Curmi v Blacktown City Council

[2024] NSWSC 10

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Curmi v Blacktown City Council [2024] NSWSC 10

Hearing dates:

2 January 2024

Date of orders:

2 January 2024

Decision date:

23 January 2024

Jurisdiction:

Equity - Duty List

Before:

Slattery J

Decision:

Dangerous dog returned home upon undertakings to be kept in a dangerous dog enclosure.

Catchwords:

CIVIL PROCEDURE - dangerous dog – CompanionAnimals Act 1998 – interlocutory relief – plaintiff’s dog seized and kept in the defendant Council’s facility – whether seizure order valid – defendant’s motion to vary previous orders made by the Court – – whether the strength of the plaintiff’s case and the risk of harm to third parties warrants variation of the Court’s existing orders to permit the plaintiff to visit her dog at the defendant’s facility or to allow the dog to be returned home.

Legislation Cited:

Civil Liability Act2002

CompanionAnimals Act 1998, ss 34, 51, 51(1)(c), 58G

Cases Cited:

Curmi v Blacktown City Council [2023] NSWSC 1197

Curmi v Blacktown City Council [2023] NSWSC 1614

Curmi v Blacktown City Council [2023] NSWSC 1652

Curmi v Blacktown City Council (No 2) [2023] NSWSC 1615

Category:

Consequential orders

Parties:

Plaintiff: Connie Curmi
Defendant: Blacktown City Council

Representation:

Counsel:
Plaintiff: A.G. Martin
Defendant: M. Fozzard

Solicitors:
Defendant: Angelo Bilias, Bilias & Associates

File Number(s):

2023/445929

Publication restriction:

No

Judgment

1. Blacktown City Council (“the Council”) seized Connie Curmi’s German shepherd dog, Max, on 17 August 2023 from her Quakers Hill property. By then Max had been declared a “dangerous dog” under the Companion Animals Act 1998. Max has since been kept at the Blacktown Animal Rehoming Centre (“BARC”); a facility maintained by the Council. On 8 September 2023 at the suit of the Council the Local Court at Blacktown made an order that Max be destroyed.

2. Ms Curmi brought proceedings in Equity duty list on 14 September 2023 for relief to save Max from destruction. McGrath J stayed the destruction order in the Equity proceedings on 14 September, to allow sufficient time for an appeal to be lodged to the District Court against the destruction order: Curmi v Blacktown City Council [2023] NSWSC 1197.

3. Ms Curmi lodged her appeal to the District Court and the Equity proceedings were spent. Then on 8 December 2023 she commenced the present Common Law proceedings by summons, in the Common Law duty list before Weinstein J. Her summons claimed administrative law remedies to set aside the 17 August seizure and an order to allow Max to be returned home. These Common Law proceedings were listed for urgent final hearing before Garling J on 13 December. But the Council successfully applied for an adjournment of the December hearing and Garling J re-fixed the urgent final hearing in the vacation list on 15 January 2024: Curmi v Blacktown City Council (No 2) [2023] NSWSC 1615.

4. In the meantime, a new dispute arose about what kind of physical access Ms Curmi would have to Max before the hearing on 15 January 2024. Hamill J heard a contested application on 22 December 2023 and resolved that dispute to the apparent satisfaction of all parties and made orders providing for Ms Curmi to have physical access to Max on certain conditions after the Christmas – New Year break, commencing on 2 January 2024 when a full complement of BARC staff was available: Curmi v Blacktown City Council [2023] NSWSC 1652.

5. But when the Council’s staff were consulted about Hamill J’s orders, they raised difficulties with the implementation of the orders which had not been clearly articulated before Hamill J on 22 December. The dispute could not be resolved. So, the parties relisted these Common Law proceedings in the vacation duty list on 2 January 2024 pursuant to a motion of the Council. Because of changed circumstances the Council was now seeking orders by its motion for the release of Max back to Ms Curmi pending the final hearing. When the matter was called on for hearing on 2 January, neither party was in the position to bring forward the final hearing fixed for 15 January. So, the Court dealt with the matter on an interlocutory basis.

