Bruckner v Coffs Harbour City Council

[2022] NSWSC 1540

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Bruckner v Coffs Harbour City Council [2022] NSWSC 1540

Hearing dates:

27 October 2022

Date of orders:

27 October 2022

Decision date:

27 October 2022

Jurisdiction:

Common Law

Before:

Chen J

Decision:

(1)   The Notice of Motion dated 7 September 2022 is dismissed.

(2)   The plaintiffs pay the defendants’ costs of and incidental to the Notice of Motion dated 7 September 2022.

(3)   The further Amended Summons be listed for directions before the Registrar on 21 November 2022.

Catchwords:

ADMINISTRATIVE LAW – Remedies – Discretionary factors

ANIMALS – Companion animals – Dogs – Dangerous dogs

CIVIL PROCEDURE – Commencement of proceedings – Summons – Form and content

LOCAL GOVERNMENT – Legal proceedings – Judicial review – Judicial review of council decisions – interlocutory injunction sought by plaintiff

Legislation Cited:

Companion Animals Act 1998 (NSW)

Companion Animals Regulation 2018 (NSW)

Supreme Court Act 1970 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Appleton Papers Inc v Tomasetti Paper Pty Ltd [1983] 3 NSWLR 208

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26

Hossain v Minster for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3

MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590; [2021] HCA 17

Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1; [1998] HCA 30

Tooth & Co Ltd v Council of City of Parramatta (1955) 97 CLR 492

Category:

Procedural rulings

Parties:

Paul Bruckner (Plaintiff)
Coffs Harbour City Council (Defendant)

Representation:

Solicitors:
Mr Adamson (Plaintiff)
Mr Tassell (Defendant)

File Number(s):

2022/243523

JUDGMENT EX TEMPORE (REVISED)

1. This is an application for an interim injunction in proceedings for judicial review.

Background

2. The dog “Stevie” is a white and brown coloured Labrador Retriever/Airedale Terrier. Stevie lives at XX Norfolk Crescent, Coffs Harbour NSW. The owners of that property are Paul and Dawne Bruckner. Stevie is owned by Dawne Bruckner, but an issue has arisen as to whether Paul Bruckner is an owner as well.

3. It appears that Stevie now goes by the name “Taika”. It is convenient to continue to refer to him as Stevie.

4. At about 11 am on 26 November 2021, it is alleged that Stevie escaped, displayed unreasonable aggression towards another animal and, thereafter, attacked without provocation that animal causing it significant injury.

5. A complaint was made to Coffs Harbour City Council (‘the Council’) about this attack.

6. On 1 December 2021, the Council issued a Notice to Dawne Bruckner advising of its intention to declare Stevie to be a dangerous dog pursuant to s 35 of the Companion Animals Act 1998 (NSW) (the ‘CA Act’) as a result of what occurred on 26 November 2021.

7. By Notice dated 21 December 2021 and issued to Dawne Bruckner, the Council declared Stevie to be a dangerous dog under s 34 of the CA Act – again, based upon the events of 26 November 2021.

8. In very broad terms that declaration required Dawne Bruckner to comply with a number of requirements including: (a) that, whilst on the property, Stevie was kept in an enclosure sufficient to restrain him and prevent a child from having access to him (the prescribed enclosure referred to was required to be certified as compliant by an authorised officer of the Council); (b) ensuring that when Stevie was away from the property, he was under effective control by means of a chain, a cord or leash and had a muzzle securely fixed on his mouth; (c) ensuring that Stevie was not, at any time, in the sole charge of a person under the age of 18 years; (d) ensuring that Stevie wore a distinctive collar for dangerous dogs; and, (e) ensure that a warning sign was displayed where Stevie lived.

9. The Notice advised that there was a maximum penalty of $16,500 for failing to comply with any of the requirements of the declaration and, further, that an authorised Council officer may also seize and immediately destroy Stevie if Stevie attacked a person or animal or the specified control requirements for Stevie were not complied with. Finally, the Notice required that Stevie undergo “appropriate behavioural training” before the Council would consider any application to revoke the declaration.

10. On 22 December 2021, Dawne Bruckner, being dissatisfied with the Notice (and declaration), appealed to the Local Court: s 41 of the CA Act.

11. On 30 May 2022, a Council Ranger attended upon XX Norfolk Crescent, Coffs Harbour in order to undertake an inspection of the dangerous dog enclosure required by the Notice and declaration issued on 21 December 2021. According to a letter sent to Paul Bruckner from the Council, dated 17 June 2022, the Council refused to issue a certificate of compliance for the prescribed enclosure as it failed to meet the control requirements as set out in the Companion Animals Regulation 2018 (NSW). Paul Bruckner received an infringement notice for failure to comply with the dangerous dog control requirements: the penalty being $1,760: affidavit of Russell Holmes sworn 11 October 2022, RH-1, page 48; affidavit of Christopher Adamson, CA-1 page 6. The Council Ranger also observed that Stevie was not wearing the distinctive collar required. Despite this offence, the Council issued a caution only.

