Harry v Inner West Council (No 3)

[2024] NSWSC 1027

Supreme Court

New South Wales

Medium Neutral Citation:

Harry v Inner West Council (No 3) [2024] NSWSC 1027

Hearing dates:

14 August 2024

Date of orders:

16 August 2024

Decision date:

16 August 2024

Jurisdiction:

Common Law

Before:

Basten AJ

Decision:

(1)   Extend the time for filing a summons seeking judicial review up to and including 27 March 2024.

(2)   Dismiss the amended summons filed on 27 March 2024.

(3)   Order that the plaintiff pay the defendant’s costs in this Court.

Catchwords:

ANIMALS – companion animals – dogs – menacing dog declaration made by authorised officer - validity

ADMINISTRATIVE LAW – judicial review of menacing dog declaration – irrelevant considerations – owner’s involvement in prior dog attacks –dog’s prior history of attacks – no express limitation on matters to be considered – subject-matter, scope and purpose of legislation – no implied limitation on addressing matters complained of

CIVIL PROCEDURE – judicial review – commencing proceeding – extension of time –10 months extension required – merit of claim – no prejudice to public or defendant – evidence of psychological disability

Legislation Cited:

Companion Animals Act 1998 (NSW), ss 3A, 11, 13, 16, 23, 33, 33A, 35, 36, 41, 47, 51, Pt 9, ss 79, 80, 83, 83C

Companion Animals Regulation 2018 (NSW), cll 30, 31, Pt 6

Mental Health (Forensic Provisions) Act 1990 (NSW), s 32

Supreme Court Act 1970 (NSW), s 69

Uniform Civil Procedure Rules 2005 (NSW), rr 59.4, 59.10

Cases Cited:

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10

Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352; [2015] HCA 7

Lo v Chief Commissioner of State Revenue (2013) 85 NSWLR 86; [2013] NSWCA 180

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40

Public Service Board of New South Wales v Osmond (1986) 159 CLR 656; [1986] HCA 7

Water Conservation and Irrigation Commission(NSW) v Browning (1947) 74 CLR 492; [1947] HCA 21

Category:

Principal judgment

Parties:

Tertia Lavinia Carmen Harry (Plaintiff) (unrepresented)
Inner West Council (Defendant)

Representation:

Counsel:
M Harker (Defendant)

Solicitors:
Lindsay Taylor Lawyers (Defendant)

File Number(s):

2023/00285324

JUDGMENT

1. BASTEN AJ: On 11 August 2022, the defendant Inner West Council (Council), through its authorised officer, made a declaration that a dog owned by the plaintiff, Tertia Harry, was a “menacing dog” within s 33A(1) of the Companion Animals Act 1998 (NSW). The plaintiff seeks judicial review of the declaration.

2. The declaration followed an investigation of a complaint by a resident of Rozelle who had encountered the plaintiff and her dog, known as “Rockstar”, whilst walking his dog “Maisy” one evening on Darling Street, Rozelle (Rozelle incident). He told a Council officer that the plaintiff’s dog had acted aggressively towards his dog (which he had picked up), but the plaintiff’s dog, had jumped up and bitten his dog on the leg.

3. A menacing dog declaration has a number of statutory consequences, including that (i) the dog must be desexed; (ii) whilst at home, it must be enclosed in a manner sufficient to restrain the dog and prevent a child from having access to it; (iii) whilst outside its home, it must be “under the effective control of some competent person” and must be “muzzled in a manner that is sufficient to prevent it from biting any person or animal”, and (iv) it cannot be under the control of a person who has more than one other dog under his or her control at the one time. ^[1] The plaintiff had, in the course of the investigation, expressed concern at the possibility that she might be required to desex the dog, on the basis that such a step might have adverse consequences for the health of the animal. She also claimed that consequence (iv), allowing her to walk Rockstar with no more than one other dog prevented her running her dog walking business, there was no constraint on her walking several other dogs without her own dog.

   1. Companion Animal Act, s 51(1A).

Jurisdiction of Court

4. Although there is a right of appeal to the Local Court from a declaration by an authorised officer that a dog is a “dangerous” dog, there is no such right of appeal with respect to a menacing dog declaration. ^[2] (It is not entirely clear from the Act that the consequences of a dangerous dog declaration are significantly more severe than those applicable to a menacing dog: see s 51(1); but see also Companion Animals Regulation 2018 (NSW) (Regulation), Pt 6.)

   2. Companion Animal Act, s 41.

5. In the absence of a right of appeal, the only relief available with respect to the declaration was to proceed by way of judicial review in the Supreme Court, pursuant to s 69 of the Supreme Court Act 1970 (NSW). Such a challenge is required to be lodged within three months of the date of the impugned decision. ^[3] With respect to the declaration made on 11 August 2022, time expired on 10 November 2022. The summons seeking judicial review was not in fact filed until 8 September 2023, some ten months out of time. The plaintiff has not formally sought an extension of time, nor provided any clear explanation as to the cause of the delay. The extension was opposed by the Council, but primarily on the basis that the application lacked merit. As there is no stay on the effect of the declaration (which has now been in force for two years) the appropriate course is to consider the merits and if warranted grant an extension of time. The Council accepted that no prejudice flowed from such a course.

