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SUPREME COURT OF QUEENSLAND
CITATION: Kylie Louise Chivers v Gold Coast City Council [2010] QSC
98
PARTIES: KYLIE LOUISE CHIVERS
(applicant)
v
GOLD COAST CITY COUNCIL
(respondent)
FILE NO/S: BS6396/07
DIVISION: Trial Division
PROCEEDING: Application
DELIVERED ON: 6 April 2010
DELIVERED AT: Supreme Court, Brisbane
HEARING DATE: 29 March 2010
JUDGE: Martin J
ORDER: APPLICATION DISMISSED
CATCHWORDS: ADMINISTRATIVE LAW – JUDICIAL REVIEW –
APPLICATION FOR DECLARATION – where respondent
decided that the applicant was keeping an American Pit Bull
Terrier and therefore contravened the relevant local law –
whether applicant was owner of the dog – whether applicant
had standing to seek judicial review
ADMINISTRATIVE LAW – JUDICIAL REVIEW –
APPLICATION FOR DECLARATION – where respondent
decided that the applicant was keeping an American Pit Bull
Terrier and therefore contravened the relevant local law –
whether an American Pit Bull Terrier is the same breed as an
American Staffordshire Terrier
Acts Interpretation Act 1954 (Qld)
Animal Management (Cats and Dogs) Act 2008 (Qld)
Customs Act 1901 (Cth)
Customs (Prohibited Imports) Regulations 1956 (Cth)
Judicial Review Act 1991 (Qld)
Local Government Act 1993 (Qld)
Local Law No. 12 (Keeping and Control of Animals) 1998
(Gold Coast City Council)
Statutory Instruments Act 1992 (Qld)
Subordinate Local Law No. 12 (Keeping and Control of
2
Animals) 2007 (Gold Coast City Council)
Parker v Annan [1993] SCCR 185
R v Knightsbridge Crown Court; ex p. Dunne [1994] 1 WLR
296
COUNSEL: S P Fynes-Clinton for the applicant
R J Bain QC and R Quirk for the respondent
SOLICITORS: Counsel directly briefed for the applicant
King and Co for the respondent
[1] This application concerns the fate of a dog called “Tango”. In 2004 the Gold Coast
City Council decided that Tango was an American Pit Bull Terrier and ordered that
he be destroyed. The applicant appealed that order. She and the Council reached a
compromise – he was not destroyed; but he had to leave the Gold Coast. The
applicant says that she has satisfied a particular term of the compromise and that
means that Tango should be able to come back to the Gold Coast. Whether he can is
the matter for decision..
Application for review
[2] The applicant brings her application under Pt 5 of the Judicial Review Act 1991.
She seeks:-
(a) a declaration that the keeping by the applicant of her dog “Tango” at her
home … , in the local government area of the City of Gold Coast, does not
contravene s 10 of the respondent’s Local Law No. 12 (Keeping and
Control of Animals); and
(b) an injunction restraining the respondent from seizing or otherwise
interfering with the dog “Tango” for so long as it is otherwise kept in
accordance with the respondent’s Local Law No. 12 (Keeping and Control
of Animals).
[3] The grounds upon which the application is brought include:-
(a) that Tango is of the breed American Staffordshire Terrier (“AmStaff”).
(b) that the evidence upon which the respondent Council purported to rely in
support of its assertion that Tango was an American Pit Bull Terrier
(“APBT”) was of no value because the assessment process used by the
respondent was incapable of identifying whether a dog was wholly or partly
of the breed APBT.
[4] The major issues are:
(a) who is the current owner of Tango,
(b) whether Tango is an APBT, and
© whether the APBT is a breed apart from the AmStaff.
3
[5] In April 2004 Tango was seized by the respondent Council and was made the
subject of a destruction order. That action was taken on the basis that he was an
APBT and, so, came within the provisions of the then relevant local law dealing
with the keeping of a prohibited animal.
