Gilbertson v District Council of Grant

[2010] SASC 81

SUPREME COURT OF SOUTH AUSTRALIA

(Appeals to a Single Judge: Civil)

GILBERTSON v DISTRICT COUNCIL OF GRANT

[2010] SASC 81

Judgment of The Honourable Justice Nyland

1 April 2010

ANIMALS - VARIOUS STATUTORY PROVISIONS - DOGS - REGISTRATION, IDENTIFICATION OF OWNERS AND SEIZURE AND DESTRUCTION

ANIMALS - VARIOUS STATUTORY PROVISIONS - DOGS - REGISTRATION, IDENTIFICATION OF OWNERS AND SEIZURE AND DESTRUCTION - SEIZURE AND DESTRUCTION - DESTRUCTION

Appeal against interlocutory orders made by District Court Judge - appellant owner of a dog found to be unduly dangerous - respondent made a destruction order pursuant to s 50 Dog and Cat Management Act 1995 - appeal to the Administrative and Disciplinary Division of the District Court constituted of a Master - destruction order suspended pending the determination of the appeal - appeal dismissed - respondent Council intended to give effect to destruction order - appellant absconded with the dog - appellant lodged an appeal to a District Court Judge - respondent filed an interlocutory application seeking order for return of dog - order that dog be returned to respondent Council before appeal could proceed and stay of hearing of appeal until appellant complied with order to return dog - appeal to Supreme Court - appellant argued that there was no power to make the order for return of dog as destruction order had lapsed - effect of date specified in destruction order - date in destruction order was not mandatory, but facultative - destruction order suspended during appeal - upon dismissal of appeal order resurrected, notwithstanding nominated date for destruction has passed - appeal dismissed.

STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - INTERPRETATION ACTS AND CLAUSES - GENERALLY

STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - INTERPRETATION ACTS AND CLAUSES - GENERALLY - PRINCIPLES APPLICABLE

STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION

STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - RULES OF CONSTRUCTION - WHERE MEANING AMBIGUOUS OR UNCERTAIN - PRESUMPTIONS AS TO LEGISLATIVE INTENTION - OTHER PRESUMPTIONS

Appeal against interlocutory orders of District Court Judge - whether Judge had power to make the order for the return of the dog when date in destruction order had lapsed - order suspended pending appeal - if date mandatory appeal would be rendered nugatory as order would lapse before appeal heard - statute interpreted in a way as to avoid an unreasonable result - date in destruction order was not mandatory but facultative - order suspended pending finalisation of appeal pursuant to s 58(6) Dog and Cat Management Act 1995 - upon dismissal of appeal such order was resurrected, notwithstanding the nominated date for destruction has passed - appeal dismissed.

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - STAY OF PROCEEDINGS

Appeal against stay of proceedings - Judge ordered appeal from Master's decision be stayed until such time as dog returned by appellant to respondent Council - whether proceedings should be stayed until dog returned to respondent Council - appeal dimissed - Court cannot allow a situation to arise in which an appellant is able to frustrate consequences that would flow if the appeal was dismissed.

Dog and Cat Management Act 1995 ss 47(3), 50(1), 50(2), 58(6); District Court Civil Rules 2006 RR 283, 290; District Court Act 1991 s 43(2)(a), referred to.
Luke v Inland Revenue Commissioners [1963] AC 557; Macalister v R (1990) 169 CLR 324, considered.

GILBERTSON v DISTRICT COUNCIL OF GRANT
[2010] SASC 81

1. NYLAND J:          This appeal is against interlocutory orders made by a District Court Judge on 12 November 2009 and 17 November 2009 respectively.  It arises out of an order made for the destruction of a Staffordshire cross dog called Max.  The appellant is the registered owner of the dog.  On 15 May 2009, Max was alleged to have attacked another dog called Rusty at Moorak when he was not under the effective control of any person and was wandering at large.

2. The respondent Council found that the injuries to Rusty were serious enough for the Council to determine that Max was unduly dangerous and that the incident would constitute an offence under the Dog & Cat Management Act 1995 (SA) (“DCMA”). 

3. On 27 May 2009 the respondent issued a destruction order which advised the appellant that the Council had ordered that the dog be destroyed by 27 June 2009. The respondent was empowered to make that order pursuant to s 50(1)(a) DCMA. That section provides:

   A council may, in accordance with this Division, make an order of any of the following classes in relation to a specified dog:

   (a)     a Destruction Order … 

4. Section 50(2) states that a destruction order requires -

   (a)     the dog to be destroyed within the period specified in the order (but not less than one month after the date the order takes effect); and

   (b)     the dog, until destroyed, to be kept or detained at a place specified in the order (or at some other place subsequently approved by the council).

