Dalaya v City of Playford

[2005] SASC 71

Supreme Court of South Australia

(Civil)

DALAYA v CITY OF PLAYFORD

Judgment of The Honourable Justice Gray (ex tempore)

25 February 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

Appeal against decision of magistrate - appellant prosecuted by respondent for owning and keeping four unregistered dogs; owning and keeping four dogs together or alone creating noise by barking which persistently occurred to such a degree that it unreasonably interfered with the peace, comfort or convenience to a person, keeping an excess number of dogs - respondent sought order from the Court for the removal of the dogs from the appellant's property - part way through trial appellant pleaded guilty to count 2, the respondent withdrew counts 1 and 3 and sought an order pursuant to section 47 of the Dog and Cat Management Act 1995 (SA) that the appellant be prohibited from keeping dogs on his property - magistrate convicted appellant, ordered that he enter into a $500 bond to be of good behaviour for 12 months and prohibited appellant from keeping any dogs on the property.

Appellant appealed magistrate's orders on the grounds that they were manifestly excessive - consideration of section 47 of the Dog and Cat Management Act 1995 (SA) - magistrate had no power to order good behaviour bond - permanent order prohibiting appellant from keeping dogs on the property manifestly excessive in the circumstances.

Appeal allowed - good behaviour bond imposed by magistrate set aside - conviction imposed by magistrate upheld - order prohibiting the appellant from keeping dogs on property varied to include the following: that the defendant is at liberty, on seven days’ notice to the respondent, to apply to the Magistrates Court to discharge or vary the prohibition order.

Dog and Cat Management Act 1995 (SA) s 47, referred to.

DALAYA v CITY OF PLAYFORD
[2005] SASC 71

Magistrates Appeal

GRAY J:

1. In this matter I propose to follow a course that has the agreement of both Mr Dalaya, who appears in person, and the respondent, who appears by counsel.

2. The magistrate imposed a conviction on count 2 of the complaint and ordered that Mr Dalaya enter into a bond to be of good behaviour.  He also made the following order:

   Pursuant to s.47 of the Dog and Cat Management Act, 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 December 2004.

3. On appeal, counsel for the City of Playford acknowledged that the magistrate did not have power to order Mr Dalaya to enter into a good behaviour bond and, accordingly, I propose to discharge that order.

4. Counsel for the City of Playford at first submitted to me that the order of prohibition was a permanent order that could not be varied.  However, later in the submissions it was acknowledged that there was a power to vary that order.  To make the matter explicit, I propose to vary the order made by the magistrate to include the following: 

   That the order for prohibition is until further order and that Mr Dalaya is to have liberty to apply to discharge or vary that order to the Magistrates Court.

5. On such application Mr Dalaya will have to satisfy the court that it is appropriate that he be allowed to have dogs at Berryman Road, Smithfield Plains.   

6. During the course of the appeal, Mr Dalaya told me that he still had two registered dogs on the property.  He told me that he understood that when he lodged the appeal it operated as a stay of the order.  That would not appear to be correct.  Mr Dalaya has agreed to remove forthwith the two dogs currently at 8 Berryman Road, Smithfield Plains until he has a variation of the order that allows him to keep dogs at those premises.   In the course of this hearing, I explained these matters to Mr Dalaya and he indicated that he would be content that the appeal be disposed on that basis.

7. Having regard to Mr Dalaya's assertions that he had previously not understood matters before the Magistrates Court, I had Mr Dalaya explain to me in his own words the effect of what I had said to him, and he satisfied me that he clearly understands what I propose to do and agrees to it.  Counsel for the City of Playford also agrees.

8. The order made by the magistrate that Mr Dalaya enter into a good behaviour bond is set aside.  The conviction recorded is to remain.  The order for prohibition made by the magistrate is to be varied by adding the following: 

   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.