4:02 PMHenry the Dog and the Manningham City Council - Jan 2013.
A former Councillor defends an elderly resident and her pet from the heavy handedness of council employees.
The following is a transcript of a question put to Council and the reply received during 'Questions from the Public' at the January 29, 2013 Ordinary Meeting of Council. I have included a full transcript so that you can see all the issues for yourself.
The case was settled by mediation.
This case never went to the Magistrates court.
The outcome was that the dog's owner had to pay for the injuries to the horses. And from now on, the dog needs to wear a muzzle when walked outside.
There are so many things wrong with this outcome, it is hard to list them all.
The council and the Domestic Animal Act 1994.
In the reply to the question at the January 2013 Council Meeting, the Council said it will look at breaches of the Domestic Animal Act and it's obligation for community safety. The Domestic Animal Act aims to prevent cats and dogs from being a nuisance and seeks to minimize attacks by dogs and cats on people and other animals.
Councils play a large part in enforcing this legislation. Under the provisions of The Domestic Animals Act 1994, all Councils in Victoria need to develop a domestic animal management plan and are required to review it every 4 years. This plan outlines the services, programs and policies the Council needs to establish to address the administration of the Act and the management of dogs and cats in the community.
Councils are also required to review this plan annually and publish an evaluation of the implementation of their plan in the Council's annual report. In this way the state government can assess the councils performance in this regard.
If an instance of a dog biting another animal or person were to go to court, it might give the impression that the council had not done a good job in implementing this particular piece of legislation. After all, the council has been charged with the responsibility of both minimizing attacks by dogs and then to have services in place to manage and resolve those instances when they do occur.
This issue was going to be heard in the Magistrates Court, then the Council decided to handle it themselves.
Since the incident involved horses, riders and injury to a person as well as a dog biting other animals, I would have thought that this case was more complicated and did not fall entirely under the Domestic Animal Act. The Magistrates court was probably the right place for this to be heard.
Our council was first going to have this case heard at the Magistrates court but later changed their mind. The question I have is, why the change?
It seems our council was quite determined to handle this themselves. However to do so, they needed to paint the entire incident merely as a dog attack on another animal. They had to minimize or dismiss the involvement of the horses and riders and any responsibility the horses and riders may have had in the injury of the elderly woman. The reason why they had to do this is because horses are not really addressed under the Domestic Animal Act.
And so, that is precisely what our council did.
First, during mediation, the council argued that it was in the nature of horses to be 'skittish' and easily frightened.
In mediation, the council put forward the argument that horses are 'skittish' animals that are easily frightened. That may be true. But I hope they had a bit more solid evidence than just their own personal view of the nature of horses. A personal view of one or more people may not carry that much weight in a court. And if this case went to court, that personal view would certainly be challenged.
Horses used by riding clubs and those owned by younger people are generally not 'skittish'. My daughter attending riding clubs between the ages of 8 and 16. Horses selected for these clubs, and indeed horses selected for young riders, are not the skittish type. The term that is applied to a calm, hard-to-frighten horse is 'bomb proof'. And these 'bomb proof' horses are the type recommended for younger riders. Anyone who has a nervous or aggressive horse and rides this animal in public parks, trails, etc. where they are likely to meet cars, dogs, other people, is simply not being responsible. In fact, they are asking for trouble.
So the excuse the council employees came up with, could be seen as uninformed opinion.
Second, during mediation, the council argued that signs were deficient and did not clearly indicate the use of the path.
Unfortunately the council is being very tight-lipped over this whole matter and it is hard to get all the details. But from what I can find out, the council said that signage in the area was inadequate and did not indicate that horses should not be ridden through a off-lead area for dogs.
It appears that our council is so desperate to get the horses out of the picture, so they can apply their Domestic Animal Act and the procedures they put in place, they are prepared to say that they were partially at fault by not putting up adequate signs. For our council to admit this, they must really want to use their Domestic Animal Management procedures.
Again this excuse is a bit of a stretch.
From my experience with pony clubs, trail rides and horse ownership issues, horse owners and riders need to check where they can ride their horses. The situation with horse riding is that there are more places you cannot ride a horse than you can ride a horse. And, when my daughter attended horse riding centers, if you were to ride your horse in certain places, your animal can be impounded or even destroyed. Riders typically check when they are not sure. If people were riding horses along a trail, then you can be reasonably sure that someone checked with the authority beforehand or it was common knowledge among horse riders they were allowed to ride there.
