Recently Russell Kennedy Lawyers were engaged by Glen Eira City Council (Council) in the matter of Musadeq v Glen Eira CC (Review and Regulation) [2023] VCAT 1235 in the Victorian Civil and Administrative Tribunal (VCAT) which set aside a declaration made by an authorised officer under the Domestic Animals Act 1994 (Vic) (Act) of Council which declared a dog ‘Angel’ to be a restricted breed dog namely a Pit Bull Terrier (PBT).
The decision confirms and follows on from a number of decisions by VCAT around a decade ago that unless the owner of a restricted breed dog accepts a declaration it is very difficult for the declaration to be affirmed on review in VCAT.
Background
Angel was seized on 25 November 2020 by an authorised officer of Council and assessed against Part 1 of the ‘Domestic Animals Act 1994 Standard for Restricted Breed Dogs’ dated 31 January 2014 (Standard). A full copy of the Gazetted Standard can be found at Attachment A of the decision.
The authorised officer of Council assessed Angel against the Standard and found that Angel was a PBT. It was the officer’s first and only assessment to date of a dog against the Standard.
The officer had completed a course of training approved by the Minister for the purposes of making declarations. The officer is not a veterinary practitioner.
The Standard contains a methodology for assessing whether a dog is a PBT with the first step being to determine whether any exemptions apply. The categories of exemption include that a dog has blue eyes; the colour of its coat being blue merle or pure white; and if the owner has one of the following certificates stating that the dog is an American Staffordshire Terrier (AST).
- a pedigree certificate from the Australian National Kennel Council;
- a pedigree certificate from a member body of the Australian National Kennel Council;
- a pedigree certificate from a national breed council registered with the Australian National Kennel Council; or
- a certificate signed by a veterinary practitioner.
If there is no exemption, step 2 is undertaken to determine whether the dog meets the ‘Cumulative Requirements’ and will be classified as a PBT if it satisfies:
Three or more of the ‘Conformation Criteria’;
10 or more of the ‘Physical Characteristics’;and
10 or more of the ‘Supplementary Characteristics’.
At all times the owner could have provided Council with one of the above exemption certificates.It was not until the morning of the hearing on 18 July 2023 that the applicant provided a certificate signed by a veterinary practitioner dated 12 July 2023 which stated the practitioner formed the view Angel was an AST based on his examination of Angel on 17 March 2022. The veterinary practitioner had 54 years of practice experience.
The Decision
The evidence was heard despite the certificate being provided, as there was some conjecture as to its validity. The lawyer for the applicant in his closing submissions stated that he had not been aware of the exceptions associated with the certificate and therefore he only sought it late in the proceeding.
Senior Member Dea confirmed she was required to make her decision on the balance of probabilities consistent with the standard discussed in Briginshaw v Briginshaw. That is she must reach a comfortable level of satisfaction in finding the matters proved on the balance of probabilities, consistent with the seriousness of the allegations and reflecting the serious consequences of any finding.
Both the authorised officer of Council and the veterinary practitioner gave evidence in relation to each of the criteria in the Cumulative Requirements.
Ultimately Senior Member Dea was comfortably satisfied that the certificate from the veterinary practitioner was compliant with the Standard and therefore found that Angel did fall within one of the exemptions, namely because Angel is an AST.
In relation to the certificate, the tribunal proceeded on the basis that the veterinary practitioner primarily determined Angel’s breed by looking at her and utilising his experience with dog breeds, including ASTs and PBTs.
Senior Member Dea confirmed that on a plain reading of the Standard, all that is required is for a veterinarian to ‘certify’ the dog is an AST. In doing so VCAT rejected submissions that any such certificate should have reference or reliance on pedigree which the preceding three certificates require.
Nonetheless Senior Member Dea also set out her conclusions on the application of the Cumulative Requirements in the Standard.
Conformation Criteria (5 criteria - if less than 3 Conformation Criteria met, the dog cannot be declared as a PBT)
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Authorised Officer
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Veterinary Practitioner
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Decision
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5 out of 5
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2 out of 5
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2 out of 5
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Physical characteristics criteria (19 criteria - if less than 10 Physical Characteristics criteria met, the dog cannot be declared as a PBT)
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Authorised Officer
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Veterinary Practitioner
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Decision
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17 out of 19
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8 out of 19
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8 out of 19
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Supplementary physical characteristics criteria (19 criteria - if less than 10 Physical Characteristics criteria met, the dog cannot be declared as a PBT)
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Authorised Officer
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Veterinary Practitioner
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Decision
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18 out of 19
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10 out of 19
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10 out of 19
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On each and every occasion where the veterinary practitioner disagreed with the authorised officer of Council, the tribunal preferred the opinion of the veterinary practitioner given his greater experience with examining dogs, including against the Standard.
Implications
At any stage, an owner of a declared dog may simply rely on a certificate of a veterinary practitioner stating a particular dog is an AST, including some 30 months after a declaration is made (as is the case in this matter). The certificate must be accepted and no qualification as to how the veterinary practitioner’s view was arrived at is required.
Should any Council declare a dog a restricted breed dog in the future, although not required under the legislation, it would be worthwhile asking the owner as soon as possible whether they rely on any of the exemptions, which may negate the need for a long protracted hearing.
At paragraph 36 of the decision Senior Member Dea stated:
As will become apparent, some of the criterion are uncertain and vague
This comment suggests the Standard as it is written is unworkable. It is generally accepted that as dogs present in all shapes and sizes, there will always be some uncertainty and vagueness, however Parliament should give consideration to drafting a more workable Standard which minimises such matters.
If criteria are uncertain and vague, on the balance of probabilities it is difficult for any tribunal member in assessing a dog to find that the criteria are complied with. Senior Member Dea notes in her decision numerous criteria which are vague and uncertain as well as noting where the Standard does not assist with a picture or diagram.
Where no exemption applies, it appears that unless a council has expert evidence from a veterinary practitioner who has significant experience which the tribunal can give significant weight to when assessing compliance with the Cumulative Requirements on the balance of probabilities it is difficult for the tribunal to make a decision affirming the declaration.
Where an authorised officer such as the council officer in this matter, who has completed the requisite training, makes a declaration but is faced with a veterinary practitioner giving evidence at VCAT, the veterinary practitioner’s evidence only needs to differ on enough criteria for the declaration to be set aside.
Councils across Victoria may wish to consider in due course making a submission to the relevant Minister about this decision and the workability of the Standard. Such submissions may extend to the Act as a whole given the well known shortcomings and complexity with other aspects of the Act.
Council in this matter should not be the subject of any criticism. The restricted breed dog laws are intended to protect the public from the inherent dangers posed by those dogs. In this case, despite the outcome, the Council fulfilled its statutory function in an appropriate manner.