Curmi v Blacktown City Council

[2023] NSWSC 1652

Supreme Court

New South Wales

Medium Neutral Citation:

Curmi v Blacktown City Council [2023] NSWSC 1652

Hearing dates:

22 December 2023

Date of orders:

22 December 2023

Decision date:

22 December 2023

Jurisdiction:

Common Law

Before:

Hamill J (as Duty Judge)

Decision:

The order made by Justice Garling on 15 December 2023 is varied as follows:

(1) Upon the plaintiff:
(a) signing an enforceable waiver under the Civil Liability Act 2002 (NSW), and
(b) providing a written undertaking to the Court that she will vacate the dangerous dog enclosure on request by staff at Blacktown Animal Rehoming Centre,
the plaintiff is allowed access, including physical contact (including hugging) to her dog Max for one hour, between 3pm-4pm, on the following days: 2nd, 3rd, 4th, 5th, 8th, 9th, 10th, 11th and 12th January 2024.

(2) There is to be no requirement imposed by the defendant that the plaintiff be required to take a support person.

(3) For the sake of clarity, this variation to the order allows the plaintiff to enter the enclosure where Max is held.

Catchwords:

CIVIL LAW – dangerous dog – Max – companion animal – variation of interim orders – allowing plaintiff access to dog pending determination of application for judicial review – Blacktown Animal Rehoming Centre – BARC – where Court made orders allowing plaintiff to visit dog at BARC – bounds and circumstances of contact not defined – inability of parties to agree – diametrically opposed positions taken by the parties – bloody mindedness – what steps are reasonably necessary to facilitate visit – imposition of condition requiring plaintiff to bring support person – whether plaintiff permitted physical contact with dog – whether council should required to put on additional staff – whether plaintiff can hug her dog – what dogs are ever thinking – liability and safety issues – last Friday before Christmas – variation to orders made

Legislation Cited:

Civil Liability Act 2002 (NSW)

Companion Animals Act 1998 (NSW)

Category:

Procedural rulings

Parties:

Connie Curmi (Plaintiff)
Blacktown City Council (Defendant)

Representation:

Counsel:
A Martin (Plaintiff)
M Fozzard (Defendant)

Solicitors:
Bilias & Associates (Defendant)

File Number(s):

2023/00445929

Publication restriction:

Nil

Ex-Tempore JUDGMENT (Revised)

1. This matter to be decided in the vacation duty list arises out of some orders made by his Honour Justice Garling on 13 and 15 December 2023. I note that the time is currently 4:00 pm, that it is the final Friday before Christmas, and that I must provide these reasons quickly and ex-tempore because there are other things for me to do as Duty Judge when I leave the courtroom.

2. In short, there was a summons filed by Ms Connie Curmi (“the plaintiff”) on 8 December 2023 seeking judicial review of a decision made by the Blacktown City Council (“the Council” or “the defendant”) to seize her dog, whose name is Max. The position of the defendant is that Max is a dangerous dog, and that it was exercising its powers under the Companion Animals Act 1998 (NSW).

3. The matter was listed urgently before Garling J. However, the Council was not ready to proceed and, for reasons that do not presently matter, the hearing date was vacated. There then emerged – unsurprisingly, based on what I have been listening to and reading for the last two hours – some issues between the parties. Garling J was called upon to make a decision about where Max would be held between the time of the vacated hearing and the 15^th of January 2024, which is when his Honour re-listed the case (admirably before himself) for determination.

4. The parties, again unsurprisingly considering what I have heard this afternoon, took diametrically opposed positions. The Council argued that the plaintiff should not have any visitation rights to Max and the plaintiff argued that Max should be allowed to go home. Some evidence was placed before his Honour. I have not had access to that evidence and neither party suggested that I should have access to it. Based on the reasons provided by Garling J, some of the evidence supported the Council’s position that Max is dangerous, in particular to members of the community rather than to its owner (the plaintiff). However, other evidence suggested that Max, who was depicted in photographs and videos, was not displaying aggressive behaviour.

5. Based on the evidence, his Honour rejected the plaintiff’s position that Max should be allowed to go home to her place, notwithstanding the availability of what I gather to be facilities that comply with the relevant legislation, by which I think I mean, cages or a cage or an enclosure in the plaintiff’s home, which would make it safe for Max to be there. The rights and wrongs of that determination are not up for grabs this afternoon.