6. The Court needed to be satisfied that it was appropriate to grant the interlocutory relief sought by the Council in the Common Law proceedings on 2 January 2024 given the detailed orders the Court had already made for Ms Curmi to visit Max at the BARC facility pending the final hearing. The Court indicated it was willing to grant the relief and immediately thereafter the Common Law proceeding settled on a final basis. The terms of that settlement appear at the conclusion of these reasons.

7. Ms Curmi’s appeal to the District Court from the 8 September 2023 destruction order is still pending and is listed for hearing on 8 and 9 April 2024. It may assist the conduct of that District Court appeal for the Court now to give short reasons for granting the interlocutory relief on 2 January 2024, which led to the settlement of the proceedings. These are those reasons. They also record the final terms of settlement. Nothing in these reasons should be taken as pre-empting the exercise of discretion of the District Court on that appeal.

8. Since she first came before McGrath J Ms Curmi has been without funds to engage lawyers. But in the finest traditions of the Bar, when the matter came on in a busy duty list before McGrath J on 14 September and Ms Curmi was without legal representation, Mr A G Martin of counsel volunteered to appear on a pro bono basis for her. Mr Martin has acted for her ever since and he represented her on 2 January 2024 on a direct access basis. Again, in the highest traditions of the profession, he was assisted from time to time in acting for Ms Curmi by a solicitor from the firm Mills Oakley acting on a pro bono basis, although not on 2 January 2024. Mr M Fozzard of counsel appeared for the Council instructed by Mr C Tsavdaridis of Bilias & Associates.

9. Hamill J observed (at [10)) that substantial evidence had been gathered on both sides in the proceedings in a short space of time, commenting it had been well put together and supplemented by comprehensive submissions. The same is true of the hearing on 2 January 2024. The Court was much assisted in an urgent vacation hearing by the work of the legal representatives on both sides.

10. The issue for interlocutory determination on 2 January 2024 arose in the following way. Max was at BARC pending determination of the grant of final relief, which included the claim for his return home. Ms Curmi complained before Garling J that she was being prevented by BARC staff from having access to Max at the BARC facility. Garling J raised with the legal representatives of the Council whether Ms Curmi could be allowed to visit Max as a condition of the adjournment. In response, Ms Curmi applied for Max to be returned her custody on an interim basis.

11. The Council opposed Ms Curmi visiting Max at BARC. Garling J adjourned the matter from 13 to 15 December 2023 to allow for evidence to be filed to assist in setting the terms of the adjournment to 15 January. The context for this was that the Council had made a dangerous dog declaration for Max under the Companion Animals Act, s 34 in June 2023. The declaration had been made after Max had escaped in February 2023 and then again in May 2023. On each occasion he had attacked and caused injuries to a person. In one case he had escaped from a parked car and in another from the fenced front yard of the premises. The events leading to Max’s seizure on 18 August 2023 are strongly disputed.

12. As Garling J’s judgment shows, his Honour was faced with conflicting evidence. The Council’s evidence suggested that Max displayed aggression to staff at BARC which Council cited in support of the contention that Ms Curmi should not be permitted to visit Max pending final hearing. But other evidence showed that Max often does not display aggressive behaviour particularly in the presence of Ms Curmi.

13. The additional evidence before Garling J showed that, unlike the position in August 2023, the dangerous dog enclosures at the Quakers Hill property were by mid-December substantially compliant with the requirements of the Companion Animals Act. An outside dangerous dog enclosure at the Quakers Hill property was fully compliant and only minor work needed to be done to ensure that the internal enclosure was compliant.

14. To maintain the status quo before final hearing, Garling J permitted Ms Curmi to visit Max at BARC but did not permit him to be returned home. Garling J ordered that the Council do all things necessary to permit Ms Curmi to visit Max at BARC during usual business hours, on the basis that Ms Curmi complied with the standard conditions of entry and any reasonable request made of her by BARC officers.

