Dalaya v City of Playford - [2005] SASC 235

Supreme Court of South Australia
(Magistrates Appeals: Civil)
DALAYA v CITY OF PLAYFORD
Judgment of The Honourable Justice Layton (ex tempore)
28 June 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE
ANIMALS - VARIOUS STATUTORY PROVISIONS - DOGS - REGISTRATION, IDENTIFICATION OF OWNERS AND SEIZURE AND DESTRUCTION - OFFENCES
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - JURISDICTION, POWERS AND DUTIES
Appeal against orders made by a magistrate who refused to vary or discharge a prohibition order previously made by the same magistrate pursuant to s 47 Dog and Cat Management Act 1995 (SA)- the appellant had previously pleaded guilty to owning and keeping four dogs which created noise by barking and unreasonably interfering with the peace, comfort or convenience to a person-order made removing the dogs.
On previous appeal order varied and liberty given to applicant to vary or discharge that order- applicant applied to discharge and was refused by magistrate who made a further order- consideration of whether there was new material- whether a conflict of interest if same magistrate hears the application and whether further order was within jurisdiction.
Appeal allowed for the limited purpose of quashing the further order made by the magistrate- no power to make the additional order on an application to vary an existing order- but otherwise the appeal is dismissed.

DALAYA v CITY OF PLAYFORD
[2005] SASC 235
Magistrates Appeal

LAYTON J: This is an appeal against orders made by a Magistrate on 12 April 2005 who refused to discharge or vary a prohibition order which had previously been made by the learned Magistrate (“the Magistrate”) on 7 December 2004 pursuant to the Dog and Cat Management Act 1995 (“the Act”).
There is a considerable history of this matter. The appellant was issued with a complaint by an officer of the City of Playford on 17 June 2003 with three counts under the Act. After a number of pre-trial conferences in an attempt to resolve the matter, it went to trial before Magistrate Metano mski on 7 December 2004. By consent between the parties the appellant was re-arraigned on count 2 and pleaded guilty, whereupon counts 1 and 3 were withdrawn with no application for costs.
The particulars of Count 2 were:
Count 2: Owning and Keeping 4 dogs (12/5/03 and 22/5/03) that together or alone creates a noise by barking which persistently occurs to such a degree that it unreasonably interferes with the peace, comfort or convenience of a person. Contrary to s 43 (11) Dog and Cat Management Act.
The Council then requested an order pursuant to s 47 of the Act that the appellant be prohibited from having any dogs on the property situated at 8 Berryman Road, Smithfield Plains, (“the home property”).
The Magistrate ordered under s 47 of the Act that the appellant be prohibited from having any dogs on the home property and that all dogs currently on the home property, be removed on or before 14 December 2004. The Magistrate then sentenced the appellant on count 2, convicted him and placed him on a $500 bond to be of good behaviour for 12 months.
The appellant then appealed the decision of the Magistrate on the grounds that the order prohibiting the appellant from keeping any dogs on the home property was manifestly excessive and, secondly, that the Magistrate had no power to impose a good behaviour bond.
On 25 February 2005, His Honour Justice Gray delivered an ex tempore judgment setting aside the order that the appellant enter into a good behaviour bond on the agreement of the respondent that the Magistrate had no power to impose the bond. The recorded conviction remained.
The orders made by Justice Gray on 25 February 2005 were as follows:
Appeal against sentence allowed.
Order made on 7/12/2004 that the appellant enter into a good behaviour bond set aside.
Order that the conviction remain.
Order for prohibition made by the Magistrate varied by adding:
“That the defendant is at liberty, on seven days notice to the City of Playford, to apply to the Magistrates Court to discharge or vary the prohibition order”.
On such application the appellant will have to satisfy the Court that it is appropriate that he be allowed to have 2 dogs on Berryman Road, Smithfield Plains.
DOG CONTROL ACT ORDER-
Further order pursuant to s47 of the Dog and Cat Management Act, 1995 prohibiting the defendant from having any dogs on the property situated at 8 Berryman Road, Smithfield Plains, and that all dogs currently on the above property be removed on or before 14/12/2004. On the basis of that is done there will be no application for costs by the Prosecution.
It is to be noted that the order for prohibition was varied with the addition that the defendant was at liberty to apply within 7 days to discharge or vary the prohibition order.
The appellant exercised the liberty granted by Justice Gray and applied to discharge the prohibition order of 7 December 2004. On 12 April 2005 the appellant went before the Magistrate seeking to vary or remit the order of the 7 December 2004 which prohibited the appellant from having any dogs on the property. The Magistrate refused the application by the appellant to keep 2 dogs on the premises, saying as follows:
[3] Mr Dalaya has made an application some 3 months after the said order was made to vary/remit the order made prohibiting Mr Dalaya from keeping dogs on his property at 8 Berryman Road, Smithfield Plains. Mr Dalaya seeks to keep 2 dogs on the premises.
[4] There is nothing new before me which causes me to remit or vary the order previously made.
[5] Application is refused.
[6] I make a further order. If at any time it becomes known to Council that the subject dogs are on the subject property, namely 8 Berryman Road, Smithfield Plains then the Council Officers have the power to take reasonable measures to remove these dogs.
Appeal Grounds
At the hearing before me, I expressed concern that I did not have any information as to what material was placed before the Magistrate before making his order to refuse the application. Counsel for the respondent, who had been Counsel before the Magistrate, indicated that the appellant had provided the following information, and this was agreed to as being accurate by the appellant. The information was:
