QLD Council - How to Rectify Issues with Neighbour's Dog?

[@thelawbundle]

Hi DaveK,

I'm not sure what you mean by "taking legal action" against the Council - steps 1-4 as I've outlined above fall within that category.

Do you mean that: you want to force Council to take action under the AMCD Act to declare the dog "menacing"?

If so, Danny Jovica has already mentioned a thing called "mandamus" (or an order in the nature of mandamus). You can look into that process further if you want to (see generally: the judicial review act 1991).

Personally, I think that would be a waste of time because Council is not obliged to do anything under the AMCD Act - instead, it may declare a particular dog to be menacing if particular criteria are fulfiled (see section 89 of the AMCD Act). Generally, mandamus is only useful to force a government body to do something that it is "obliged" to do by law.

What the real issue here is (in my view) is whether or not Council is properly exercising its discretion to not take further action against the owner. This is something that you can make a complaint about by following Step 2 (from my above comment) and then if you don't get the response you want - you can follow Step 1 and an external body will take up this issue with Council on your behalf and scrutinise their decision-making process.

As to your comment that: "Councils are loathe to get involved in legal action" I'm not so sure. I'm a government lawyer (particularly local government) and we are regularly in Court. In fact, my first ever case was a menacing dog declaration case in QCAT (which the Council lost by the way... It's more difficult than you'd think to persuade a QCAT member to declare a dog menacing - and I'm not just making excuses for myself!).

The point is - I would be surprised if Council hadn't already taken legal advice as to its position to declare the dog "menacing" in this circumstance. Council may be acting in accordance with that advice.

By following Steps 1, 2 & 4 above you may be able to confirm what steps Council has already taken (although of course, you will not be able to see the substance of any privileged legal advice).

Hope that helps.

 

[DaveK]

Thanks for your reply.

I contacted Queensland Ombudsman on 15 August and got "it appears the council has not yet reached a final decision about this matter. It would, therefore, be premature for the Office of the Queensland Ombudsman to investigate the matter at this time."

I just contacted them again, and got the same result.

If I follow your Step 2, I will then have another 5+ week delay, and then I will be able to do Step 1, asking QO for an external review, presumably at least another 5 weeks.

I can see that Council only MAY issue a Declaration of Menacing Dog, but surely there is a REQUIREMENT that they provide a safe environment for people? It is this duty that they are failing.

I have provided evidence that the threshold "Section 89 (2) (a) [the dog] has ... acted in a way that caused fear to, a person" has been breached, and they haven't acted. Is this dog, with its ear back, its back arched, its hackles raised and its tail flared not going to cause fear? The Local Law Officer says the dog is "over-friendly", as is reported in the first complaint, which is a joke. I've given Council 28 photos like this, all with dates and times, over a period of 5 months, and still the matter is "following process" and we won't talk about the process is.

Surely I have some recourse beyond yet another review? I'm getting desperate (as you can probably tell) !

 

[DaveK]

Not enough teeth showing to cause fear?

 

[Rod]

Then your other option is to take the owner and the council to court. Take lots of videos with you as evidence, and a plan of the house boundaries showing where the dog appears. Remember that the seriousness of the situation is also decided by you sitting back and just accepting the council's inaction. If you do nothing but complain they will not take you seriously. Write a final letter to council giving them 14 days to take action or you will take both the council and owner to court for creating and maintaining a dangerous situation.

The hackles are obvious, but video is better.

 

[DaveK]

I'm ready to do that, but what court, under what legislation, and looking for what remedy?

 

[@thelawbundle]

Hi DaveK,

I acknowledge that this must be a very frustrating process, and so I appreciate the desperation.

I note your comment about Council having a "duty". You're right that Councils can be found to owe a duty of care (if they are sued in negligence). The problem with that cause of action is that you need to establish a number of elements (including breach of that duty, and damage). That will be difficult at this stage.

You could join Council in an action similar to that which I mention in Step 5 above (a nuisance action) if you consider that Council is causing an unreasonable interference to your use and enjoyment of your property. You should take some advice as to your prospects with any such action though (because if you lose, you will likely be liable for legal costs). These are not actions which you can start in a small-claims tribunal for example, and I would recommend that you engage a barrister to advise on prospects, evidence requirements, appropriate orders and to settle the necessary court documents and appear at the hearing on your behalf (if they consider that you have good prospects).

To be able to brief counsel, you will likely need to engage a lawyer first (unless you know a barrister who would act on a direct brief). This can get expensive and as this is a civil matter, Legal Aid will not be available. If you cannot afford a lawyer, an organisation like QPILCH may be able to help you on a pro-bono basis. QPILCH has a network of lawyers and barristers available to it who are willing to take on certain civil matters, pro-bono. I have previously handled civil matters for QPILCH on a pro-bono basis with a barrister to appear at the hearings. QPILCH may also be able to assist you even if you choose to run this matter as a self-represented litigant.

Hope that helps.

 

[Rod]

@thelawbundle has made some good comments.

You'd go to the local Magistrates court.

Not sure what acts in QLD may apply. Certainly common law nuisance is available, probably the Animal Management (Cats and Dogs) Act 2008.

In Victoria there is the Environment Protection Act 1970, Domestic (Feral and Nuisance) Animals Act 1994 Act and the Public Health and Wellbeing Act 2008 which can used down here. Not sure what equivalents exist in QLD other than Common law nuisance and the Animal Management (Cats and Dogs) Act 2008.

Recommend you see a lawyer.

 

[@thelawbundle]

Thanks Rod.

Note though that in Queensland, depending on the order which you are advised to seek (which is likely to be injunctive or declaratory relief) you could be looking at District Court or Supreme Court jurisdiction. And given your location on the Cassowary Coast - you may need to wait a while to be able to bring this on (even longer than the 5-week complaint process that you mention).

Accordingly, don't neglect those complaint processes in the meantime. There are political repercussion for things like administrative action complaints (things like this often have to be reported to the State in Council's annual reports etc.). Your local councillor may also go into bat for you if you get into them about this. He who shouts loudest gets heard, and all that.

Cheers.

 

[DaveK]

Looking at the Ombudsman website:

QCAT and the Ombudsman

A member of the public may apply to both QCAT and the Ombudsman to help resolve a matter. However, the Ombudsman will generally not deal with a complaint where the person making it has some other right of appeal or review (e.g. by QCAT) and it would be reasonable to require the person to exhaust that remedy.
=====

Looking at the QCAT website, they deal with Animal Management (Cats and Dogs) Act. So after (Step 2) an administrative (internal) review, I should go to QCAT and ask for an external review?

I guess the issue would be that Council isn't meeting its responsibility to keep the public safe, by delaying making a decision that uses their powers under the AMC&DA to have the dog kept in an enclosure, (and failing that, to fine the owners, seize the dog, and ultimately have it destroyed). Even then, QCAT can only recommend to Council that a decision be changed/reversed/finalised. I don't know if Councils have ever refused to do so.

 

[Rod]

Not sure about in QLD, but in Victoria our equivalent tribunal VCAT can have its orders enforced by the magistrates court. If the Council fails to follow court orders then it becomes contempt of court with its own set of sanctions.

In your situation I think the review they talk about is the one you ask the council to do. If that review doesn't give the result you want, then go to the Ombudsman. A phone call to them should give you the answer as to whether QCAT or the Ombudsman is your next step.