Act Civil & Administrative Tribunal

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

GOLDSTRAW v REGISTRAR, DOMESTIC ANIMALS SERVICES AND ORS (Administrative Review) [2016] ACAT 86

AT 7/2016 and AT 12/2016

Catchwords: ADMINISTRATIVE REVIEW – dangerous dog licence – whether the premises are secure, adequate and appropriate

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 68

Domestic Animals Act 2000 ss 14, 22, 25, 26, 49, 49A, 50, 62, 64, 65, 83, 119, 120

Subordinate

Legislation: Domestic Animals Regulations 2001 s 7, 23, sch 1

Cases cited: Clare and Gilbert Valleys Council v Crawford [2005] SADC 135

Drake v Minister for Immigration and Ethic Affairs (1979) 46 FLR 409

Re Greenham and Minister for Capital Territory (1979) 2 ALD 137

Robertson v Domestic Animal Services [unreported, 20 August 2009]

Sarlija v Registrar, Domestic Animal Services [2012] ACAT 57

Shi v Migration Agents Registration Authority (2008) 248 ALR 390

Tribunal: Senior Member W Corby

Date of Orders: 2 August 2016

Date of Reasons for Decision: 2 August 2016

AUSTRALIAN CAPITAL TERRITORY )

CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 7/2016

BETWEEN:

BRENDA GOLDSTRAW

Applicant

AND:

REGISTRAR, DOMESTIC ANIMAL SERVICES

Respondent

AND:

BRUCE JNANI

First Party Joined

AND:

AMANDA MITCHENER

Second Party Joined

TRIBUNAL: Senior Member W Corby

DATE: 2 August 2016

ORDER

The Tribunal Orders that:

1. The respondent’s reviewable decision dated 24 December 2015 to issue a dangerous dog licence is set aside and a decision to refuse to approve the issue of a licence is substituted pursuant to section 68 of the ACT Civil and Administrative Tribunal Act 2008.

………………………………..

General President L Crebbin

for and on behalf of

Senior Member W Corby

AUSTRALIAN CAPITAL TERRITORY )

CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 12/2016

BETWEEN:

BRENDA GOLDSTRAW

Applicant

AND:

REGISTRAR, DOMESTIC ANIMAL SERVICES

Respondent

AND:

AMANDA MITCHENER

First Party Joined

AND:

BRUCE JNANI

Second Party Joined

TRIBUNAL: Senior Member W Corby

DATE: 2 August 2016

ORDER

The Tribunal Orders that:

………………………………..

General President L Crebbin

for and on behalf of

Senior Member W Corby

REASONS FOR DECISION

1. Brenda Goldstraw (applicant) and Amanda Mitchener, the 2nd Party Joined (2PJ), have applied to the ACT Civil and Administrative Tribunal (ACAT) for review of the Registrar of Domestic Animal Services’ (respondent) decisions on 24 December 2015 (the reviewable decisions) to approve two dangerous dog licences pursuant to section 25(1)(a) of the Domestic Animals Act 2000 (DA Act). The licences were issued to Bruce Jnani, the 1st Party Joined (1PJ) for his dogs ‘Ruby’ and ‘Max’ (the dogs).[1] The licences were issued with conditions.[2]

2. The decisions to approve the licences are reviewable by ACAT (section 118 of the DA Act and regulation 23 and schedule 1 item 6 of the Domestic Animals Regulations 2001 (DA Regs)).[3] There is no dispute that MsGoldstraw and Ms Mitchener have the right to apply to ACAT for review of the decisions pursuant to section 120(b) of the DA Act.

3. Ms Goldstraw’s and Ms Mitchener’s applications are in substance the same. Consequently in these reasons for decision, unless referring to some matter relating specifically to either Ms Goldstraw or Ms Mitchener, the term ‘applicants’ will be used to refer to them both. When referring to the ACAT member deciding the matter the term ‘Tribunal’ will be used.

4. The applicants seek orders that the reviewable decisions be set aside, and that the Tribunal substitutes the decision that Mr Jnani’s applications for dangerous dog licences be refused.[4]

Hearing

5. The matter was heard on 9 and 10 June 2016. Ms Goldstraw and Ms Mitchener were self-represented. Mr Jnani attended the hearing and was represented by MsWard from the Animal Defender’s Office. Ms Katavic of counsel appeared for the respondent, instructed by Ms Storey from the ACT Government Solicitor’s Office and Ms Perks from the respondent’s office.