6. The Council took the position that the plaintiff ought not be allowed to visit Max at all but his Honour clearly rejected that position and made this order:

“[U]ntil further order, that the defendant do all things as are reasonably necessary to permit visitation by the plaintiff to the dog at the Blacktown Animal Rehoming Centre providing that such visitation is to occur during usual business and opening hours of the Rehoming Centre and that the plaintiff comply with standard conditions of entry to that Rehoming Centre and any reasonable request of officers at that centre.”

7. His Honour made a second order which gave the parties liberty to restore the matter on short notice to the Duty Judge.

8. Since that order was made on 15 December 2023 the parties have again fallen into dispute. The Council has exercised its powers or discretions in such a way that the plaintiff felt it necessary to take up his Honour’s offer, in order 2, and return to the Duty Judge to try to get some clarity around her visiting rights and what it means for the defendant to do all things that are “reasonably necessary” to facilitate such visits.

9. The parties have provided me this afternoon with some affidavit evidence. I have an affidavit from the plaintiff, along with a number of text messages which bear out parts of her affidavit. The Council has relied on an affidavit by Tania Henson, which sets out the position of the Council and the practical difficulties surrounding the plaintiff visiting Max such as: when it is and is not possible for the plaintiff to visit Max, staffing issues at the Rehoming Centre, issues concerning the way that the so-called “dangerous dogs” are housed and the dangers that might arise if the plaintiff is given access, as in physical access, to Max inside his enclosure or cage, including access that would allow her to hug him and so on.

10. There is a good deal of evidence and it has been well put together, if I can say so with respect to both legal teams. I have been grateful to receive patient and, within the time available, reasonably comprehensive submissions.

11. There are a number of disputes that have arisen over the last eight days or so and they include whether or not the plaintiff should be required, because of what was subjectively thought to be her emotional state at the time Max was seized, to have a support person with her when she visits Max. That issue has seemingly evaporated, or at least the defendant saw the writing on the wall in respect of it, and I would not and do not interpret what Garling J ordered as suggesting that she needs to take a support person.

12. There were also restrictions placed on the time that the plaintiff could visit Max, because the Council submitted that there were staffing issues around having someone supervise the plaintiff’s access to Max.

13. The most critical issue though between the parties is whether or not the plaintiff should be allowed to physically engage with Max (I am just going to use that phrase but note that it incorporates the plaintiff being able to hug Max).

14. The plaintiff sets out the distress, as she saw it, exhibited by Max when she was not allowed to physically engage with him during the visit she had. She also spoke about the difficulties that arose around her needing to take a support person and, this is my words, the bloody-mindedness on the part of the Council in restricting her time with Max to half an hour.

15. I have no doubt that the plaintiff has a genuine belief in all of those complaints. Equally, I can see the other side: that there are difficulties and liability and safety issues, and the Council is convinced that this is a dangerous animal and is motivated by that belief.

16. One of the issues that arose before Garling J, that was brought to my attention, is that the Council’s position always was and remains that the plaintiff should not be allowed to visit Max at all, pending the outcome of her application for judicial review. In the event that Garling J was to come to a contrary view, the defendant provided his Honour with short minutes of order which included an order that said, “no physical contact is permitted”. His Honour declined to make that order.

17. I take the Council’s position – that it was always opposed to any contact and any visitation – into account but his Honour clearly, when making the order, did not encompass that kind of restriction.

18. Really, I am not here so much to vary the orders made by his Honour, or to interpret the meaning of those orders, but rather to attempt to reach a position that will work, and provide certainty, until the case is heard to finality on the 15 January 2024.

19. Neither party has questioned my jurisdiction. Mr Martin, who appears pro bono for the plaintiff, has provided me with some authority that says I do have jurisdiction. I have to say that until he raised the matter it never occurred to me that I did not have jurisdiction. Mr Fozzard, who appears for the defendant, does not contend that I lack jurisdiction.

20. The concerns of the defendant are real and if the plaintiff is to have her way, she is going to have to understand that she does so at her own risk and her lawyers, or her lawyer, is going to have to work out a way to ensure that realisation is manifested in a binding waiver of liability.   