[6] The applicant, who was then the owner of Tango, appealed against the destruction
order. In August 2004 that appeal was settled and a consent order was made by the
Magistrates Court in the following terms:-
“1. The appeal be dismissed.
2. Within 21 days the dog “Tango” be released by the
respondent to the appellant at a location outside the GCCC
jurisdictional area, the costs of transportation to be met by
the appellant.
3. The dog is never to be returned to the GCCC jurisdictional
area unless the appellant is able to satisfy the respondent that
the dog is a purebred American Staffordshire terrier.
4. Prior to the dog’s release to the appellant, the dog is to be
micro-chipped by the respondent at the appellant’s expense.
5. There be no order as to costs.”
[7] There was no jurisdiction to make orders 2, 3 and 4 but, for the purposes of this
application that is of no moment. Those orders represent, at least, the agreement
reached between the appellant and the respondent.
[8] This application was filed in July 2007. Since then there have been substantial
changes to the legislation relating to the issue of “restricted dogs”. As the applicant
seeks declarations as to current entitlement it is necessary to examine the current
legislation and other statutory regimes that apply.
Relevant legislation
[9] The Animal Management (Cats and Dogs) Act 2008 (“AMCDA”) commenced on 1
July 2009. One of the purposes of the AMCDA is “to provide for the effective
management of regulated dogs”.1
[10] The AMCDA does not prevent a local law from imposing (further) requirements in
relation to cats or dogs generally.2 A local authority may make a local law
prohibiting anyone in its local government area, other than an exempted person,
from possessing a dog of a particular breed.3 “Breed” includes crossbreed of a
breed, and “local law” includes a subordinate local law.4
1 AMCDA, s. 3(b).
2 AMCDA, s. 6(1).
3 AMCDA, s. 6(2).
4 AMCDA, s. 6(5).
4
[11] To the extent that the AMCDA and a local law are inconsistent, the local law is
invalid to the extent of any inconsistency.5 The AMCDA does not limit a civil right
or remedy that exists apart from the Act, whether at common law or otherwise.6
AMCDA, Chapter 4, Regulated dogs
[12] A regulated dog is a “restricted dog”.7 A restricted dog is, relevantly, “a dog of a
breed prohibited from importation into Australia under the Customs Act 1901
(Cwlth).”8
[13] The Customs (Prohibited Imports) Regulations 1956 (Cwlth), r. 3 provides:
“3 Goods the importation of which is prohibited absolutely
(1) The importation of goods specified in Schedule 1 is
prohibited absolutely.”
[14] Schedule 1 to the Customs (Prohibited Imports) Regulations 1956 relevantly
provides:
“Schedule 1 Goods the importation of which is prohibited absolutely
(regulation 3)
Item Description of goods
2 Advertising matter relating to any goods covered by this Schedule
26 Dogs of the following breeds:
(a) dogo Argentino;
(b) fila Brasileiro;
© Japanese tosa;
(d) American pit bull terrier or pit bull terrier;”
[15] The AMCDA provides:
“71 Permit required for restricted dog
A person must not, unless the person has a reasonable excuse, own,
or be a responsible person for, a restricted dog unless the relevant
local government has issued a restricted dog permit to someone to
keep the dog.
Maximum penalty – 75 penalty units.”
[16] Chapter 4, part 3 of the AMCDA deals with restricted dog permits.
Section 10 of Gold Coast City Council Local Law No. 12 (Keeping and Control of
Animals)
5 AMCDA, s. 6(3).
6 AMCDA, s. 7(1).
7 AMCDA, s. 60©.
8 AMCDA, s. 63(1).
5
[17] Section 10 of Gold Coast City Council Local Law No. 12 (Keeping and Control of
Animals)(“Local Law 12”) provides:
“10(1) A local law policy may prohibit absolutely:-
(a) the keeping of an animal;
(b) the keeping of particular species, breed, age or sex of an
animal;
© the keeping of an animal in an identified part of the Area; and
(d) the keeping of more than a specified number of an animal.
(2) A person must not keep an animal contrary to a prohibition
mentioned in subsection (1).
