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Can dog be saved?

Information to explain what can be done to challenge an order for dog to be destroyed.

The council or the court may make a decision to have a dog destroyed. Whether a dog owner has any success about changing a decision to have a dog destroyed will depend on what incident led to the decision and whether the dog had been declared to be dangerous before the incident happened.

A seized dog may be destroyed if:

  • the owner is allowed to collect their dog but does not do so within the specified time
  • an authorised officer reasonably believes that a dog, because of its behaviour or other circumstances, will cause imminent, serious injury or death to a person or other animal (usually in emergency situation where dog may be shot)
  • the dog cannot be identified and the dog was reasonably believed to be a danger to the public because it has caused or is likely to cause injury to a person or animal (after the dog is held for 48 hours)
  • dog found at large, is unregistered, owner cannot be found and dog is likely to attack
  • a vet has certified that the dog (or cat) should be destroyed on humane grounds
  • the dog is forfeited by the owner (who has unregistered breeding business)
  • a court finds an owner (or other responsible person) guilty of an attack offence of:
    • teaching a dog to attack
    • setting a dog to attack
    • or any one of the offences of biting, rushing at or attacking under section 29
  • the dog (or cat) bears no ID and is wild, uncontrollable or diseased
  • the dog (or cat) is found in an area that has been set aside for conservation or set aside by the local council, or
  • the dog (or cat) been abandoned while in the care of a boarding kennel (see below).

Also owners of commercial livestock (farmers) may destroy a dog or cat roaming at large near their livestock.

See 84O, 84TA, 84TB—Domestic Animals Act 1994 (Vic).

Restricted breeds and dangerous dogs

The council may destroy a dog that has been seized any time after seizure if:

  • the dog is a dangerous or restricted breed dog and council have refused to register the dog (after time for appeal has ended)
  • the dog is a dangerous dog whose owner has been found guilty of offences related to breaching conditions related to their control such as: warning signs, secure housing and warning collars
  • the dog is a dangerous dog, found a large (but not if caused by act or omission of person who is not the dog's owner)
  • dog's owner has been found guilty of training or setting a dog to attack, or dog attack offences, or
  • person handling the dog has been found guilty of dog attack offences.

See s. 84P—Domestic Animals Act 1994 (Vic).

If owner cannot be identified

If an authorised officer reasonably suspects an owner is guilty of failing to comply with any of the requirements for keeping a dangerous or restricted breed of dog, the dog may be destroyed if:

  • the owner does not provide their address—within 14 days of the notice of seizure, or
  • the dog or its owner could not be identified—within 8 days.

See ss. Part 3: Div 3 and Div 3B; 84Q, 84R, 84S, 84T—Domestic Animals Act 1994 (Vic).

If the decision to have an animal destroyed is made by a council

Unless the law specifically allows for a dog to be destroyed by the council (as is the case with an animal that is diseased and not able to be identified) the council must hold an animal until the court has made a finding of guilt.

The willingness of each council to destroy a dog varies from one council to the next. Some councils will not make the decision and will ask the court to make an order as part of the prosecution hearing.

If the council does make the decision then they have no obligation to review this decision. They must have a process for making a decision, but this procedure does not have to be made public.

This is an administrative decision and the council must make it according to principles of procedural fairness.

If the owner believes that the administrative decision was not made according to principles of procedural fairness they may seek a Judicial review of the decision in the Supreme Court.

See the 2009 decision of Tarasinski v Wyndham City Council [2009] VSC 109 (27 March 2009).

If the decision is made through a court order

If the person pleaded not guilty they may challenge the decision in the County Court. The owner has 28 days to lodge an appeal. The owner should get legal advice before they do this. It could be expensive because the owner may have to pay the costs of the council if they lose the case.

While the parties are waiting for the appeal to be heard, the dog will have to stay in K9 custody, under the control of the council.

Can the owner visit to dog?

It is up to the council's discretion as to whether the owner will be able to visit the dog. Most councils will not allow this, although some will. It is certainly worth asking. It will help if the owner can sound calm and composed when they are making the request.

If the owner intends to plead guilty

If they person intends to plead guilty they should consider thinking about all of the things that they will do to make sure that the their dog will not be able to attack again.

If the dog is declared dangerous, the owner will need to get a special enclosure. The specifications are set out in the regulations (see below). Find out about the sort of enclosure that is needed and work out where it will go and how it will be built. Find out about the kinds of dog behaviour and obedience classes that you and the dog can attend, sign up and commit to going. The owner will need to convince the magistrate that they are serious about protecting the community and that they have taken steps already to change the dog's behaviour. It might help. Get this underway before the matter goes to court. It may be something that can be discussed as part of a summary case conference negotiation.

Animal that is being boarded

The owners of a boarding kennel have the power to destroy an animal if they deem that this is necessary unless this power is expressly exempted in the boarding contract.

A boarding kennel may be able to destroy an animal that has been abandoned there by the owner, if the owner has not paid for the boarding services. These organisations may withhold the return of an animal while the bill remains unpaid. Under these circumstances the kennel must notify the owner and give them 14 days to respond.

Sell or destroy?

Sometimes the council will have discretion to sell an animal instead of destroying it. This depends on the situation and the kind of offence that the owner has been found guilty of and the category of the dog involved.

More information

Legislation

Domestic Animals Act 1994 (Vic)

  • s. 29—lists the circumstances where an owner may be guilty of a dog attack offence
  • s. 29(12)—a court can order a dog be destroyed by a council after finding a person guilty of an attack offence
  • s. 30—animal at large near farmed livestock
  • s. 31—animal at large in an area that has been set aside as a conservation area
  • s. 43—power of council to destroy an animal found at large in an area specified by that council
  • s. 64(4)—where destruction is deemed necessary and the animal is being boarded
  • s. 66(1)(b)—where animal has been boarded and the owner has not come to pay for the dog or cat, provided that they send a notice, letting the owner know of their intentions and giving them 14 days to respond
  • Part 7A—power to seize and dispose of dogs and cats
  • s. 84I—where an animal at large has been seized, owner notified and fails to respond within the time allowed
  • s. 84J—custody of animal that has been seized
  • s. 84O—power to sell or destroy dogs or cats seized
  • s. 84P(2)—says restricted breed dog must not be destroyed during the moratorium
  • s. 84S—council may destroy a dog that can't be identified if they can't find the owner and they believe the owner has committed an offence in relation to a dog attack or restricted breed, dangerous dog or breach of a court order offence
  • s. 84T—destruction of dog believed to be a restricted breed dog if owner unknown
  • s. 84TA—destruction of dog that is a danger to the public
  • s. 84TB—immediate destruction of dog that may cause serious injury or death
  • s. 84TC—destruction of declared dangerous dog found at large
  • s. 98—review of decisions by VCAT

See Domestic Animals Act 1994 (Vic).

Cases

Tarasinski v Wyndham City Council [2009] VSC 109 (27 March 2009)

Where a council decision to have a dog destroyed was overturned by the Supreme Court. The council officer did not, as he should have, informed the owner of the council policy.

Gubbins v Wyndham City Council [2004] VSC 238 (2 July 2004)

The council policy for making a decision to destroy a restricted breed dog is discussed in some detail in this case.

Related pages

Updated