21. One of the Council’s concerns is for her safety. It is also concerned with the safety of staff members or others that might be called upon to intervene should Max become aggressive towards the plaintiff. I formulated an order, which will be for Mr Martin to give effect to, whereby an enforceable waiver under the Civil Liability Act2002 (NSW) is signed by the plaintiff before anything in the nature of direct or unrestricted physical contact can occur.

22. I should just go back to when the visit happened. On that occasion, the plaintiff was not allowed to get close enough to Max to physically engage with him, in the sense of hugging or patting him. She was behind a kind of wire mesh through which she was allowed to feed him treats. The way she described it, Max became quite distressed, and she interpreted, insofar as one can understand what dogs are ever thinking, that he was distressed because of the lack of physical contact.

23. She may be right, or she may be wrong, I do not know. However, if the plaintiff is to do what she wants, which is to hug her dog, she needs to allow the Council to be satisfied that she is doing it at her own peril, in circumstances where the Council’s position was quite firmly and persistently put that none of this should be allowed.

24. The other thing that the Council is concerned about is that if the plaintiff gets inside the enclosure with Max and something happens that causes him to become distressed, or another animal around him to become distressed, or a member of staff to think that the plaintiff’s interaction with him should end, the plaintiff will not leave the cage when asked to. The plaintiff is going to have to complete a written undertaking to the Court, signed by her and executed by her lawyer, that she will in fact comply with any direction given by a staff member at the Rehoming Centre. I am not going to say “reasonable direction”, because, if I did so, I am pretty confident that we will be back here next week (or at least the parties would be).

25. The defendant sets out a number of days when the centre is closed, which includes between the 25^th to 29^th of December 2023 and the 1^st of January 2024.  Even the plaintiff was prepared to accept that no visits could take place while the centre was closed.

26. The defendant also submits, and it finds voice in Ms Henson’s affidavit in the last sentence of paragraph [9], that weekend visits are “not an option” as less staff work over the weekends and the lack of staff means that the defendant is not able to accommodate this level of physical contact visit within the dangerous dog enclosure.

27. It was submitted that Garling J said that the defendant was to do all things that are “reasonably necessary” to permit visitation. Implicit in the submission, although when I put it to Mr Martin he was perhaps not quite prepared to accept this is what he meant, but the only implication behind the suggestion, is that it might include a requirement that the defendant put on further staff over the weekend. I do not think that this was what his Honour had in mind when he made that order. In any event, I do not think that I can make an order that might force the Rehoming Centre to put on further staff or to have them organise their staffing arrangements in such a way that other parts of the facility are understaffed for this one case, albeit that it is an important case to the plaintiff and probably to Max.

28. That really rules out the plaintiff visiting Max from the 23^rd to the 31^st of December 2023 or indeed on the 1^st of January 2024. I have heard Mr Martin’s strong and earnest submissions that I should make orders allowing access on the weekends but, in the face of what is in the last sentence of paragraph [9] of the affidavit, I am not prepared to do that. I think it would be an unreasonable thing to do to the Council and the Rehoming Centre, notwithstanding the strong argument put forward on the plaintiff’s case that she has been denied access to Max for many months.

29. I will make orders, provided the necessary waiver and undertaking are in place, to cover the days between 2^nd and 5^th and 8^th and 12^th of January 2024. That is the Tuesday through to Friday of the first week of January and the Monday through to Friday of the second week of January.

30. I will not make orders to allow the plaintiff to visit Max on the weekend, because the staffing issues apply.

31. So, I will vary the order made by Garling J on 15 December as follows:

1. Upon the plaintiff:

1. signing an enforceable waiver under the Civil Liability Act 2002 (NSW); and

2. providing a written undertaking to the Court that she will vacate the dangerous dog enclosure on request by staff at Blacktown Animal Rehoming Centre

the plaintiff is allowed access, including physical contact (including hugging) to her dog Max for one hour, between 3pm-4pm, on the following days: 2nd, 3rd, 4th, 5th, 8th, 9th, 10th, 11th and 12th January 2024.

2. There is to be no requirement imposed by the defendant that the plaintiff be required to take a support person.

3. For the sake of clarity, this variation to the order allows the plaintiff to enter the enclosure where Max is held.

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Decision last updated: 09 January 2024