A state government law designed to identify pit bull dogs under a new standard has survived its first legal attack, but not without some bite wounds.
A senior Victorian judge has affirmed a local council declaration that a dog called Brutus is a restricted breed - an American pit bull terrier - which now may lead to its destruction.
But Judge Marilyn Harbison has also questioned the ultimate effectiveness of the new law and expressed disquiet that the process that led to her decision required "detailed and difficult" analysis.
Judge Harbison, Vice President of the Victorian Civil and Administrative Tribunal, said it was her view that it is "unlikely that the new standard has reduced uncertainty" for owners or councils as to what constituted a dangerous dog.
She observed at the end of her judgment on Monday that it was unlikely the new standard would lead to reduced costs or reduced time in determining applications under the law.
Brutus' owner, Michael Rexter, appealed to VCAT an earlier declaration by Hume City Council that his dog was an American pit bull terrier, a restricted breed.
Barrister Simone Bailey, for Mr Rexter, sought a review of that decision under the Domestic Animals act, while counsel Trevor Wallwork, for the council, opposed it.
In her reasons, Judge Harbison noted that the question before her was not whether Brutus was an American pit bill terrier - defined by "common knowledge or show standards" - but whether he was deemed to be one by application of the new "standard".
She said a "determination as to whether the dog meets the cumulative requirements in the standard is to be determined on a commonsense basis".
"It is designed to be used by laypersons rather than experts in canine anatomy," the judge added.
Judge Harbison said both parties provided evidence of Brutus' points of "compliance and deviation" from the gazetted standard, with Mr Hexter calling a veterinarian and a dog show judge, while Mr Wallwork called two authorised council officers his opponent argued had no expertise in the field of their evidence.
After the evidence, which included visiting Brutus herself, Judge Harbison concluded that she had identified 12 "supplementary physical characteristics" that applied to him in making her conclusion.
She further commented that it was "regrettable" that the process "requires a great deal of detailed and difficult analysis".
"I make no comparison between the new and old standards," Judge Harbison stated. "However, I observe that in deciding these cases, an extraordinary amount of detailed analysis and argument about various aspects of a dog's anatomy is required."
She continued: "In my view, it is unlikely that the new standard has reduced uncertainty, either for owners or councils, as to what constitutes a dangerous dog, or that it will lead to reduced costs or reduced time spent in determining applications under this Act."
The judge further commented that the law required VCAT members to make "difficult distinctions about the bodily features of a dog based on loosely defined criteria".
"The task is not made any easier by being confronted with cases when the persons held out as experts on each side cannot even agree on basic measurements or proportions which underpin the application of the standard, or where the evidence presented appears to muddy the distinction between evidence of observation and truly expert evidence.
"This tribunal expects that expert witnesses called on to give evidence in these cases will be able to clearly demonstrate their area of expertise, as opposed to that part of their evidence which is merely evidence of observation.
"If the witness claims particular expertise, the tribunal expects that such a witness should clearly identify the basis of that expertise, concede areas of substantial agreement and offer robust and impartial opinions and observations."
Judge Harbison suggested that all witnesses required to examine a dog do so simultaneously and jointly report to VCAT.
Fairfax Media believes that Mr Rexter may seek to appeal the decision to the Supreme Court.