VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
ADMINISTRATIVE DIVISION
REVIEW AND REGULATION LIST	
vcat reference No. Z543/2019	
CATCHWORDS	
Domestic Animals Act 1994 (Vic), sections 14 and 17 – council decision to not register or renew registration of declared dangerous dog where repeated instances of failure to register and one breach of requirement for a dangerous dog to wear a prescribed collar at all times, including when inside an owner’s home – otherwise compliance with dangerous dog requirements including for enclosure – owner unable to pay registration fees due to financial hardship – adult son willing and able to register in his own name and pay fees.	
APPLICANT	Tracey Lee McDowell	
RESPONDENT	Mitchell Shire Council	
JOINED PARTY	Dean McDowell	
WHERE HELD	Melbourne	
BEFORE	A Dea, Senior Member	
HEARING TYPE	Hearing by telephone 	
DATE OF HEARING	25 March 2020	
DATE OF ORDER	6 April 2020	
CITATION	McDowell v Mitchell Shire Council (Review and Regulation) [2020] VCAT 439	
Order
1	Under section 60 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act), on its own initiative the Tribunal joins Dean McDowell as a joined party to this application.
2	Under section 51(2)(c) of the VCAT Act, the respondent’s 20 June 2019 decision to not register or renew the registration of a husky type dog Buddy (microchip number 956000002220530) under section 17 of the Domestic Animals Act 1994 (Vic) (DA Act) is set aside.  That decision is substituted with a decision that the respondent is to register or renew Buddy’s registration subject to the conditions that, within 30 days of today’s date, the DA Act section 14 application for registration is made by the joined party, that the application complies with the respondent’s section 14 requirements as to form and content and is accompanied by the required fee.
3	
The parties have liberty to apply as to the form of order 2 only.

A Dea
Senior Member			

APPEARANCES BY TELEPHONE:		
For Applicant	In person 	
For Respondent	Ms M McDonald, solicitor	
For Joined Party	In person	

Reasons
Overview 
1	On 20 June 2019, the Mitchell Shire Council (Council) made a decision to not register or renew the registration for Mrs Tracey McDowell’s husky type dog, Buddy.
2	That was not the first time Council had made a decision about Mrs McDowell and Buddy.  
3	As described in more detail below, Buddy was declared to be a dangerous dog in 2013 under section 34 of the Domestic Animals Act 1994 (Vic) (DA Act).  That followed proceedings in the Magistrates’ Court of Victoria where Mrs McDowell pleaded guilty to charges of being a person in apparent control of a dog that caused serious injury to an animal.  She also pleaded guilty to being the owner of a dog found to be at large outside the owner’s property and to having failed to register Buddy.  
4	On 11 July 2017, Council officers attended Mrs McDowell’s property because she had not renewed Buddy’s registration.  No one was home but the officers observed Buddy was inside the house but not wearing the prescribed collar dangerous dogs are required to wear at all times.  Council laid a charge against Mrs McDowell because of the breach of the collar related dangerous dog requirement and also for failing to apply to register Buddy and two other dogs on the property. 
5	On 11 September 2018, a Council officer again attended the property prompted by the fact Mrs McDowell had again failed to apply to renew Buddy’s registration.  Buddy was again seen inside the house and he was wearing the required collar.  The Council officer contacted Mrs McDowell who promised to pay the required fees shortly.  When the fees were not paid, Council again laid a charge against Mrs McDowell.  Mrs McDowell was again found guilty in the Magistrates’ Court.  She did not attend the hearing on 10 May 2019 because she was unaware of the time and date.
6	Unsurprisingly, by this stage, Council was frustrated with Mrs McDowell’s repeated non-compliance with her obligations as Buddy’s owner.  
7	On 23 May 2019, Council wrote to Mrs McDowell advising that it intended to exercise its discretion to not register or renew Buddy’s registration.  Mrs McDowell was given the opportunity to make submissions and she did so.  At the hearing, the decision to take this step was described as being a last resort.
8	Ultimately, after considering the history and Mrs McDowell’s submissions, Council decided not to register or renew Buddy’s registration on 20 June 2019.  As a consequence, Buddy has been unregistered since that time.
9	Mrs McDowell has asked the Tribunal to review that decision.  When deciding a review application of this kind, the Tribunal stands in the shoes of the original decision maker and is required to make a fresh decision taking into account all of the available evidence and material.  The Tribunal is required to consider all relevant circumstances and make the correct or preferable decision.
10	The hearing before me was conducted by telephone.  I heard submissions from Council’s solicitor, Ms McDonald, and I also heard evidence from Mrs McDowell and her son, Mr Dean McDowell.  Mr McDowell gave evidence because, as discussed below, within the family, Buddy is regarded as his dog.
11	After considering the submissions and evidence, I have decided to set aside Council’s decision and to substitute it with a decision that Council register or renew Buddy’s registration on condition that, within 30 days, the application for registration is made to Council by Mr McDowell and that he pays the required fees within.  
The DA Act
12	The registration of dogs is dealt with in sections 14, 15 and 17 of the DA Act. 
13	Section 14 says that an application for registration or renewal of registration of a dog or cat must be made to Council, in the approved form and be accompanied by certain information plus the relevant fee.
14	Section 15 gives Council power to fix fees to be paid for registration or renewal of registration.  In the case of dangerous dogs, the fee must be set at the maximum.
15	Section 17(1) of the DA Act says a Council may register or renew the registration of a dangerous dog and may impose conditions upon the registration of that dog.  It is the word ‘may’ which creates the discretion Council exercised in respect of Buddy and which is also available to me on review.  Section 17(1) allows for conditions to be applied to any decision to register or renew registration.
Council’s decision and submissions
16	Ms McDonald helpfully prepared written submissions which she addressed at the hearing.  As summarised below, they recount relevant background matters, the reasons for Council’s 20 June 2019 decision and the basis for it contending I should make the same decision as it did.
17	After giving notice of its intention not to register or renew Buddy’s registration, Council convened a meeting of its Animal Management Committee to consider the matter, including hearing a verbal submission from Mrs McDowell.  Two of the three members of that Committee recommended that Council refuse renewal of registration of Buddy.  Council’s reasons for adopting the majority recommendation were said to be as follows:
•	The failure to register or renew the registration of Buddy on multiple occasions;
•	The failure to comply with the requirements of owning a declared dangerous dog;
•	Being found guilty in the Magistrates’ Court on six separate occasions for failure to register or renew registration.  I note the materials before me show there were only three separate Magistrates’ Court proceedings about registration and they included five (not six) charges relating to registration, three involving Buddy and two for other dogs in 2017.
18	Council also relied on the following matters.
19	On 27 June 2013 Mrs McDowell failed to securely confine Buddy to her property and, while at large, Buddy attacked three sheep at a neighbouring property causing serious injury.  Three charges were heard and determined by the Magistrates’ Court after Mrs McDowell pleaded guilty.  The charges were as follows:
•	Dog attack on an animal causing serious injury (section 29(3) of the DA Act);
•	Dog at large between sunrise and sunset (section 24(1) of the DA Act); and
•	Failing to apply to register a dog (section 10(1) of the DA Act).
20	Mrs McDowell was fined an aggregate fine of $1,000 and ordered to pay statutory costs of $107.80, and $200.00 in compensation.
21	The Magistrates’ Court findings led to Buddy being declared to be a dangerous dog on 28 June 2013.  
22	Mrs McDowell did not seek review of that decision at the time.  Although she made submissions before me about what occurred in 2013, Mrs McDowell was aware I could not revisit the decision to declare Buddy to be a dangerous dog. 
23	Council also placed emphasis on the fact that, on or about 11 July 2017, Mrs McDowell breached the requirements for keeping a declared dangerous dog because Buddy was not wearing the required collar. 
24	Further, Council said Mrs McDowell had repeatedly failed to comply with the requirements under the DA Act to apply to register and/or renew the registration of Buddy.  
25	Council records show that Council first received an application for the registration for Buddy on 18 June 2013.  The DA Act requires that such applications are made before 11 April each year and so that application was late.
26	After that time, the records show the following: 
•	11 April 2014 to 10 April 2015 – no renewal of registration received;
•	11 April 2015 to 10 April 2016 – late payment received on 16 June 2015;
•	11 April 2016 to 10 April 2017 – no renewal of registration received
•	11 April 2017 to 10 April 2018 – late payment received on 8 August 2017 as a result of the Magistrates’ Court action referred to earlier; 
•	11 April 2018 to 10 April 2019 – no renewal of registration received; and 
•	11 April 2019 – no renewal of registration received.