The issue is not the signage. There is not that much signage around as to where horses can and cannot be ridden. The issue is, were the horses allowed there? If they were not, then the horse riders should be prosecuted and held responsible for the accident. If they were allowed to ride there, then their contribution to the accident needs to be looked at in a balanced way.
Our council concludes that the horses and riders were not at fault, only the dog and the owner was.
Why is our council so eager to remove all responsibility from the horses and riders and prosecute the dog and dog owner?
If the dog owner is responsible for the injuries her dog caused to other animals, aren't the owners of the horses responsible for the injury they cause to people? Surely if someone cannot sufficiently control a horse and it causes injury to a person, the person in charge of the horse is responsible.
The dog's owner had her dog on a lead in an off-lead area. She only let go of the lead after one of the horses knocked her down. The incident that preceded and caused the entire problem was an elderly woman being struck down, injured and hospitalized by runaway horses. Normally, this would be considered carefully. Any reasonable judge would have considered this first and foremost in the light of relevant laws.
But not our council. They simply dismiss it and ignore it , so they can be seen to use their Domestic Animal Management plans.
Our council puts subtle pressure on an elderly woman to accept their findings.
The Council kept the dog impounded until the matter was resolved.
This may not seem much, but for an elderly person and her pet, this action by the council asserted a subtle pressure. The dog was in the pound for months.
The dog's owner could have taken the matter to court and and she probably would have won. But the process could have taken up to a year or more. And during the whole time her pet would be in the pound in the care of strangers who showed no sympathy at all to her cause or her arguments.
If you read the speech above, you will see that Council officers (which may have included the pound manager), believed from the outset that the dog was the problem. Would you leave your pet in the hands of people with such a disposition toward it?
This would have presented a constant worry to the dog's owner. In fact, it was quite a manipulative course of action for the council to take.
You will note that they did not impound the horses. They could have, if they wanted to.
The Council and the State Government.
We need to remember that the State Government is keeping a watch over how each council implements the Domestic Animal Act. The state government wants to know each council's performance in this area and each council needs to report back to the state government annually.
Councils look good when they keep their domestic animal management plans up to date and relevant to the needs of the municipality. They look good when they are able to handle domestic animal problems themselves. Each council's domestic animal management plans is meant to be comprehensive in nature and regularly reviewed to ensure they address specific animal management issues in their municipality. If cases go to court, then questions may well be asked about how comprehensive are the council's plans and how well are they tailored for their specific municipality.
Also, if a council were to hand-ball domestic animal problem to the courts, as they were initially going to do, then it could be said that they are avoiding their role in implementing this law. A council would look good, if they could keep cases out of the courts and handle it them themselves.
I suggest that the council reasoning went along lines similar to these. After weighing up how they would look if the Magistrates Court needed to hear and resolve the problem, they decided to manage the problem themselves. Their primary objective was very simple, to look good to superiors in the state government and to ensure their management of the Domestic Animal Act would not be questioned.
A corruption of the very reason for having laws.
If I am right on this matter (and I think I am) then the self-interest shown by our council undermines the legal processes that, for many of us, are a last resort in sorting out problems.
Most people go to court expecting it to be fair, reasonable and just.
However, if you go to a court where the primary interests of the judge are his or her own self interest and you find yourself bullied and manipulated during the case so that the judge will look good, what would you think of the legal process?
This whole incident is a good example as to why public servants and council bureaucrats should not be the ones to apply law to other people. Public servants are nearly always thinking of their own self interests, their job, their retirement benefits. If some member of the public is dealt with badly or has to pay for damages when they should not, what does it matter to them. They are often making decisions just like this, and as Paul Keating used to say, the horse called 'Self Interest' always comes in first. Public servants make decisions with superiors looking over their shoulders ready to assess and criticize.
On the other hand, to assist the judiciary, there are laws restricting the criticism of judges. These laws are there for good reason. One of those reasons is for judges to be able to do the right thing, even when the right thing might not be popular.
What happened to this dog owner was nothing more than the mistreatment and bullying of an elderly woman, just so the council could look good to the state government. It can be argued that the law was not applied correctly. It could be argued that the elderly woman would not have been able to represent herself appropriately during council mediation. And it certainly appears to be the case that Manningham council is prepared to allow people, who have obviously breached the law, to get off scott-free just so they can look good to their superiors.
12 Feb 2013.
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