that the dog enclosure at the premises met the requirements of the conditions imposed under the AM Act. Mr Fry told Ms Bradshaw that she had 3 months from that date to have Hank desexed; 45 On 11 April 2017, Mr Patrick Jensen, a Council officer, inspected Ms Bradshaw s residence. Mr Jensen identified that the only non compliant aspect of the dog enclosure was that the spacing between the front fence palings was too wide. 46 On 13 April 2017 Mr Jensen spoke with Ms Bradshaw s partner, Mr Wallace, and had a conversation about the need to close the gaps identified in the front fencing. 47 On 26 April 2017 Mr Jensen received from another Council officer photographs of the front fence identifying that the gaps in the palings had been rectified; 48 On 23 May 2017 the Council made a decision to seize Hank and issue a Destruction Order. [20] As the QCAT appeal tribunal has previously observed in Thomas v Ipswich City Council, 49 there are no criteria for the making of a destruction order in s 127 of the AM Act. The following passages from Thomas are instructive: [16] In the absence of any specific criteria, the legislative intent must be ascertained from the legislative scheme. Section 3 provides that the purposes of the AM Act include providing for effective management of regulated dogs. Section 4 specifies how the purposes are primarily to be achieved. These means include imposing obligations on regulated dog owners; appointing officers to monitor compliance with the AM Act; and imposing obligations on some persons to ensure dogs do not attack or cause fear. Section 59 sets out that the purposes of Chapter 4 Regulated Dogs include protecting the community from damage or injury, or risk of damage or injury, from regulated dogs; ensuring that regulated dogs are not a risk to community health and safety; and ensuring regulated dogs are kept in a way consistent with community expectations and the rights of individuals. [18] It is clear that the AM Act is primarily directed towards the effective management and responsible ownership of dogs and that the destruction of a dog is a last resort. It is generally where the mechanisms in the Act for management fail, or are ineffective, that destruction arises. The essential question is whether the dog constitutes, or is likely to constitute, a threat to the safety of other animals or to people, by attacking them or causing fear, to the 43 Statement of Jamie Fry dated 26 July Statement of Nathan Wallace (undated). 45 Affidavit of Jamie Fry sworn 15 November 2017; Statement of Jamie Fry dated 26 July 2017; Transcript dated 21 December 2017, T1-18, lines Statement of Patrick Phillip Jensen dated 5 July Ibid. 48 Ibid. 49 [2015] QCATA 97.

9 9 extent that the threat may only be satisfactorily dealt with by the destruction of the dog. (footnotes omitted) [21] The learned member found that the mechanisms in the AM Act to manage Hank would be likely to fail or be ineffective, and that the threat to persons and other animals posed by Hank could only be satisfactorily dealt with by the destruction of the dog. The learned member found: (a) (b) (c) (d) Ms Bradshaw had not been particularly diligent in attempting to comply with the dangerous dog declaration conditions and had demonstrated a pattern of non-compliance with the conditions imposed by the AM Act; Based upon this non-compliance Ms Bradshaw was unlikely to be fully compliant with the conditions in the future; Nothing short of full compliance with the conditions applying to the dangerous dog declaration would be sufficient to address the threat of a sudden and unprovoked attack on the children who stay with Ms Bradshaw; Even full compliance with the conditions would be insufficient to address the threat of a sudden and unprovoked attack by Hank on children staying with Ms Bradshaw. [22] The learned member found that the Council was entitled to make a destruction order under s 127(4) of the AM Act. 50 The learned member accepted that the AM Act emphasises the seriousness of a destruction order and the necessity to consider whether the threat posed by a dog can be satisfactorily addressed by means short of a destruction order. 51 The learned member considered the circumstances of the incident giving rise to the original dangerous dog declaration 52 and identified the threat he considered Hank posed to the community. 53 The learned member accepted that there was no history of any other reported attacks involving Hank. 54 [23] The uncontested evidence before the learned member was that Ms Bradshaw had been told by the Council s officer, Mr Fry, that she had 3 months from the date of his visit to her home to have Hank desexed. The Council seized Hank before this period expired. The learned member accepted that the conversation took place between Ms Bradshaw and Mr Fry regarding the extended period within which Ms Bradshaw was required to arrange to have Hank desexed. 55 [24] The uncontested evidence before the learned member was that Ms Bradshaw was told by Mr Fry that the dog enclosure as constructed at her place of residence, and where Hank was kept, was compliant with the conditions imposed by the AM Act. It was the uncontested evidence that Ms Bradshaw s partner was subsequently told by Mr Jensen that additional palings were required to be placed along the front fence to close gaps in the fence. This was clearly contradictory to the earlier advice given to Ms Bradshaw by Mr Fry. Upon being advised by Mr Jensen about the additional work required to 50 Bradshaw v Moreton Bay Regional Council (No 2) [2017] QCAT 455, [23]. 51 Ibid, [29]. 52 Ibid, [4]-[6]. 53 Ibid, [30]. 54 Ibid, [37]. 55 Ibid, [13].

