The Mount Waverley owner of a dog held on death row for more than a year has won a Supreme Court appeal which could save the animal’s life.
Kerser was 10 months old when he was seized by Monash Council officers in December last year after being identified as an unregistered American pit bull, a restricted breed dog banned under dangerous dog laws, and was scheduled to be put down.
Under the Dangerous Animals Act 2004, a “restricted breed dog” is one of five specified breeds including “American pit bull terrier (or pit bull terrier)”.
The dog’s owner, Jade Applebee, challenged the council’s decision at the Victorian Civil and Administrative Tribunal in February. The deputy president of the tribunal examined Kerser and upheld the council’s decision.
Ms Applebee refused to give up on her dog – which she says was sold to her as an American Staffordshire terrier – and went to the Supreme Court to try to save Kerser, but the judge there upheld the tribunal’s decision in favour of the council.
In June, the council gave Kerser a last-minute reprieve when Ms Applebee indicated that she would appeal her dog’s case to the Supreme Court’s common law division, judicial review and appeals list.
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The case was heard before Justice Michael Croucher who then overturned the decision by Supreme Court associate judge Rita Zammit not to allow Ms Applebee to appeal the tribunal’s original finding.
In his judgment handed down on Tuesday, Justice Croucher said Kerser had been seized by council officers on December 4 last year. The council gave notice to Ms Applebee a week later that Kerser had been declared an American pit bull terrier and had to be destroyed.
He said Justice Zammit erred in saying there were no grounds for appeal because the deputy president of the tribunal had decided Kerser was an American pit bull on the basis of “an overall impression” after viewing the dog.
“The deputy president approached the matter first by forming an “overall impression” of the dog in view of the criteria under the headings “General appearance and characteristics” and “Height and weight” and then by going on to consider the other criteria in the standard to test whether her overall impression was correct,” the judge said.
He said in his respectful opinion, there were several reasons why that approach was in error.
“I accept that it is not sufficient to form an “impression”, an “overall impression” or a “general impression” that the dog complies with the standard or any criterion within it.
“The deputy president said that, because of what she perceived to be differences in measurements of the dog, she was “left to rely on [her] overall impression of the animal rather than being assisted with precise measurements”, which, she said further, “is in keeping with the philosophy of the standard”.
Justice Croucher said the deputy president had to be “of the opinion” that Kerser was a restricted breed dog and an “overall impression” fell short of that criteria.
“In truth, her conclusion – whether it be described as being based on her own observation or an impression – could be no more than speculation. The tribunal’s ability to inform itself in any way it sees fit does not extend to engaging in guesswork.”
The judge set aside VCAT’s original decision and ordered the tribunal hear the case again.
On the Free Kerser Facebook page on Tuesday, Ms Applebee posted – “I have just won my appeal…!!!! Now we must go back to VCAT to win Kerser’s freedom.”
The page has more than 14,000 likes.
In a statement on its website under the heading, ‘Premier, fix this mess: your dog laws are unworkable’, Monash City Council described the state government’s restricted breed dog laws as unworkable and a “lawyers’ picnic” following Tuesday’s Supreme Court decision on Kerser.
Monash mayor Geoff Lake said the case had already cost Monash ratepayers $80,000 in legal fees while another similar case involving a dog named Rapta had cost more than $100,000.
Cr Lake said the council took no pleasure in prosecuting these matters but was required under the laws to seize and destroy restricted breed dogs.
“Ratepayers are being severely penalised for enforcing this government’s sloppy and unworkable dog laws,” Cr Lake said.
“After several years Minister Walsh (Nationals deputy leader Peter Walsh and Minister for Agriculture, Food Security and Water) has not been able to fix this mess. It’s now time for the Premier to intervene.
“We are all for protecting the safety of the community but lawyers are the only winners under the current laws. No one can have confidence in these laws.
“It is time for the state government and its Department of Environment and Primary Industries to get serious about protecting the Victorian community from dangerous dogs and enact laws which can actually achieve that.
“If the state government wants its poorly drafted dog laws defended, it should do it themselves in future. The residents of Monash and other councils should not have to keep paying for their lazy and half-baked law making.”