5. On 22 June 2009 the appellant lodged an appeal against the destruction order to the Administrative and Disciplinary Division of the District Court constituted of a Master. Section 58(6) DCMA provides that the operation of a decision appealed against requiring a dog to be destroyed is suspended pending the determination of the appeal.

6. The appellant subsequently made an application to the Master for release of the dog to him pending the hearing of the appeal.  On 29 June 2009 the Master delivered short reasons in which he indicated that he was not prepared to direct the release of the dog from the control of the respondent to the appellant.  He ordered that the dog remain at the South East Animal Welfare League premises, but the respondent was to continue to make the dog available at a time convenient to both the appellant and the respondent each day, up to half an hour in one session.  The appellant was to be given direct access to the dog.  If there were any issues concerning muzzling or a collar, the Master gave liberty to apply.  At the same time, the Master set the appeal down for hearing at Mount Gambier to commence on Tuesday, 28 July 2009.  The Master subsequently heard evidence with respect to the appeal, in the course of which he heard from about 11 witnesses.  This included evidence from the appellant. 

7. On 14 August 2009, the Master made an order dismissing the appeal.  On 18 August 2009 he emailed to the parties his detailed reasons for making that decision.  He upheld the finding by the respondent that Max was an unduly dangerous dog[1] and stated that the consequence of the appeal was that the dog would be put down.[2] 

   [1] Reasons for decision of Master dated 18 August 2009 at [174].

   [2] Ibid at [182].

8. Pursuant to District Court Rule 283, the appellant had 21 days to appeal against the decision of the Master.  The last day to lodge an appeal against the Master’s decision was therefore 8 September 2009 and it was the intention of the respondent to give effect to the destruction order immediately after that date.  Following a request from the solicitors for the appellant, however, the respondent agreed to provide the appellant with an opportunity to have a final visitation with the dog.  Arrangements were made for this to occur at the South East Animal Welfare League premises on 7 September 2009.  The appellant used this opportunity, without the knowledge or consent of the respondent, to remove the dog from those premises.  The appellant then absconded with the dog.  The whereabouts of the dog is currently unknown. 

9. On 30 September 2009 the appellant lodged an appeal against the decision of the Master. Pursuant to the provisions of s 43(2)(a) District Court Act 1991 (SA) (“DCA”) an appeal from a decision of a Master is to the District Court of South Australia constituted of a Judge.

10. On 21 October 2009 the appellant filed an interlocutory application in the District Court seeking inter alia an extension of time within which to appeal against the order of the Master and for an order that the destruction order be stayed pending the outcome of his appeal.

11. On 26 October 2009 the respondent filed an interlocutory application in the District Court seeking an order that the dog be returned to its lawful custody. 

12. On 12 November 2009 a District Court Judge granted the application for an extension of time within which to lodge the appeal and he stayed the order for destruction of the dog until further order.  The Judge took the view, however, that the status quo should be restored before the appeal could proceed.  He relied on the power contained in District Court Rule 290(1)(c) (as it then was) to make interlocutory orders in relation to an appeal and directed that the appellant return the dog to the respondent by delivering him to the South East Animal Welfare League by 4.00 pm on Monday, 16 November 2009. 

13. The appeal against the order of the District Court Master was listed for hearing in the District Court on Wednesday, 18 November 2009.  On 17 November 2009, however, the matter was brought on for further hearing before the District Court Judge due to the failure of the appellant to comply with the order for return of the dog to the South East Animal Welfare League. 

14. As a result of the appellant’s non-compliance with that order, the Judge vacated the date for the hearing of the appeal and made an order, staying the hearing of the appeal until further order. 

15. The District Court Judge considered that to allow the hearing of the appeal to proceed in circumstances in which the appellant had not complied with the order for return of the dog to the respondent would be to allow the appellant to abuse the process of the court.  It would prevent the court from effectively exercising its jurisdiction to hear and determine the appeal by frustrating the consequences which might flow if the appeal were to be dismissed.  This, he said, would undermine confidence in the court.

16. This appeal is not concerned with the substantive issue, that is the appeal against the decision of the Master and the ultimate disposition of the dog.  This appeal relates only to the interlocutory order made by the District Court Judge on 12 November 2009 for the dog to be returned to the respondent pending the hearing of the appeal and the further order made on 17 November 2009, staying the appeal until such time as the dog was returned pursuant to that order. 