Maximum Penalty: 50 Penalty Units”
[18] The Gold Coast City Council Subordinate Local Law No. 12 (Keeping and Control
of Animals) 2007 (“Subordinate Local Law No. 12”) relevantly provides:
“24 Prohibition on keeping of restricted dogs – Local Law, s10(1)
(1) A person must not keep a restricted dog in the local
government area of the local government.”
[19] There are a number of exceptions to the prohibition in s. 24(1) of Subordinate Local
Law No. 12. None of those is asserted in the Application to be applicable.
[20] Section 3 and Schedule 1 to Subordinate Local Law No. 12 provide for the
definition of particular words used in Subordinate Local Law No. 12. Schedule 1
provides:
“restricted dog has the meaning given in section 1193E of the Act.
Section 1193E of the Act provides that a restricted dog is a dog –
(a) of a breed as follows –
(i) dogo Argentino;
(ii) fila Brasileiro;
(iii) Japanese tosa; or
(b) of the type commonly known as ‘American pit bull terrier’ or ‘pit
bull terrier’; or ‘pit bull terrier’; or
© of a breed or type prescribed under a regulation; or
(d) that is a crossbreed, or the offspring of, a dog of a breed or type
mentioned in paragraph (a), (b) or ©, whether or not the dog
appears to be a dog of that type or breed.
Also, a dog is a restricted dog if it is the subject of a restricted dog
declaration.”
[21] That section was omitted from the Local Government Act 1993 on 1 July 2009, as
was the whole of chapter 17A. From that time, the definition of “restricted dog” in
the AMCDA has applied.9
9 Acts Interpretation Act 1954, s. 14H; Statutory Instruments Act 1992, ss. 7, 14, schedule 1.
6
[22] It follows, then, that an American pit bull terrier, or a pit bull terrier or a cross-breed
of one or other of them is a restricted dog the keeping of which is prohibited.
Ownership
[23] The respondent raised the standing of the applicant to bring the application and
argued that she was not, at the time of making the application, nor at the hearing,
the owner of Tango and that, therefore, she had no relevant interest upon which to
make her application.
[24] This submission was based upon the evidence contained in a series of documents
which made up Exhibit 8. The first was a facsimile transmitted by the applicant to
an officer of the respondent on 10 September 2004 following the “consent order”
referred to above. The body of the document reads:-
“To Geoff Irwin
Tango is now owned by Brian Jones. He has taken over the
ownership of the microchip and registered Tango in NSW. He will
be contacting you to arrange to collect Tango. I have attached copies
of the registration and microchip change of ownership.
Kylie Chivers”
[25] Attached to the facsimile was a document entitled “Declaration Change of
Ownership”. It appears to be a document relating to a micro-chip registry
conducted by a private concern. The document is signed in the appropriate places
by both the applicant and Brian Jones, the applicant’s step-father. The document
refers to the applicant as the previous owner and Mr Jones as the new owner. It is
dated 9 September 2004.
[26] The applicant was cross-examined and re-examined on this documentation. The
gist of her evidence was that she regarded Tango as her dog or her family’s dog.
There was no evidence that anything had changed since her statement to the Council
made in the facsimile of 10 September 2004.
[27] In re-examination the applicant was asked the following by Mr Fynes-Clinton:
“Having regard to what you were asked and what you have seen
about the involvement of Mr Jones, would you please explain to the
court the nature of your current interest in the dog Tango as at today,
29 March 2004? --- He is my dog. That’s why I am here, so I can
bring him home.”
[28] Tango has been living in New South Wales since 21 September 2004 when he was
collected by Mr Jones from Council officers. Ms Chivers gave evidence that she
has, since that time, paid kennel fees of approximately $17,000.00.
[29] In the absence of any evidence to demonstrate there has been a change in the
position since that notified by the applicant in September 2004, I find that the
applicant was not, at the time of making the application nor at the time of its
hearing, the owner of Tango.