6. On the morning of 9 June 2016 and before the hearing commenced at ACAT, a view was conducted at the premises where the dogs are kept and where MrJnani, his partner and Mr Jnani’s 20 year old son, reside (the premises). The Tribunal and all parties and/or, their representative attended. Mr Jnani and the dogs were not present initially to enable those present to inspect the enclosure the dogs are kept in, the backyard of and inside the premises. MrJnani and the dogs returned to the premises for the last part of the view. Those present at the view, except for Mr Jnani, also viewed the driveway and side fence area of MsMitchener’s property which is across the road from the premises. Those present, except for Mr Jnani, also attended at and viewed from the outside, the backyard area and front door area of Ms Goldstraw’s residence.

7. In its consideration of this matter the Tribunal has taken into account the documents tendered as exhibits and the tribunal documents filed by the respondent, which are the documents that the respondent has identified as being relevant to the reviewable decision. These will be referred to by page number (e.g. T1). The Tribunal also took into account the observations made at the view, the documents filed in ACAT since the application was made and the submissions made by the parties at the hearing.

8. Ms Goldstraw, Ms Mitchener and Mr Jnani gave evidence. Other witness statements were tendered as exhibits and relied on by the parties, however only Mr Bullivant gave oral evidence. Mr Bullivant is a dog behavior specialist and gave evidence on behalf of the respondent.

9. Mr Bullivant inspected the premises on 6 May 2016 and provided a written statement. He also attended at the premises on 20 May 2016 to observe and provide some guidance to Mr Jnani in relation to his interaction with his dogs.

Background

10. Mr Jnani has two dogs, ‘Ruby’ and ‘Max’. Ruby and Max are Staffordshire Bull Terriers. Mr Jnani has been Ruby’s keeper since February 2014 when she was about five months old. Ruby is now about two years and nine months old. He got Max in June 2015 when Max was a pup. Max is now about thirteen months old. These are the first dogs Mr Jnani has owned.

11. Ruby was micro-chipped shortly after Mr Jnani bought her[5] and de-sexed on 6November 2015.[6] On 19 November 2015 Max was neither micro-chipped nor de-sexed. Neither dog was registered as at 19 November 2015 because MrJnani was not aware of this requirement.[7]

12. Following incidents on 19and 20 November 2015 Max and Ruby were seized by the respondent and impounded. Max was micro-chipped after he was seized and before being released to Mr Jnani on 24December 2015. Max is scheduled to be de-sexed on 5 August 2016.[8] MrJnani gave evidence that he had planned to have Max de-sexed and micro-chipped before Christmas 2015, but the events that followed 19 November 2015 meant this did not occur.

13. Shortly after he got Max in June 2015 Mr Jnani took him to ‘puppy training’. Ruby did not have training after she came into his care. He said she was ‘house trained’ when he got her. Neither the dogs nor Mr Jnani had attended any other dog training courses before 19 November 2015 and none since other than when Mr Bullivant attended on 20 May 2016.

14. Ruby and, from June 2015, Max resided together at the premises. In about August 2015 Mr Jnani constructed a purpose built steel framed and wire mesh dog enclosure (dog enclosure) that was attached to the back of the house at the premises. The dog enclosure had 1.8m high fences and a gate with a closing device. The dogs were kept in this dog enclosure when they were alone at the premises. The dog enclosure was intended to prevent the dogs from having access to, and digging up, the back yard.

Incidents on 19 and 20 November 2015

15. On 19 November 2015 and again on 20 November 2015 when Mr Jnani arrived home from work at about 3:30pm, he found both dogs outside at the front of the premises. On both occasions Mr Jnani returned the dogs inside. He could not work out how they got out of the dog enclosure or the premises. He concluded they had climbed the 1.8m wire fence and then somehow got out of the back yard.

16. When he found the dogs out the front again on 20 November 2015, he modified the dog enclosure by adding a slanted partial roof of metal mesh in an effort to prevent further escapes.