12. On 25 July 2022 the Council wrote to Paul Bruckner advising that they desired a second inspection “within the next 7 business days. Please be advised that your garage doesn’t meet the requirements … in relation to the dangerous dog enclosure”. In that letter, the Council further advised, that they were “not obliged to offer a second inspection after the time has elapsed in relation to the dangerous dog declaration, but will do so in good faith…”.

13. On 5 September 2022 Council Rangers attended XX Norfolk Crescent, Coffs Harbour in order to undertake a further inspection of the premises – in particular, to ascertain whether the dangerous dog enclosure requirements had been complied with. According to the Council Ranger who attended on that day, Russell Holmes, he was refused access to the premises by Paul Bruckner: affidavit of Russell Holmes sworn 11 October 2022, pars 31-35.

14. On 4 October 2022, the Council wrote to Paul and Dawne Bruckner (which was delivered to their address that day) requesting an opportunity for the Council to ascertain compliance with the requirement for a dangerous dog enclosure: affidavit of Russell Holmes sworn 11 October 2022, par 39 and RH-1, page 51. On that day Mr Adamson, a solicitor representing Paul and Dawne Bruckner, advised the solicitor representing the Council that if “a further inspection is required the appropriate course is an application to the SC for an inspection”: affidavit of Russell Holmes sworn 11 October 2022, par 39 and RH-1, page 52. The reference to “SC” I take to be Supreme Court.

15. As at 11 October 2022, the Council has been unable arrange a further inspection of the premises: affidavit of Russell Holmes sworn 11 October 2022, par 29.

The proceedings in this Court: an overview

16. On 5 October 2022, an Amended Summons was filed by Paul and Dawne Bruckner. Before me today, with leave, they filed a further amended summons. It is unnecessary to refer to the document filed in court today: Mr Adamson confirmed that the only substantive change is that final injunctive relief was sought in addition to judicial review.

17. The defendants to the Amended Summons were the Council and the Council Ranger. (It is unnecessary to consider whether the Council Ranger was, in the circumstances, a necessary party to the plaintiffs’ claim, and nothing in this judgment should be taken to endorse that approach).

18. By the Amended Summons, judicial review is sought in relation to two decisions:

1. The first was a decision “to enforce the dangerous dog declaration issued to the second plaintiff against the first plaintiff”. As to this decision, the sole ground raised was that Paul Bruckner was not the owner of Stevie.

2. The second is the “refusal of the [Council] to issue a certificate of compliance with the enclosure requirements for the dog Stevie” pursuant to s 58H of the CA Act. As to this decision (or failure to decide), it is said that the Council has “refused to withdraw the decision to enforce the allege-d breaches of the enclosure requirement in respect of the dog named Stevie” against Paul Bruckner (ground 2) and further that Dawne Bruckner had “complied with the enclosure requirements set down by regulation 32 of the Companion Animals Act (sic) Regulation 2018” (ground 3).

19. In relation to the “decision” to enforce the dangerous dog declaration against Paul Bruckner, the following two matters should be noted. First, he was issued with an infringement notice in the amount of $1,760, although Mr Adamson raises no complaint in this court about that notice. That is, it does not form part of the application for judicial review. Secondly, it is not self-evident, particularly in light of the definition of “owner” in s 7 of the CA Act, where the precise error, alleged to support judicial review, is said to lie. Certainly, from the form of the Amended Summons, it is unclear. There is, I should add, some evidence that suggests he was an owner of Stevie. Whether he was (or was not) an owner is not for me to presently decide.

20. In relation to the decision in connection with the refusal to issue a certificate certifying that there had been compliance with the enclosure requirements, the following matters should be noted. First, as noted above, Dawne Bruckner filed an appeal to the Local Court on 21 December 2021. Although the initiating process, and related documentation, is not in evidence, it is clear enough that by those proceedings Dawne Bruckner is challenging the declaration that Stevie is a dangerous dog under s 34 of the CA Act. In this respect, I was told by Mr Adamson that the matter is proceeding in the Local Court and is listed for hearing in the May 2023. Secondly, neither the grounds of review identified in the Amended Summons, nor the orders sought, provide any proper illumination of the basis upon which judicial review is sought: order 1, for example, simply seeks a “declaration” that the “decisions” of the Council Ranger to enforce the enclosure requirements against “the plaintiff” – of which there are two, although this ground does not identify the relevant one – is “ultra vires”. Another ground, by way of further example, seeks a declaration that there has been compliance with the enclosure requirements, without identifying why (or how) that remedy could or should issue. The difficulty is not helped by carefully looking at what occurred. On 17 June 2022, as I have noted, a letter was sent which recorded the outcome of the inspection on 30 May 2022: in short following that inspection the Council Ranger, “refused to issue” a certificate of compliance for the prescribed enclosure, “as the enclosure failed to meet the control requirements as set out in the Companion Animals Regulation 2018”.

The notice of motion for an interim injunction

21. I turn now to a consideration of the application for interim relief.

22. Paul Bruckner, by notice of motion dated 7 September 2022, seeks an injunction in the following terms:

That the defendant be restrained from seizing the dog names (sic) Stevie … or the dog named Indy … until further order of this court.

