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Henry 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.

"Thank you Madame Mayor, and my respect to Councillors. I will preface my questions by saying it comes with genuine respect to Council, and I believe in the interest of Council, that I ask this question. Are the Mayor and Councillors aware of an incident on the river path at Warrandyte in November [2012] in which a Manningham woman in her 70's was knocked down by one of three out-of-control horses? Also that this person, Mrs Richards, was injured requiring hospitalization and in fact was the only person injured in that incident. 

That even though it was declared an 'off lead' area, her dog 'Henry' was, in fact, restrained prior to the incident on a leash. And Henry, as some might be aware, seeing his owner knocked down and interpreting it, as you would, that she was under threat chased three horses, who were by then riderless, and bit at least two of them. 

Now the horses happily are recovered or are recovering from those injuries. But I am surprised and ask for Councillors to consider that with minimal inquiry, the relevant Council office has declared a firm intention to have the dog destroyed and have clearly advised the same to Mrs Richards and to myself and I believe to a briefing of this Council. Are Councillors aware that with similar minimal inquiry or justification, that prosecution has been issued against Mrs Richard, the one person injured? I hasten to say to you that I am not a party to those proceedings and so feel free to speak his mind. 

Are Councillors also aware that as recently as 10 days ago, well after prosecution proceedings have been put in place, that the relevant council officer has no idea, and said to me "He had no idea", whether horses and horse riders were allowed in that 'off lead' dog area? 

Councillors, is this not an issue? To be absolutely determined, before ... not only to know of councillors own responsibility ... for any rush to judgement on this very issue. Why has prosecution proceedings been commenced and a death sentence passed on a dog without this key information. And I am going to give my opinion, this has been typical of some seemingly very rash processes used in this case. 

Now I would also ask that if the councillors would individually, in their own research, perhaps care to go to the Manningham pound where the dog has been kept incarcerated for the last two months and assure themselves that this is not in any sense a dangerous dog. He is a loyal, active dog, a companion devoted to his owner. 

But this is not just a matter of sentiment, this is a matter of serious legal ramifications. I am going to ask, are councillors aware in just the last two days that in other councils, decisions have been challenged in matters concerning dogs and costs awarded against the council in excess of $200,000. Do Council and Councillors feel justified to hazard that sort of outcome here? And are councillors absolutely satisfied that at every stage of this process, that decisions made, including the promulgated, precipitous decision to euthanize the dog, have been justified? Are they concerned that these might not stand up in court? 

And I am going to say, would it not be a better course, and a wiser course, to withdraw the application while there is still time and to sit down in an unprejudiced inquiry and to find a way forward where, a shared pathway open to young riders on horses, dogs, children, walkers, swimmers, canoeists, cyclists can actually be managed without anyone necessarily being blamed. Thank you."

Mayor: "Thank you Mr. Ellis. Yes we are aware and it is in the court process and I think the Director of Planning and Environment would like to add some comments on that."

Director Planning and Environment: "Yes. Thank you Madame Mayor. Yes, Councillors we are aware of those facts ... Council does not take these issues lightly. And certainly the investigation that was done two months ago, looked at the evidence and believed that, in terms of all the witness statements, there was enough evidence. And Council, in terms of looking at breaches of the Domestic Animal Act and it's obligation for community safety, the best procedure was to go and have that, as you say, due process, at the Magistrates court and it has been listed for next week. That was seen as ... will determine the course and certainly any future decisions will be considered after the findings, and that submission would be seen as a process that will then continue on as a fair process. So there are no outcomes that have been decided. We have got a course of action that takes us through a process which is the course of action that is available to Council and is seen as the best process at this stage."

 

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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