27	Council contended that Mrs McDowell only complied with the initial requirement to apply to register Buddy in 2013 as a result of and in direct response to Council seizing Buddy following the sheep attack.  
28	Since then, Mrs McDowell had only applied for renewal of registration for Buddy twice, for the 2015/2016 and 2017/2018 years.  
29	In each case, the application for renewal of registration was said to be in response to and as a direct result of action taken by Council with respect to the care and control of Buddy.  Mrs McDowell had otherwise failed to apply for the renewal of registration for the other four years. 
30	Council drew my attention to one of the purposes of the DA Act which is to promote responsible dog ownership through the provision of a scheme for the registration and identification for dogs, which recognises and promotes responsible ownership.  By failing to comply with the registration requirements under the DA Act, Mrs McDowell was said to have failed to meet her obligations for responsible pet ownership.
31	Council emphasised the higher standard of obligations which fall on owners of declared dangerous dogs under the DA Act and the associated regulations.  They include the requirement that Councils must charge the higher registration fee for those dogs, which fee cannot be discounted or waived.  The additional requirements impose obligations on the owner to house the dog in accordance with the DA Act and the applicable regulations to ensure community safety by providing further measures of containment.  Council noted the purpose of those further obligations on owners of declared dangerous dogs are to protect the safety of the public.
32	As a result, Council submitted that Mrs McDowell had failed to comply with the obligations as an owner of a declared dangerous dog under the DA Act over a number of years.  It contended in those circumstances, I should affirm its decision.
33	At the hearing, Ms McDonald, Council’s solicitor, confirmed the required dangerous dog enclosure is in place at Mrs McDowell’s home.  She also confirmed that, other than the failure to have Buddy wear the collar inside in 2017 and the breaches of her registration obligations, as far as Council is aware, Mrs McDowell has complied with the requirements for owning a dangerous dog since 2013.
34	I asked Ms McDonald to tell me what the consequence would be for Buddy if I decided to confirm Council’s decision – that is, if Buddy remained unregistered.  
35	Ms McDonald said Council would be entitled to seize Buddy.  It would attempt to re-house him with a suitable owner who could comply with the dangerous dog requirements, whether by someone adopting or buying Buddy.  If re-housing was not an option, Council had the power to euthanise Buddy.  Ms McDonald quickly emphasised that was not the path Council wished or intended to go down.  As mentioned earlier, she said the decision not to register or renew registration was a last resort as Council believed Mrs McDowell had been given every opportunity to be a compliant owner and had failed to demonstrate responsible pet ownership. 
The evidence and Mrs McDowell’s submissions 
36	Mrs McDowell and Mr McDowell gave evidence via telephone.  Ms McDonald asked some questions of them but accepted she had no basis to dispute much of what was said.
37	In short, Mrs McDowell gave evidence that the registration fees were not paid in the past because she did not have funds to do so.  Mrs McDowell has been facing financial challenges since 2013 which have impinged on her capacity to meet a range of financial obligations including Buddy’s registration fees.  As I understood it, she has been declared bankrupt and she relies on her husband’s income.
38	When Council made its decision to not register or renew Buddy’s registration, that was the first time Mrs McDowell told her son Dean what had happened.  
39	They both gave evidence before me that was the first time he was aware Buddy was unregistered.  Mr McDowell is relevant because, when he was around 15 years old in about 2005, he brought Buddy home.  Although he was then too young to register Buddy or otherwise be the legal owner, at all times since Buddy has been considered to be his dog.  At that time the family lived in another area, moving to the Council shire in about 2013.  Buddy had been registered in the other council before then. 
40	Mr McDowell has been living away from home for a number of years and Buddy stayed with his parents during that time.  He returned to live at the family home in 2018 and intends to remain there indefinitely.  He gave evidence that, now he is aware of the circumstances as to Buddy’s registration, he will take on that responsibility.  He is working and can afford to pay the registration fees.