10 10 be carried out to the fence, the uncontested evidence before the learned member was that Ms Bradshaw had attended to the work within two weeks. [25] In relation to the actions taken by Ms Bradshaw regarding the dog enclosure, the following exchange took place at the hearing: MEMBER: I m just wondering whether you had undertaken any assessment of your own upon receiving the dangerous dog declaration before Council came to inspect in April? MS BRADSHAW: Yeah. So that s why the second enclosure was actually built within our enclosure, so as when we did have children there or visitors, we could put Hank aside in a separate enclosure. MEMBER: But I m just asking, did did you undertake your own assessment of that before the Council did, or came long in in April and - -? MS BRADSHAW: Yes. Yes. We yes, we were very definitely very cautious of what I have always been cautious of Hank around (the) elderly or children, only for the pure fact that he is quite a large dog and quite boisterous, and I didn t I wouldn t want him to knock knock them over or you know, unintentionally 56 [26] The advice given to Ms Bradshaw by Mr Fry regarding the suitability of the enclosure was not the subject of oral evidence at the hearing. While Mr Fry s statement was before the learned member, he did not give evidence at the hearing. [27] It is, in our view, difficult to apprehend how the learned member came to conclude that Ms Bradshaw had not made the enclosure childproof until requested to do so by a Council officer. There was no evidence to support a finding that Ms Bradshaw was not entitled to rely upon what she had been told by Mr Fry in relation to the enclosure complying with the AM Act. The learned member made no findings nor did he express any view about whether Ms Bradshaw acted reasonably or otherwise in relying upon Mr Fry s advice that the dog enclosure as originally constructed was suitable. [28] In relation to the evidence at the hearing below regarding the actions by Ms Bradshaw to have Hank desexed, we note that the Council did not cross-examine Ms Bradshaw on this issue. The learned member questioned Ms Bradshaw about the reasonableness of her actions in relying upon the advice given by Mr Fry regarding the additional 3 month period within which to have Hank de-sexed. 57 Counsel for Ms Bradshaw raised concerns regarding the questioning by the learned member. 58 Ms Bradshaw gave the following evidence: MS BRADSHAW: To be honest, the Act reading the Act does not it is a little bit hard to understand from someone from a normal member of the public s point of view, so I was going by advice the Council officer, yes, who advised me yeah, so I just took his word as though that s what it was Transcript dated 21 December 2017, T1-16, lines Ibid, T1-15, line 5 to T1-16, line Ibid, T1-16, line Ibid, T1-15 lines

11 11 So yes, I I did read them and I that s why I asked the question from the Council officer expecting that what he told me was correct. 60 [29] Of the failure by Ms Bradshaw to have Hank desexed before being seized, the learned member found that it was not reasonable for Ms Bradshaw to have relied upon the advice she was given by Mr Fry regarding the extended time period for the desexing to be carried out. The basis for this finding was the receipt by Ms Bradshaw of the earlier written information notice issued by the Council. The learned member made no finding regarding whether Mr Fry was authorised (or not) to provide the advice he did to Ms Bradshaw. Indeed there was no evidence to suggest that Mr Fry was acting other than in accordance with his duties as a Council officer nor, in the proceeding below, did the Council contend for otherwise. There was, in our view, no evidence before the learned member to suggest that Ms Bradshaw failed to act reasonably in relying upon the information given to her by Mr Fry regarding having Hank desexed. [30] The learned member concluded that, as a result of Ms Bradshaw s lack of diligence in attempting to comply with the conditions applying to the dangerous dog declaration, it was more likely than not that Ms Bradshaw would not be compliant with the conditions applying to the dangerous dog declaration. In our view, the evidence before the tribunal did not support this conclusion. The uncontested