First published SACAT dog and cat management decision a win for the Council: Ivka v City of Charles Sturt [2019] SACAT 5

Having taken over Dog and Cat Management Act 1995 (the Act) administrative appeal responsibilities from the District Court, the South Australian Civil and Administrative Tribunal (SACAT) has now published its first decision under the Act.

Norman Waterhouse was pleased to be involved in this proceeding, and is further pleased that the SACAT has upheld the original decision of our client. While the decision was a first due to its new forum, the decision also indicates that the SACAT will continue to follow the precedents already set down by the District Court.

Facts

Mr Ivka sought a review of a Control (Menacing Dog) Order (the Control Order) issued by the City of Charles Sturt. In particular, Mr Ivka sought that the Control Order be downgraded to a Control (Nuisance Dog) Order.

The facts which led to the Control Order are as follows:

• Mr Ivka had arranged for a car detailer (the Victim) to attend his premises.

• Mr Ivka advised the Victim the front gates were open, allowing the Victim to enter the premises while he attended to activities at the rear of the property.

• Upon arrival, the Victim approached and inspected the vehicle he intended to detail. After looking inside the vehicle, the Victim knelt to look at the underside of the vehicle.

• As the Victim proceeded to stand, a dog attacked without warning, inflicting bite wounds to the Victim’s face.

• For the purpose of the Act, Mr Ivka was considered to be responsible for the control of the dog at the time of the attack.

Hearing in SACAT

The SACAT reviewed the Council’s decision to issue the Control Order, and in doing so obtained additional evidence throughout the proceedings which was not available to the delegate at the time of making the original decision.

This matter turned on the proper interpretation of ‘menacing’. Importantly, following submissions made on behalf of our client, the SACAT followed legal precedents previously set down by the District Court, namely Clare & Gilbert Valleys Council v Crawford [2005] SADC 135 and Hastwell v The City of Holdfast Bay [2014] SADC 132.

Based on those precedents, the SACAT determined that the Control Order was appropriate, and that it would not be appropriate to replace the Control Order with a Control (Nuisance Dog) Order. The SACAT determined the dog to be ‘a menacing dog because he presents a real risk of harm to people.’ Accordingly, the Council’s original decision was upheld.

Norman Waterhouse is pleased to have assisted the Council in obtaining this positive outcome, in the first published decision of its kind. We are also involved in various other ongoing matters in the SACAT, and look forward to continuing to assist councils in navigating this new legal forum.