41	In correspondence to the Tribunal and in their evidence, Mrs McDowell, Mr McDowell and other family members referred to Buddy being an important part of the family.  Mrs McDowell’s letter said that, when Buddy was in the pound in 2013 after the sheep attack, the family visited daily and were distressed each time they left him.  The letters referred to the support Buddy provides to Mrs McDowell and how his presence assists her manage mental health issues.  It was apparent that the thought of Buddy being taken from the family and re-housed or worse was of grave concern.
42	Ms McDonald asked Mr McDowell about his current views of responsible ownership as compared to the past.  She referred to the definition of ‘owner’ in the DA Act which says such a person is one who keeps or harbours the animal or has the animal in his or her care for the time being whether the animal is at large or in confinement.  She contended that, on his evidence, Mr McDowell had been an owner of Buddy since he returned to live with his parents in about September 2018.  In those circumstances, she asked why he had not taken steps to ensure Buddy was registered earlier and so queried whether he could be regarded as a responsible owner of the kind the DA Act promotes.
43	Mr McDowell replied to the effect that he simply did not know the financial pressures on his mother meant Buddy was not registered and had he known, he would have acted sooner.  Mrs McDowell confirmed she had kept that information from him until mid-2019. 
44	Mr McDowell’s evidence raised one matter of concern:  in a letter dated 17 October 2019 sent to the Tribunal (apparently directed towards Council), Mr McDowell said that, if Council decided not to register Buddy, he would move out of the area and take the dog with him.  He repeated those sentiments before me.  It appeared Mr McDowell was under the impression that the dangerous dog declaration would have no effect in another council area or shire.  
45	That impression is incorrect.  
46	Section 34(4) of the DA Act says a dangerous dog declaration has effect throughout Victoria and cannot be revoked, amended or otherwise altered.  That means it applies throughout Victoria for the life of the dog.  
47	The declaration also applies irrespective of ownership.  Section 37A of the DA Act says a person must not sell or give away a dangerous dog to another person or otherwise transfer the ownership of a dangerous dog to another person unless they have first advised that person in writing that the dog is a dangerous dog.
48	Section 37(2) of the DA Act requires the owner of a declared dangerous dog to notify the relevant council or shire if their address changes.  
49	Part 3A of the DA Act contains provisions relating to a register of dangerous, menacing and restricted breed dogs.  The Secretary of the Department of Economic Development, Jobs, Transport and Resources is required to hold that register and Councils are required to provide information about declarations which is then to be entered into the register.  
50	Other councils and council officers can inspect the register.  
51	As well as providing details about any dangerous dog declaration it makes, section 44AG says that a Council which declared a dog to be dangerous must also notify the Secretary of the: 
•	Details of any change in ownership of the dog; 
•	Details of any change in the address of the owner of the dog; 
•	Details of any change in the place where the dog is kept; and 
•	Details of any change in the municipal district in which the dog is kept.
52	I mentioned some of these matters at the hearing but have set out this level of detail to ensure Mrs McDowell and Mr McDowell are in no doubt that a move of location will not change Buddy’s dangerous dog status or change their obligation to register him and pay the appropriate fee.  These provisions also demonstrate that, being the owner of a declared dangerous dog is not only onerous but permanent, irrespective of where the owner and dog lives. 
Decision
53	Having heard evidence from Mr McDowell, I am satisfied he is now aware of his responsibilities as a dog owner and that he intends to exercise those responsibilities from now on, including ensuring compliance with the dangerous dog declaration at all times.
54	As set out earlier, section 17 of the DA Act says Council may register or renew the registration of a dog and impose conditions upon the registration of that dog.  As required by section 14, registration can only be effected after the owner makes an application to Council in the approved form and accompanied by the required fee. 
55	Section 51(2)(c) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act) gives me the power to set aside Council’s 20 June 2019 decision and make another decision in substitution for it.  
56	I have decided to take that course and the order I have made in substitution is that Council is to register or renew Buddy’s registration subject to the condition that, within 30 days, the section 14 application for registration is made by Mr Dean McDowell, that the application complies with Council’s section 14 requirements as to form and is accompanied by the required fee.
57	If Mr Dean McDowell does not take those steps and so the condition is not complied with, Council will not be required to take any steps towards Buddy’s registration.  That would mean he remains unregistered and is at risk of seizure as discussed earlier.  I make these comments to ensure Mrs McDowell and Mr McDowell are well aware of the consequences of a failure to act. 

A Dea 
Senior Member