This is an update to our continuing coverage of Kerser, a dog who was seized by Monash animal control officers in December because he resembled a banned breed. In April, we learned that the Monash council’s designation of Kerser as a “pit bull” was upheld by the Victorian Civil and Administrative Tribunal (VCAT), and Kerser’s owner, Jade Applebee, had until May 1 to decide if she would appeal that decision to the Supreme Court.
We have now learned that Ms. Applebee is preparing to appeal VCAT’s decision that backed the council’s finding Kerser is a pit bull, and Monash taxpayers are facing the possibility of another $100,000 Supreme Court battle over the classification of a pit bull terrier. Monash mayor Micaela Drieberg said that appeals can only be made on the grounds that there was an error in law, and because the city hasn’t received the paperwork yet, they don’t know what the alleged error is. However, Mayor Drieberg indicated that the council is anxious for the government to change the legislation “so councils don’t have to carry so much legal responsibility.” Under Victoria’s dangerous-dog legislation, councils have the power to seize unregistered, restricted breed dogs and destroy them if they are found to match the standard characteristics of the breed.
If you recall, Kerser’s designation came despite a December Supreme Court ruling that slammed the process by which the Victorian government identifies pit bulls. The Court ruled that the Victorian Civil and Administrative Tribunal (VCAT) made an error of law in ruling that two dogs were American pit bulls. In addition, the judge ruled that the physical characteristics of a dog must have a closer association with government guidelines for dangerous breeds. The Supreme Court’s ruling highlighted the difficulties in identifying dogs believed to be American pit bull terriers, and was considered to be a blow to the laws introduced in September 2011 that require “pit bulls” to be registered, microchipped, spayed/neutered, and muzzled when in public
At Kerser’s hearing in February, the VCAT tribunal heard testimony that officers seized Kerser in December when they were called by a man complaining that two dogs had broken into his backyard from a neighboring property. During the two-day hearing, three Monash animal management officers testified that Kerser was a restricted breed. This determination was made by visual identification, as well as measurements by tape measure of the dog’s head, eyes, cheeks and neck (the tribunal’s actual findings in this regard are included below).
Interestingly enough, the tape measurements indicated that Kerser was not a pit bull, but the animal management officer simply stated that the dog can have “flaws,” and the measurements don’t necessarily mean the dog is not a “pit bull.”
In April, VCAT upheld the declaration by the Monash Council that Kerser is a “pit bull.” In the tribunal decision, VCAT Deputy President Heather Lambrick rejected testimony by Lynne Harwood, the expert witness of Kerser’s owner. Ms. Harwood, an international dog judge, argued that the council’s animal officers had erred in their measurements of Kerser.
But Deputy President Lambrick found that Kerser’s head, muzzle, skull, body and eyes matched the pit bull standard as outlined under Victoria’s restricted breed laws. (i.e., the very same outline that was harshly criticized by the Supreme Court in December.)
Specifically, Ms. Lambrick stated:
“The overall impression of Kerser is one of compliance. He may not be a perfect example of a pit bull. However, such a dog probably does not exist … Even in the areas where he does not meet the standard to a substantial degree, he meets the standard to some degree and importantly in the areas of musculature and strength.”
Just four months after the town of Monash was ordered to pay more than $100,000 in legal fees and pound costs in a similar case involving a dog misidentified by her town officers, Monash Mayor Micaela Drieberg stated she is aware of the “heavy responsibilities when it comes to identifying pit bull dogs,” and that the declaration is made only if they are sure the dog is a member of a restricted breed.
The case is unlikely to be heard for several months until after a directions hearing, and we will continue to watch the case for updates.
Previous posts on Kerser: