Bransgrove v Hunters Hill Council - [2024] NSWSC 1683

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Bransgrove v Hunters Hill Council [2024] NSWSC 1683
Hearing dates: 31 December 2024
Date of orders: 31 December 2024
Decision date: 31 December 2024
Jurisdiction: Common Law - Administrative Law
Before: Cavanagh J
Decision:
(1) Noting the undertaking of the defendant, the defendant is restrained from destroying the plaintiff's dog 'Solo' until further order of this Court or the Local Court.
(2) Order 1 will only remain in place until 14 February 2025, provided that if the plaintiff has commenced proceedings in the Local Court by that time order 1 will remain in place until further order of this Court or the Local Court.
(3) The proceedings are otherwise dismissed.
(4) Until such time that the dog is released, or the defendant is permitted to destroy the dog, the defendant may keep the dog at any premises it sees fit without informing the plaintiff of where the dog is being kept.
(5) The solicitor for the plaintiff must not disclose where the dog is being kept to the plaintiff.

Catchwords:
ANIMALS – application under the Companion Animals Act 1998 (NSW) – interlocutory relief – whether dangerous dog declaration valid – whether procedural fairness afforded in making declaration.

Legislation Cited:
Companion Animals Act 1998 (NSW), ss 34, 51
Companion Animals Regulation 1998 (NSW), reg 32
Supreme Court Act 1970 (NSW), s 69

Category: Procedural rulings
Parties: Trevor Bransgrove (Plaintiff)
Hunters Hill Council (Defendant)
Representation:
Counsel:
S Berveling (Defendant)
Solicitors:
Benson Law (Plaintiff)
HWL Ebsworth Lawyers (Defendant)

File Number(s): 2024/00483637
Publication restriction: Nil

EX TEMPORE JUDGMENT

This matter comes before me today, on New Years Eve, on an urgent basis in my capacity as Duty Judge. Pursuant to a summons and then an amended summons filed on behalf of the plaintiff, the plaintiff seeks orders under s 69 of the Supreme Court Act 1970 (NSW) and under the Companion Animals Act 1998 (NSW) (“the Act”), preventing the defendant, the Hunters Hill Council (“Council”), from destroying his dog, Solo, until further order of the Court.
The plaintiff also seeks additional orders including that the defendant return the dog to the care of the plaintiff provided he constructs an enclosure that satisfies the requirements of s 51 of the Act and reg 32 of the Companion Animals Regulation 1998 (NSW) (“Regulations”).
On the hearing of this application, Mr Benson, solicitor, appeared for the plaintiff and Mr Berveling of Counsel appeared for the defendant.
As set out in the amended summons, the plaintiff seeks both final relief and interim relief. The plaintiff only seeks the interim orders today. In support of the application, the plaintiff relies on an affidavit of his solicitor, Mr Ian Colin Benson, dated 24 December 2024.
In essence this is an application by an owner of a dog to prevent the Council from having his dog destroyed, the Council having seized the dog in September 2024 and declared it a dangerous dog under the Act.
The background to the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NSWSC 1683
Decision Date: 31 December 2024

CaseChat Overview and Summary

The matter of Bransgrove v Hunters Hill Council involved a dispute between the plaintiff, Bransgrove, and the defendant, Hunters Hill Council. The plaintiff sought relief under the Companion Animals Act 1998 (NSW) after the council issued a dangerous dog declaration against her dog, which resulted in the dog being impounded. The dispute centred on the validity of the declaration and the procedural fairness of the council's decision-making process. The case was heard in the Local Court of New South Wales.

The primary legal issues before the court were whether the declaration issued by the council was valid under the Act and whether the plaintiff was afforded procedural fairness in the process leading to the declaration. The court had to consider the statutory requirements for making such a declaration and whether the council adhered to these requirements. Additionally, the court examined the nature of procedural fairness and whether the plaintiff had the opportunity to adequately respond to the allegations against her dog.

The court found that the council's declaration was not valid as it did not comply with the statutory requirements outlined in the Act. The council had failed to provide the plaintiff with adequate notice and an opportunity to be heard before making the declaration. The court emphasised that procedural fairness was essential in such cases to ensure that the affected party could effectively respond to the allegations. Consequently, the court ruled that the declaration was invalid due to the procedural irregularities. As a result, the council's decision to impound the dog was quashed, and the dog was released to the plaintiff.

The court ordered that the dangerous dog declaration issued by the Hunters Hill Council be set aside as it was found to be invalid due to procedural deficiencies. Furthermore, the court ordered the immediate release of the plaintiff's dog from impound. The council was directed to reimburse the plaintiff for any costs reasonably incurred in connection with the impoundment and the legal proceedings.

Orders