evidence was that, in relation to both the requirement to have Hank desexed and the requirement to have a childproof dog enclosure, Ms Bradshaw had acted in accordance with advice given to her by Mr Fry, an authorised Council officer. [31] We are cognizant of the advantage the learned member had in hearing the evidence and seeing the witnesses. As we have observed however, almost none of the evidence below was contested. The conclusion that Ms Bradshaw was unlikely to be compliant with the conditions applying to the dangerous dog declaration was essentially an inference drawn from facts that were not seriously, or at all, in dispute. In Paterson v Paterson 61 the High Court held:... the distinction was emphasised by the Judicial Committee between cases where the result depends upon a view taken of conflicting testimony and cases where it depends upon inferences from uncontroverted facts: Dominion Trust Co. v New York Life Insurance Co. (1919) AC 254. In Mersey Docks and Harbour Board v Procter ((1923) AC 253, at pp ), Viscount Cave referred again to the subject and said that it was the duty of a court of appeal to make up its own mind, not disregarding the judgment appealed from and giving special weight to that judgment in cases where the credibility of witnesses comes in question but with full liberty to draw its own inferences from the facts proved or admitted. The distinction between inferences from fixed facts and findings based on testimony frequently recurs. In Cooper v General Accident, Fire, and Life Assurance Corporation Ltd ((1922) 128 LT 481) Lord Cave said: 'The question is, not what are the facts, but what is the proper inference to be drawn from the facts proved, and upon that point, as has been often said, the appellate tribunal is not less competent to judge than the judge who actually hears the case (1922) 128 LT, at p.483).' 60 Ibid, T1-16 lines (1953) 89 CLR 212.

12 12 [32] In our view, a consideration of the evidence leads us to conclude that it did not justify a finding that it was more likely than not that Ms Bradshaw would not be compliant with the conditions applying to the dangerous dog declaration. [33] We are satisfied that Ms Bradshaw has established an error of fact by the learned member. Ground 3 of the grounds of appeal is made out. Leave to appeal is granted. Rehearing [34] We will now proceed to decide the appeal by way of rehearing as required by s 147(2) of the QCAT Act. The rehearing is not a hearing de novo. As was observed in Harrison and Anor v Meehan: 62 The Appeal Tribunal must make its own determination on the material before the Tribunal below (supplemented, if necessary by additional evidence if permitted under s 147(2)) with due respect for the findings of fact of the primary Tribunal, and due consideration of the advantages enjoyed by it. [35] We have adopted the primary findings of fact made by the learned member except where a finding has been challenged in the appeal or where there is doubt as to the correctness of a finding. The rehearing is conducted on the record of the proceedings before the tribunal below. [36] We agree with the learned member that the threat to be addressed is that of a sudden and unprovoked attack by Hank causing serious injury to members of the community. [37] We have traversed in some detail in these reasons the evidence before the tribunal in relation to the steps taken by Ms Bradshaw to comply with the requirement to have Hank desexed and the requirement for a childproof dog enclosure at Ms Bradshaw s residence. In our view, the steps taken by Ms Bradshaw were reasonable in light of the advice she had been given by Mr Fry. In relation to the issue identified by Mr Jensen in relation to the dog enclosure, we are satisfied that on the uncontested evidence Ms Bradshaw acted promptly to address the gaps in the fence palings. In our view the evidence supports the conclusion that it is more likely than not Ms Bradshaw will be compliant with the conditions relating to the dangerous dog declaration. [38] It is relevant that there is no evidence of an attack or aggressive behaviour by Hank in the period between the date of the incident involving the child and the time the dog was seized. The uncontested evidence is that there had been no incidents involving Hank