17. The thrust of the argument presented by the appellant on the hearing of the appeal was that the District Court Judge did not have any power to make the order for the return of the dog to the respondent.  The appellant submitted that at the time the dog was removed from the custody of the respondent, there was no valid or operative order in place which authorised the destruction of the dog nor any authority which justified its continued detention.  The destruction order issued by the respondent on 27 May 2009 required the dog to be destroyed by 27 June 2009.  As that date had passed without the dog being destroyed, the order had lapsed.  There was therefore no basis upon which the dog was required to remain in the custody of the respondent.  As the appellant’s repossession of the dog was not in breach of any order, there was no status quo to be restored.  In those circumstances it was not appropriate for the Judge to rely on non-compliance with his order for return of the dog as a basis for his order to stay the appeal.  It was further asserted that the District Court Judge had erred in finding that the injunctive relief sought by the respondent for return of the dog was not in aid of a claim for final relief as the respondent had not filed a notice of alternative contention nor any cross-appeal claiming such relief.

18. It is fundamental to the argument presented by the appellant that once the date nominated in the order for destruction of the dog had passed, the destruction order ceased to have effect.  In this case, although the destruction order specified that the dog be destroyed by 27 June 2009, allowing for the one month period specified in s 50(2) DCMA, the earliest date upon which it could have been destroyed, was in fact 27 June 2009. The appellant lodged an appeal against the destruction order on 22 June 2009. As a result of the operation of s 58(6) DCMA, the operation of the decision requiring the dog to be destroyed was suspended pending the determination of the appeal.

19. If the argument presented by the appellant is correct, the hearing of the appeal before the Master was nugatory, as the destruction order would have lapsed five days after the filing of the appeal. In the normal course, as a matter of public safety, a Council would be expected to proceed expeditiously with the destruction of a dangerous dog and therefore fix a date for that to occur fairly soon after the expiration of the one month period required by s 50(2) DCMA. If the argument presented by the appellant is correct, then most orders would lapse before an appeal could be heard. An order for destruction could therefore be thwarted by simply lodging an appeal which would then not need to be pursued.

20. As a matter of construction, it is a well established principle that where a construction is reasonably open, a construction that will avoid an unreasonable result is to be preferred.[3]

    [3]    Luke v Inland Revenue Commissioners [1963] AC 557 at 577 (Lord Reid) approved of in Macalister v R (1990) 169 CLR 324 at 330 (Mawson CJ, Dawson, Toohey, Gaudron and McHugh JJ).

21. In my view, the mandatory direction in the order for destruction is the requirement that the dog be destroyed.  There is no mandate for the Council to destroy the dog by the specified date. The inclusion of the date is merely facultative.  It puts the owner on notice of the projected timeframe within which the Council will destroy the dog, absent an appeal or other order of the Court.  Once an appeal is lodged, the order for destruction is suspended until such time as the appeal has been resolved. 

22. In this case, once the Master dismissed the appeal, the suspension of the order ceased to have effect.  The order for destruction made on 27 May 2009 was thereby resurrected, notwithstanding that the nominated date for destruction had passed.

23. The appellant having failed in his appeal before the Master, the respondent quite properly allowed a further period of time for the appellant to pursue further rights of appeal before fixing a new date for the dog’s destruction. In my view the appellant was not entitled to remove the dog from the custody of the respondent pending the final resolution of this matter. As a result of the dismissal of the appeal by the Master, the respondent was entitled to the possession of the dog in accordance with s 50(2)(b) DCMA. The appellant had no enforceable right to it. The District Court Judge correctly found that the final relief sought by the respondent was the dismissal of the appeal and the enforcement of the destruction order. In my opinion, the Council was not obliged to make any counter claim in order to obtain the interlocutory relief granted by the District Court Judge.

24. It was further argued that if the order made for the return of the dog was a valid and competent exercise of power, non-compliance with that order was an offence pursuant to s 47(3) DCMA, which was punishable by a fine only. The Judge was not concerned with punishing the appellant for any offence provided by the legislation. The order for the return of the dog and the subsequent order for stay of proceedings were orders made by the Court to prevent its own processes from being the subject of abuse. As the Judge indicated, allowing the dog to remain in the possession of the appellant pending the finalisation of these matters, had the potential to frustrate the orders of the Court if the appeal was ultimately dismissed. The orders made by the Judge were simply designed to restore the status quo to enable the matter to proceed in a proper manner.  The fact that the appellant took advantage of the indulgence granted to him by the respondent on 7 September 2009 by removing the dog from the custody of the respondent and the appellant’s subsequent refusal to comply with the order for its return support the concern expressed by the District Court Judge as to the possibility of abuse of the processes of the Court. 

25. The appellant has failed to satisfy me that there are any grounds upon which I should interfere with the orders made by the District Court Judge.  The appeal is therefore dismissed and the matter remitted to the District Court.  I should add that the appellant sought an order that, in the event of the matter being remitted to the District Court, it be heard before a Judge other than the Judge who made the interlocutory orders, due to the possibility of apprehended bias.  I decline to make any direction with respect to that matter which, in my view, is more appropriately dealt with by the District Court Judge.