23. The first thing to notice is that the Amended Summons does not contain a ground that relates to the dog named “Indy”. The second is that no order is sought by Dawne Bruckner – although the Notice of Motion was amended today without opposition so as to include her.

24. The power to grant an interlocutory injunction, in the present case, is contained in 66(4) of the Supreme Court Act 1970 (NSW). In Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1; [1998] HCA 30 at [35], it was said:

The general principle which informs the exercise of the power to grant interlocutory relief is that the court may make such orders, at least against the parties to the proceeding against whom final relief might be granted, as are needed to ensure the effective exercise of the jurisdiction invoked.

25. The Court thus has to exercise its discretion in a manner best calculated to achieve justice between the parties (Appleton Papers Inc v Tomasetti Paper Pty Ltd [1983] 3 NSWLR 208, 216), an exercise that involves consideration of three matters: (i) the nature of the plaintiff’s case; (ii) the apparent strength of that case; and, (iii) the balance of convenience.

26. As to the plaintiff’s case, I have dealt with this earlier in this judgment: in particular, see [16]-[20], above.

27. As to the apparent strength of that case, it is, in my view, difficult to understand the true basis for judicial review; certainly it is not clear from the manner in which it has been described in the Amended Summons. For my part, the Amended Summons is non-compliant with r 59.4(c) of the Uniform Civil Procedure Rules 2005 (NSW) and the requirement that the summons must state “with specificity, the grounds on which the relief is sought”. I am prepared to assume, favourably to Paul and Dawne Bruckner, that a prima facie case for judicial review possibly exists.

28. The final matter is the balance of convenience. In my view, when considering this matter, as well as the “apparent” strength of the claim for judicial review, no basis exists for ordering interim relief. The particular matters that inform the exercise of my discretion are as follows.

29. First, I am entirely unpersuaded that any irreparable harm will be suffered if the interim relief is refused. No evidence has been adduced – at least none that I am prepared to accept – to suggest that any harm would be suffered if the interim injunction were not granted. All that will happen is that the Council, with the consent of the plaintiffs or by warrant and the assistance of the NSW Police, will inspect the enclosed area. It will be compliant with the requirements of the regulations, or it will not be.

30. Secondly, there is a significant issue about materiality, in the sense explained in Hossain v Minster for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 at [29]-[31] (Kiefel CJ, Gageler and Keane JJ); Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [2]-[4], [45]-[50] (Bell, Gageler and Keane JJ); and MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590; [2021] HCA 17 at [1]-[3] (Kiefel CJ, Gageler, Keane and Gleeson JJ). That is because, as Mr Tassell pointed out, the Council is not acting upon the letter of 17 June 2022; rather as the letter dated 25 July 2022 (and others) demonstrate, the Council is still seeking the consent of the plaintiffs to access the property to inspect the enclosed area to determine its compliance.

31. Thirdly, the availability of that right of review under s 41 of the CA Act is, in my view, a matter that tells against final relief and, by extension, interim relief: Tooth & Co Ltd v Council of City of Parramatta (1955) 97 CLR 492, 498. In Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 at [33] it was said, in relation to the discretionary refusal of prerogative relief, that one “often compelling discretionary bar is the availability of other relief”.

32. Fourthly, public policy considerations favour refusing the relief: Stevie has been declared a dangerous dog, and there is a public safety dimension plainly involved in a declaration so made. Furthermore, the form in which the injunction is proposed is more than problematic: it would restrict, if granted, and if Stevie were let loose, the Council from exercising its statutory duty to seize him.

33. Fifthly, Mr Tassell has expressly conceded there is no intention to destroy Stevie – in the event he was seized; merely to impound him. But whether that would arise would depend upon the result of any inspection of the enclosed area. Furthermore, as Mr Tassell argued, for any other step to be taken in relation to Stevie, again assuming that he was seized, would engage other statutory provisions, including those in s 64 of the CA Act.

34. Finally, the Amended Summons does not identify the ground (or grounds) for judicial review: at best it identifies a legal conclusion – that there was an act taken that was in excess of power – but, so far as it can be followed, not only does the Amended Summons fail to identify the basis for why that legal conclusion should be reached, it fails to specify precisely the circumstances or conduct which would give rise to it. It appears from what Mr Adamson has said today that it arises out of the fact that Paul Bruckner contests the issue – one fact – as to whether he was an owner of Stevie; and whether – and, if so, how – judicial review would be available in those circumstances has not been addressed in the Amended Summons. Thus, on what is currently alleged, I consider the apparent strength of the case for judicial review does not favour the interim relief that the plaintiff seeks.

Orders

35. For those reasons, I make the following orders:

1. The Notice of Motion dated 7 September 2022 is dismissed.

2. The plaintiffs pay the defendants’ costs of and incidental to the Notice of Motion dated 7 September 2022.

3. The further Amended Summons be listed for directions before the Registrar on 21 November 2022.

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Amendments

11 November 2022 - Format

14 November 2022 - Format

Decision last updated: 14 November 2022