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

1. 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.

2. 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”).

3. On the hearing of this application, Mr Benson, solicitor, appeared for the plaintiff and Mr Berveling of Counsel appeared for the defendant.

4. 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.

5. 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.

6. The background to the matter is set out in the affidavit of Mr Benson and the attached correspondence. The plaintiff is a person who apparently suffers from some mental health issues. As far as I can determine, he lives alone in a unit at on Victoria Road, Gladesville. I understand that the plaintiff does not work and is living in accommodation provided to him through a not-for-profit organisation.

7. According to the Council, on 9 September 2024, the plaintiff was walking Solo in his street when Solo is said to have behaved aggressively and bit a lady. The lady suffered injury which required admission to hospital and surgery.

8. Following this incident, the Council impounded Solo at a local veterinary clinic. The dog has been impounded at that clinic since September 2024. According to the Council, whilst at the clinic Solo has again behaved aggressively leading one or more of the people working at the veterinary clinic to express concerns for their own safety and concerns about the dangerous nature of the dog.

9. On 21 November 2024, the Council purported to make a “Dangerous Dog Declaration” (“Declaration”) pursuant to s 34(1) of the Act, specifying that the dog had without provocation attacked a person.

10. On 26 November 2024, Mr Benson wrote to the Council on behalf of the plaintiff referring to the Declaration and challenging its basis. There followed correspondence between the Council and Mr Benson and indeed directly with the plaintiff about the Declaration and the Council’s intentions with respect to the dog. Put simply, the plaintiff offered to erect an enclosure within his unit to satisfy the Council’s requirements having regard to reg 32 of the Regulations.

11. The Council rejected this suggestion and on 23 December 2024 informed the plaintiff and Mr Benson that, following Council’s investigation and consideration, the Council had determined that Solo would be euthanised. Mr Benson then immediately filed proceedings in this Court by way of a summons filed on 27 December and then the amended summons filed today.

12. During exchanges today, Mr Benson indicated that he maintained that the Declaration was invalid and that the Council had failed to afford the plaintiff procedural fairness. Further, as I understand it, his client also wished to pursue the case to final hearing on the basis that he wishes to challenge the Declaration and challenge the Council’s right to have it destroyed.

13. At the commencement of the hearing today, Mr Berveling indicated that the Council would undertake not to euthanise the dog but did not consent to the other orders sought by the plaintiff. That is, the Council did not consent to the dog being returned to the plaintiff and being kept in the plaintiff’s unit in the circumstances suggested by the plaintiff.

14. As I indicated to Mr Benson, I am not in a position to determine what should happen with the dog or make any final orders at this stage. However, I did make the following observations.

15. Firstly, the Act requires proceedings be commenced in the Local Court should a dog owner wish to appeal from any declaration by the Council that a dog is a dangerous dog. Secondly , I had considerable concerns as to the practicality of these proceedings bearing in mind on a full hearing the Council would seek to adduce evidence from a person who was bitten by the dog and ended up in hospital, along with evidence from presumably experienced vets who have been keeping the dog and who have grave concerns as to their safety having regard to what appears to be the aggressive nature of the dog.

16. Of course, common experience suggests that dogs can and generally do behave very well in the company of their owners. The plaintiff no doubt has a completely different perception of his own dog. The dog, as Mr Benson submits, is probably quite stressed being kept away from its home for such a period and may be behaving quite differently to the way it normally behaves. However, the plaintiff’s own views about his dog do not really detract from what appears to be a substantial body of evidence contrary to the plaintiff’s views.

17. I note that Mr Benson is acting pro bono to assist the plaintiff, who is obviously a person in need of help and who is very fond of his dog. Nothing I say reflects any criticism of Mr Benson but, as I indicated openly, I do have some concerns as to the utility of these proceedings.

18. In any event, following exchanges and in light of the views I have expressed, the parties have reached agreement as to what should happen, namely, that I should make the interim order set out in paragraph 7 of the amended summons, restraining the defendant from destroying the dog and the proceedings should then be dismissed.

19. Whilst the intent of that course is that the Council will, if it considers fit, make a new declaration about the dog such that, if the plaintiff then wishes, he can within the timeframe allowed under the Act pursue proceedings in the Local Court for a determination as to whether, as I understand it, the Declaration is a valid declaration or whether something else should happen with the dog.

20. In the circumstances the orders I make are:

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. 

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Amendments

04 January 2025 - unitalicised "the Act"

Decision last updated: 04 January 2025