17. The Tribunal accepts that the dogs have not ‘escaped’ from the premises since 20 November 2015. When Mr Jnani found the dogs outside on 19 and 20November 2015, he was not aware of any incident having occurred involving his dogs.

Incident on 19 November 2015 at Ms Mitchener’s property

18. There is considerable evidence to suggest that Ruby and Max entered and were in the back yard of Ms Mitchener’s property on 19 November 2015. MsMitchener’s house is across the road from the premises. Two dogs matching the description of Ruby and Max were seen by a woman and her daughter in the back yard of Ms Mitchener’s property at around 3:30 pm.[9] The dogs were behind a white picket fence and gate which runs between the house and the side fence. The gate and fence block access to the back yard of the Mitchener’s property. It is not clear how the dogs entered the back yard, but it seemed that they could not get out. Ms Spurr let the dogs out of the yard and her daughter took photos of the dogs.[10] The photo was included in a Canberra Times online article on 25 November 2015.[11] Mr Jnani gave evidence that the dogs in the picture appeared to be his dogs.

19. Ms Mitchener’s dog, ‘Saphie’, a Pomeranian Chihuahua crossbreed, was found dead in the Mitchener’s back yard by Ms Spurr’s daughter shortly after the two dogs were released by Ms Spurr. Ms Spurr and her daughter had been caring for Saphie while Ms Mitchener and her family were away from Canberra.

20. After Saphie’s body was discovered, Ms Spurr sought assistance from another neighbour, Mr Hawke. Mr Hawke reported the incident to the respondent. MsSpurr’s daughter took photos of Saphie’s body. Although Mr Hawke did not see the dogs that had been in the back yard, he did see Saphie’s body and helped bury her. Mr Hawke and Ms Spurr in their written statements both observed that there was blood around Saphie’s neck.[12]

21. The report about the incident[13] was investigated by the respondent’s officers, but no specific finding or action was taken. It seems that the respondent’s officers took the view that no positive identification could be made of the dogs which had been in the Mitchener’s back yard, and it was not possible to confirm that those dogs had attacked or injured/killed Saphie. The Tribunal accepts that both Ms Spurr and her daughter saw two dogs in the Mitchener’s back yard where, a short time later, Saphie was found dead. At the time Ms Spurr’s daughter took photos of the dogs that were in the back yard.[14] Neither Ms Spurr nor her daughter was asked to attend the pound whilst Max and Ruby were there to see if they could identify them as the dogs seen on 19 November.

Incident on 20 November 2015 at Ms Goldstraw’s property

22. Ms Goldstraw and her family live in a property about 1.1 km from the premises. On 20 November 2015 the applicant’s 20 year old daughter, Isabelle, was home. The front door was open but the wire mesh screen door was closed and locked. Isabelle heard barking in the back yard. When she investigated she could see two dogs in a communal driveway on the other side of the paling fence that encloses the Goldstraw’s back yard. Isabelle moved the family’s two Chihuahua dogs ‘Jiminy’ and ‘Flea’ from the back yard into the house. She locked their dog door so they could not get out of the house into the back yard.

23. It was a hot day so Isabelle took water to the two dogs she’d seen. The dogs were still outside in the communal driveway. Isabelle said that when she gave the dogs water they were a little wary but not aggressive towards her. Isabelle took photos with the intention of posting the photos on a ‘lost dog’ website.[15] She left the dogs in the communal driveway and went back inside. Her dogs were still inside. Isabelle then heard the dogs she had seen in the driveway (later confirmed to be Ruby and Max) force entry to the lounge room of the home by breaking through the screen mesh of the locked screen front door. Ruby grabbed Jiminy in her mouth. Isabelle tried to remove Jiminy but was bitten and sustained an injury to her hand. Ruby would not release Jiminy. Isabelle was then worried about Flea because Max was wandering around the lounge room. Isabelle secured Flea in another room. Ruby then left, with Jiminy still in her mouth, through the damaged front screen door. Max followed and both dogs ran off.

24. Isabelle made distressed telephone calls to the applicant and her partner about these events. The partner came home and found Jiminy’s body in a grassed area near the home. Isabelle required medical treatment, including surgery, for the injury to her hand. These events were very distressing for Isabelle, the applicant and her partner. The incident was immediately reported to the respondent and an investigation was commenced.