·Immediately following the hearing before Justice Gray, the appellant said he removed the dogs from the home property and three days later a truck was broken into and property of the value of some $300 was taken.
·The appellant indicated to the Magistrate that he needed to protect his property and that he had a right to protect his property.
·The appellant said that he lived alone and he sought companionship which he obtained from his dogs.
·The respondent understood that the appellant sought the return of all four dogs which had been the subject of the previous offence. This was clarified before me by the appellant who indicated that he only wished to have two of the previous four dogs returned to his home property.
Counsel for the respondent indicated that when these submissions were made before the Magistrate, as counsel, he responded as follows:
·That the need to protect the neighbours overrode the matters which the appellant sought to raise in support of his application.
·It was important for the neighbours to have their peace and comfort protected and there was no indication from anything that the appellant had said that this could be done.
At the hearing before me the appellant made submissions to the following effect:
·That he had previously pleaded guilty because his believed threats were being made that his dogs were to be killed and he wanted to avoid that.
·That it was only one of five neighbours which are adjacent to his property, who had complained of the barking dogs.
·That the person who had complained about the barking dogs had indicated a determination to try and get rid of the appellant’s dogs.
·That he sought the dogs to live with him on the home property because of companionship and also he lived in a bad area and he wanted to be alerted by the dogs barking if there were any intruders.
In addition, the appellant informed me that the two dogs that he wished to have returned to his home property lived on another property which he owned some five kilometres from his home property. Further that he had horses which he also kept on the property and that he visited the property twice a day.
In essence, what the appellant was seeking before me was to re-argue that he should not have been found guilty in the first place, as he was innocent. I indicated to him that that was not a matter which was validly before me, as my concern related only to whether the Magistrate was correct in refusing his application. This was not a time at which I could go behind the conviction, particularly given the history.
Given the issues before me on appeal, and bearing in mind the information which was provided to the Magistrate, he was correct in concluding on the information put to him that the application should have been refused.
Likewise, there were no matters placed before me on appeal which would suggest that the decision should be otherwise.
The appellant is seeking to have returned to the home property two of the dogs which were the subject of his conviction with no other assurances that the conduct which was complained of in relation to those dogs, will not be repeated. His argument as to companionship is slight, bearing in mind that he sees the dogs at least twice a day, and probably for extended periods whilst he cares for his horses. Further, it would seem that he seeks the dogs to be returned to him for the purpose of them barking to alert him as to any intruders, so that it is effectively their propensity to bark which he is seeking to use again. One can readily appreciate the affection which the appellant has for his dogs but this gives no assurance that the conduct will not be repeated.
The appellant also argues that the Magistrate had a conflict of interest as he had made the original order at trial on 7 December 2004. However, it is not a conflict of interest for the same magistrate to hear the same matter particularly as it was an application to vary the original order. Often magistrates may hear the same matter if it is remitted back to them after an appeal to the Supreme Court. Allowing the same magistrate to hear a matter such as this ensures the magistrate hearing it has a grasp on the matters in order to understand the application. Other than saying it should not be before the same Magistrate, no other grounds in relation to the conduct of the Magistrate were complained of by the appellant
For these reasons, I therefore refuse the appeal in so far as there was a refusal by the Magistrate to grant the appellant’s application.
There is however a further issue, namely that the Magistrate made a further order in addition to the refusal to grant the application namely:
[6] … If at any time it becomes known to Council that the subject dogs are on the subject property, namely 8 Berryman Road, Smithfield Plains then the Council Officers have the power to take reasonable measures to remove these dogs.
As the application that was before the Magistrate was simply an application to vary or discharge the order in accordance with the decision of Justice Gray, I do not consider that the Magistrate had jurisdiction to make this further order.
Counsel for the respondent pointed to s 47 of the Act. I note that s 47 of the Act provides that a court has power pursuant to section 47 (1) (h) to make “any other order that the case requires”. However, the power to make such order is only if “a person is found guilty of an offence against Division 1 or 1A” of the Act.[1]
[1] Dog and Cat Management Act 1995 (SA) Part 5- Management of Dogs
The matter which was before the Magistrate was not another offence, it was the subject of that to which the appellant had already pleaded guilty and had been convicted. In my view, the application to vary could not have led to the power to make the additional order.
On this basis therefore I make the following order:
The appeal be allowed for a limited purpose, namely to quash the further order made by the Magistrate, but otherwise the appeal is dismissed.

Division 1- Offences relating to duties of owners and others responsible for control of dog,
Division 1A- Offences relating to specific duties of owners and others responsible for control of certain dogs.