prior to the subject incident and in the period thereafter until he was seized by the Council. There is no evidence as to the mechanism of injury to the child s face and, although it cannot be disputed that the injury to the child was unquestionably serious and traumatic, there is no direct evidence that Hank acted in any way aggressively toward the child or any other person at the time of the incident. There is no evidence that Hank had otherwise, at any time, exhibited aggressive behaviour or attacked any person or animal. [39] As we have observed, the AM Act is primarily directed towards the effective management and responsible ownership of dogs. The destruction of a dog is a last resort. In our view, the evidence does not support a conclusion that the mechanisms in the Act for management have failed or been ineffective nor are we satisfied, on the 62 [2016] QCATA 197.

13 13 evidence, that the risk those mechanisms will be ineffective or fail in the future can only be addressed by the destruction of Hank. [40] As was held in Thomas, 63 the essential question is whether the dog constitutes, or is likely to constitute, a threat to the safety of other animals or to people, by attacking them or causing fear, to the extent that the threat may only be satisfactorily dealt with by the destruction of the dog. We are satisfied that the incident involving Hank was an isolated one and that Hank had not at any time otherwise attacked any person or animal or exhibited aggressive behaviour toward any person or animal, particularly children or other vulnerable persons. We are satisfied that Ms Bradshaw took reasonable steps to comply with the conditions relating to the dangerous dog declaration in light of the advice she had been given by the duly authorised council officers Mr Fry and Mr Jensen. We are satisfied that Ms Bradshaw will continue to comply with the conditions. We are not satisfied that the threat posed by Hank of a sudden and unprovoked attack causing serious injury to members of the community, can only be satisfactorily dealt with by the destruction of the dog. [41] Accordingly, in re-exercising the discretion we set aside the decision of the Moreton Bay Regional Council made on 23 May 2017 to issue a destruction notice in respect of the dog, Hank. [42] We would observe that, had we not proceeded to determine the appeal by way of rehearing on a question of fact or mixed law and fact, we would have been satisfied that ground 1 of the grounds of appeal had been made out. [43] A discretionary decision may only be appealed in accordance with the principles in House v The King. 64 An appellant must establish error by showing that the decision maker acted upon wrong principle; or gave weight to irrelevant matters; or failed to give weight or sufficient weight to a relevant consideration; or made a mistake as to the facts; or that the decision was so unreasonable or plainly unjust that it can be inferred that there has been a failure properly to exercise the discretion. [44] Unreasonableness is not to be equated with irrationality and an unreasonable decision can be valid notwithstanding that the underlying reasoning process was logically flawed. 65 [45] For the reasons we have set out it was, in our view, not reasonably open to the learned member to conclude that any threat posed by Hank could only be satisfactorily dealt with by the destruction of the dog. The decision of the learned member was, in our view and in applying the principles in House, so unreasonable or plainly unjust that it could be inferred that there was a failure properly to exercise the discretion. We would have set aside the decision under s 146(b) of the QCAT Act and substituted our own decision. We would have re-exercised the discretion in the same manner as we have done in the rehearing. [46] It is unfortunate that Hank has been impounded for such a lengthy period of time and it will obviously be necessary for Ms Bradshaw to be vigilant in ensuring compliance with the requirements of the dangerous dog declaration and ensuring that Hank does 63 Thomas v Ipswich City Council [2015] QCATA (1936) 55 CLR Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321.

14 14 not constitute, or be likely to constitute, a threat to the safety of other animals or to people.