15. But another dispute arose, and the matter came back before Hamill J on 22 December. The standard conditions of entry to BARC referred to in Garling J’s orders did not permit the physical handling of dangerous dogs. So, when visiting, Ms Curmi was unable to touch Max other than minimally through a wire mesh to feed him treats. She wanted closer physical access to Max. She advanced a proposal to Hamill J to allow this. But the Council indicated it would require additional staff to manage identified risks associated with such contact.

16. Hamill J considered that it was unreasonable to require the Council to put on additional staff between 22 December and 2 January to accommodate Ms Curmi seeing Max. Hamill J made orders allowing visits to commence on 2 January, permitting Ms Curmi to enter the dangerous dog enclosures at BARC to have physical access to Max, provided she undertaking to vacate the enclosure upon request and provided she signed an enforceable waiver in favour of the Council against any liability under the Civil Liability Act2002 arising out of injury to her from entry into the dangerous dog enclosure. Then a timetable was agreed for Ms Curmi to visit Max at BARC.

17. Notwithstanding that these proceedings had received the careful consideration of two judges of this Court in December, on 2 January the issues revived. On 2 January the Council applied on its motion for relief from existing orders allowing Ms Curmi to visit Max. It appears that since 22 December the Council had taken deeper instructions from BARC staff about how to implement the Court’s orders and the new difficulties had emerged. The Council submitted that it was unable to implement the orders but did not wish to be in breach of them, so was seeking their variation on its motion. In substance the Council wished to allow Ms Curmi to take Max home pending final hearing, because it regarded the problems associated with Ms Curmi visiting Max at the facility to be insurmountable. Ms Curmi also submitted the best way to resolve the impasse was for Max to be returned to her pending final hearing. That was in substance to give something akin to final relief.

18. Council’s main concern was expressed on 2 January in an affidavit of the manager of BARC, Mr Anthony Gabrio, who explained the operating procedures, staff responsibilities and risk management protocols of the BARC facility. Mr Gabrio deposed that should the risk of Max doing some injury to Ms Curmi be realised whilst she was with Max , BARC staff are not permitted under their standard operating procedures to enter the dangerous dog enclosures at the BARC facility. This means that they would not be allowed to enter an enclosure to attempt to rescue her from a sudden attack by Max. If the attack continued, BARC staff might therefore be forced to witness the distressing and traumatising events of Ms Curmi suffering severe injury from Max.

19. In the result Mr Gabrio had come to the view that the risk to the health and safety of BARC staff from Max staying at the facility, with staff being required to implement the Court orders was so great that in his expert view, the safest interim outcome would be for Max to be released from the facility and placed in the now compliant rear enclosure at the Quakers Hill property.

20. The idea of Max returning home was obviously attractive to Ms Curmi. The debate at the hearing largely centred around the terms upon which this relief would be granted. The Court considered two principal matters: whether Ms Curmi’s case at final hearing was sufficiently strong to warrant interim relief being given, which in substance amounted to final relief; and whether any hardship in the form of risk to the personal safety of third parties would be posed by Max’s return.

21. As to Ms Curmi’s case at final hearing, in the Court’s view her case for overturning the seizure order was well arguable. The seizure order was made under Companion Animals Act, s 58G, which relevantly allows an authorised officer to seize a dangerous dog if dog attacks or bites of person “without provocation” (s 58G(1)) or if the requirements referred to in s 51 are not complied with in relation to the dog (s 58G (1A)).

22. As to s 58G(1), Mr Martin tendered a video taken from police body camera footage showing the events surrounding the seizure of Max from the Quakers Hill property. The police were called to Ms Curmi’s Quakers Hill property based on information received, said to be about the welfare of Ms Curmi. Upon arrival they forcefully entered it. Max attacked them. He was not then in a dangerous dog enclosure at those premises. The police said that he was displaying aggressive behaviour. On the other hand, the video of the circumstances in which the several officers broke into entered the premises could quite arguably be described as “provocation” for the dog, producing not surprisingly, the anxious response on his part that occurred.