7
[30] Should I be wrong in that conclusion I will consider the other matters raised in the
application.
What breed is Tango?
[31] It is reasonable to infer from the agreement which underlay the “consent order” that,
at that time, both the applicant and the respondent were of the view that an
American Pit Bull Terrier was not the same breed as an American Staffordshire
Terrier.
[32] That view appears to have been maintained by the Council (at least to the
knowledge of the applicant) until the hearing of this application when, in reliance
upon the expert evidence called by the applicant, it submitted that an ABPT is the
same breed as an AmStaff.
[33] The history of the dog is, in brief, that the applicant purchased Tango from her
brother. The applicant says that Tango’s sire (“Zeus”) and dam (“Jessie”) were
AmStaffs. Tango has never been registered but a full sister from her litter – “Miss
Maudi” – is registered as an AmStaff.
[34] A senior scientist at Genetic Technologies Corporation Pty Ltd undertook genetic
parentage testing of samples taken from Tango, Zeus and Jessie and formed the
view that Jessie and Zeus “qualify” with a reasonable level of scientific certainty as
the parents of Tango.
[35] I am satisfied that Tango is the son of Jessie and Zeus, that each of those dogs was
an AmStaff and that, in the ordinary course of events, Tango would be regarded as
an AmStaff. That, though, is not the end of the matter.
[36] Other expert evidence was called by the applicant from a Mrs Brashears and a Miss
Harvey. This was evidence which, as it turned out, was relied upon more by the
Council than the applicant.
[37] Mrs Brashears’s evidence (which consisted of an affidavit and a transcript of
evidence given by her in another case) was admitted pursuant to s 92 of the
Evidence Act 1977. Since making the affidavit and giving that evidence, Mrs
Brashears has passed away. There was no objection to the receipt of her evidence.
She was an experienced owner and breeder of AmStaffs and APBTs in the United
States of America. She was registered as a breeder with both the American Kennel
Club (“AKC”) and the United Kennel Club (“UKC”). Her evidence was that a dog
which is a purebred APBT is exactly the same dog in terms of genetic history and
make up as a dog which is a purebred AmStaff. She explained the reasons for the
difference in names in the following way:
“4. Based on information which can be obtained from the AKC
and UKC web sites, all of which is consistent with general
industry knowledge and understanding among Amstaff
breeders, and certainly with my own knowledge and
understanding:-
(a) the common origin of the two breeds arose out of
crossbreeding between the English Bulldog and one
8
or more breeds of English Terrier, in England, in the
early to mid-19th-century;
(b) these dogs began to make their way to the United
States in the later part of the 19th-centry, in which
country they become known as Pit Dog, Pit Bull
Terrier and, later, American Bull Terrier;
© the United Kennel Club in the United States first
recognised and registered the breed under the name
American Pit Bull Terrier in 1898;
(d) in 1936, the same dogs began to be accepted for
registration by the American Kennel Club under the
name Staffordshire Terrier;
(e) my understanding of the reason for this name change
is that:-
(i) while most of the ABPTs were used as farm
dogs, or fighting dogs, there was a group that
wanted to show their dogs in conformation,
which UKC did not offer – there was no UKC
breed standard at the time;
(ii) these persons tried to get AKC to accept them
for registration so they could show, and they
wrote the original APBT/Amstaff breed
standard for show purposes and proved pure
breeding, but AKC would not allow the name
due to the association with pit fighting;
(iii) for similar reasons, the AKC would not let
these persons use the name American Bull
Terrier either (one of the considerations) as
the white (Hinks) Bull terrier breeders did not
want them confused with their breed;
(iv) finally, the AKC agreed to accept the breed
for registration and showing under the name
Staffordshire Terrier, which the original
Amstaff owners accepted.
(f) in 1972, the AKC changed the name to American
Staffordshire Terrier, to avoid confusion with the
then newly accepted breed of Staffordshire Bull
Terrier.”