23. As to s 58G(1A), the relevant requirement of s 51(1)(c) is for a dog to be kept in an enclosure that complies with the requirements prescribed by the regulations and the owner has three months from the date on which a dog is declared dangerous to comply. Here Max was declared a dangerous dog on 5 July 2023, which would allow Ms Curmi until 5 October 2023 to make her enclosure compliant. But he was seized on 17 August, well before the three months compliance grace period had expired.

24. As to whether Max’s return would occasion a risk of personal safety to third parties the Court was ultimately satisfied of the following matters. Ms Curmi was prepared to undertake to keep Max in the compliant dangerous dog enclosure at the rear of the Quakers Hill premises or otherwise keep him leashed and muzzled in accordance with the Companion Animals Act. She was also prepared to undertake to keep the rear dangerous dog enclosure compliant. Ms Curmi’s Quakers Hill premises belong to the Housing Commission of New South Wales. The Commission had required that any dangerous dog kept at the premises be kept in accordance with the Companion Animals Act, which Ms Curmi was prepared to undertake to do. Against this should be balanced the risk of injury to BARC staff if Max remained at the facility.

25. After the Court indicated that it would grant interlocutory relief to allow Max to return home upon the undertakings offered, the parties informed the Court that they wished to negotiate to see if they could resolve the whole proceeding by turning the interlocutory relief into final relief. After several hours they returned to Court and the following final orders were made:

1. Subject to order 2, order that the Defendant shall deliver (in accordance with the protocol in Schedule A which is attached to these orders) the dog, known as Max (‘Max’) into the custody, care, and control of the Plaintiff at [address not published], Quakers Hill in the State of New South Wales (the Quakers Hill premises).

2. Order 1 is made subject to a condition that the plaintiff releases and indemnifies the defendant again all liability of whatsoever kind in tort, contract or by statute or otherwise, against any damage, injury or loss suffered by the Defendant or any person within its employ, arising out of the delivery of Max to the plaintiff in accordance with these orders.

3. At all material times after delivery of Max in accordance with Order 1, the Plaintiff shall keep ‘Max’ within the detached dangerous dog enclosure located at the rear of the Quakers Hill premises (“the rear enclosure”) or otherwise keep Max in accordance with the applicable provisions of the Companion Animals Act 1998 and the Companion Animals Regulation 2018 in relation to dangerous dogs.

4. The Plaintiff shall maintain rear enclosure in accordance with the Companion Animals Act 1998, and Companion Animals Regulation 2018.

5. Direct that the parties provide a copy of these orders to Housing NSW within 7 days.

6. Note that (a) the intent of these orders is not to pre‑empt or decide any issue now pending before the District Court of New South Wales on appeal from the destruction order in respect of Max made by the Local Court on 8 December 2023 ("the Appeal"); and, (b), the defendant is at liberty to seek an order for the delivery up of Max to the defendant pursuant to the Companion Animals Act, s 50 in the event that, the District Court confirms the destruction order on the Appeal.

7. The Court makes no order as to costs to the intent that each party will bear her or its own costs of these proceedings.

8. Vacate the hearing before Garling J on 15 January 2024.

9. Dismiss the Summons.

10. These orders may be taken out forthwith.

Annexure A

Procedure for Pickup

The following procedure is to be followed for pick-up of Max:

1. Pick up of Max is to occur at the BARC Facility between 4.00pm to 5.00pm on Wednesday, 3 January 2024.

2. The Plaintiff must have a support person with her throughout the pick-up.

3. During pick-up, the Plaintiff will follow the directions of the Council officers present.

4. Once the Council officer gives the direction to the Plaintiff to enter the enclosure to execute the pick-up, the Plaintiff will:

a.   Fit the following to Max:

i.   a dangerous dog collar;

1. a basket muzzle;

2. a harness or leash;

b.   walk directly to the Plaintiff’s vehicle with Max; and

c.   Place Max in the vehicle.

1. The Plaintiff shall then immediately and directly transport Max to the Quakers Hill premises.

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Amendments

23 January 2024 - [1] first line, add ", Max," after "dog".

Decision last updated: 23 January 2024