[38] Mrs Brashears then went on in her statement to give examples from her own
experience of a dog which she owned – “Presley” – which, in the AKC, won prizes
as an AmStaff and, in the UKC, won prizes as an APBT. Her evidence concluded
with the opinion that:
“Although different breeders of the respective breeds may select
different features for attempted emphasis for show judging purposes
through selective breeding, the two breeds are in all material respects
genetically and physically identical.”
[39] Evidence was also adduced by way of affidavit from Jane Harvey who has been
involved in dog exhibiting and breeding in Australia for over 58 years. She also
referred to the names used by the AKC and other kennel clubs and said:
9
“I am aware that, for some periods, the AKC has permitted dogs
which are registered with the UKC as American Pit Bull Terriers to
also be registered with the AKC as pedigreed AmStaffs. The two
‘breeds’ come from a common original breeding line, and are in that
sense the same dog.”
[40] None of the relevant laws or instruments, or the Commonwealth or State
interpretation Acts, provide a meaning for the term “breed”.10 The Macquarie
Concise Dictionary defines “breed” relevantly as:11
“Breed
6. Genetics a relatively ****geneous group of animals within a
species, developed and maintained by human intervention.
7. Lineage; strain.”
[41] The Oxford English Dictionary provides the following as a relevant definition of
“breed”:
“Race, lineage, stock, family; strain; a line of descendants from a
particular parentage, and distinguished by particular hereditary
qualities.”
[42] The determination of whether a dog is of a particular breed can be quite difficult.
There is, on the evidence before me, no satisfactory scientific method such as DNA
analysis which provides a reliable answer. The word “breed” itself has to be applied
carefully. To determine whether a dog is of a particular breed is, of course, a
question of fact.
[43] A breed of dog is not the same as a type of dog. In other jurisdictions the difficulty
of identification has been acknowledged. In Parker v Annan12 Lord Hope LJG said:
“There is an absence of any precise criteria by which a pit bull
terrier may be identified positively as a breed and by this means
distinguished from all other dogs. One must of course be careful
not to extend the application of the section to dogs other than those
which are described in it. A dog must be of the type known as the
pit bull terrier if the section is to apply to it. But the phrase used by
the statute enables a broad and practical approach to be taken, in a
field in which it has been recognised that the pit bull terrier cannot,
in this country at least, be precisely defined by breed or pedigree.”
[44] That passage was adopted by Glidewell LJ in R v Knightsbridge Crown Court; ex p.
Dunne13 who said:
10 cf. AMCDA, s. 6(5): “breed” includes a crossbreed of a breed.
11 Macquarie Concise Dictionary, Fifth Ed., 2009.
12 [1993] SCCR 185 at 190-191.
13 [1994] 1 WLR 296.
10
“…the word ‘type’ is not synonymous with the word ‘breed’. The
definition of a breed is normally that of some recognised body such
as the Kennel Club in the United Kingdom.”14
[45] In this case there is unchallenged evidence as to the identity of the APBT and the
AmStaff. The conclusion that I draw from that evidence is that the name “American
Staffordshire Terrier” is a name which was adopted in the United States of America
for purposes of promotion or other similar reasons and that that name was applied to
American Pit Bull Terriers. All the evidence points to the same dog being given
different names, that is, American Pit Bull Terrier or American Staffordshire
Terrier, so that a dog recognised as being of one of those “breeds” is the same as a
dog identified as being of the other “breed”. That practice appears to have been
adopted in Australia. It follows then that the views held by the Council when it
entered into the “consent order” were unfounded and that there is no difference
between an APBT and AmStaff. Therefore, as I am satisfied that the applicant has
demonstrated that Tango is an AmStaff it follows that Tango is also an ABPT and is
thus subject to the restrictions under the local laws referred above.
Conclusion
[46] The applicant is not the owner of the dog the subject of this application. The dog
“Tango” is an American Pit Bull Terrier and is, thus, subject to the Council’s
Subordinate Local Law No. 12 (Keeping and Control of Animals) 2007.
[47] The application is dismissed. I will hear the parties as to costs.
14 At 303.