   3. Uniform Civil Procedure Rules 2005 (NSW), (UCPR), r 59.10.

6. The Court’s judicial review jurisdiction is limited to ensuring that the Council did not exceed its statutory powers and functions in making the menacing dog declaration. Errors of that kind are broadly characterised as “jurisdictional error”, although administrative officers are generally understood to exercise powers or functions rather than “jurisdiction”.

7. Not all legal errors are categorised as “jurisdictional”, although the circumstances in which a statutory scheme permits an administrative officer to make unreviewable errors of law in exercising an administrative function are quite limited. (There was no privative provision protecting the Council in this case.)

8. Apart from jurisdictional error, the other basis of judicial review is described as “error of law on the face of the record”. Under the general law, the record was confined to the documents engaging the powers of the decision-maker, and the final determination or orders of that person or body. That understanding of the record was broadened in 1996 when the Supreme Court Act was amended to include s 69(4), which states that “the face of the record includes the reasons expressed by the court or tribunal for its ultimate determination”. At a time when it was understood that judicial review (in the form of prerogative writs) was confined to bodies exercising a judicial function, reference to the record of a “court or tribunal” was appropriate and clear in its scope. Once the scope of judicial review extended to all administrative decision-making, the nature of the record became more obscure. Thus, it is unclear whether s 69(4) extends to an administrative decision-maker who would not ordinarily be described as a “court or tribunal”. Indeed, s 69(4) may well not have been intended to extend to administrative decision-makers who, absent statutory provisions requiring otherwise, are not subject to a general law requirement to give reasons. ^[4] Section 69(4) was inserted in the Supreme Court Act in 1996.

   4. Public Service Board of New South Wales v Osmond (1986) 159 CLR 656; [1986] HCA 7.

9. It is not necessary to pursue the scope of s 69(4) further: the Council was content to deal with the claim on the basis that the plaintiff could treat the authorised officer’s reasons for her determination as part of the record for the purpose of identifying error of law on the face of the record. It is also unnecessary to pursue it because the errors apparently raised by the plaintiff are properly characterised as jurisdictional errors. Once it is submitted, for example, that the defendant took into account “irrelevant considerations”, the reasons become part of the evidence to establish the factual basis of a jurisdictional challenge and are relevant and admissible for that purpose.

Background

10. Before identifying the grounds of review, it is convenient to note the steps taken by the Council following receipt of a complaint from the owner of the dog allegedly attacked. The Rozelle incident took place on Saturday, 8 January 2022 shortly after 7:30pm; the owner of the victim made a complaint to the Council’s Companion Animal Team on Monday, 10 January 2022. An investigation was carried out, in the course of which the plaintiff was given an opportunity to be interviewed and provide her own account of the incident. She declined to do so.

11. On 11 July 2022, Ms Caroline Hamilton, a companion animal officer with the Council, completed an “Investigation Determination”. It identified the alleged attacking dog “Rockstar” as a South African Boerboel, and the alleged victim dog “Maisy” as a French Bulldog. The first two pages of the report set out the allegations made by the owner of Maisy; the third page was a list of attachments, including witness statements, photographs, certificates of registration for both dogs, and a printout from the Companion Animals Register maintained under Pt 9 of the Companion Animals Act of a “dog attack incident” (though which incident, or both, was unclear from the list of attachments).

12. The Investigation Determination then set out (at pp 4-6) facts as to which the Council was satisfied on the evidence before it, in 17 bullet point entries. Of these, 13 related to the Rozelle incident, although reference was made to a prior complaint in identifying the dog as Rockstar. The other four findings involved a prior incident involving the plaintiff as a person in charge of a dog (“Joey”) that had attacked, and two prior attacks recorded with respect to Rockstar, one of which was dismissed as “insufficiently established” on the evidence.

13. The findings resulted in a further set of considerations under the heading “Determination” which commenced with the following statement:

“An assessment of the evidence currently identifies that the following potential breaches of the [Act] … may have occurred on the time and date specified:”

Three findings were made in that section, namely that:

1. the plaintiff had failed to notify a change to the registration information for her two dogs, contrary to s 11(1) of the Act;

2. the plaintiff had not failed to keep Rockstar “under effective control” at the time of the incident, thus rejecting a possible breach of s 13 of the Act, and

3. Rockstar had rushed at and attacked Maisy without provocation on Saturday 8 January 2022, being a breach of s 16 of the Act.

The evidence for each of those findings was identified.

14. Under the heading “Regulatory action”, it was noted that the Council should:

1. issue two penalty infringement notices with respect to breaches of s 11;

2. issue a court attendance notice under s 16, for the purpose of seeking a control order from the Local Court pursuant to s 47 of the Act, and

3. prepare a notice of intention to declare Rockstar to be a menacing dog.

The last item may be implied from the inclusion of such a notice.

15. The notice of intention advised: (i) what should be done “immediately” with respect to the dog (pursuant to s 36 of the Act); (ii) the penalties for failure to comply with the statutory conditions; and (iii) the right to object to the proposed declaration (pursuant to s 35), by making representations to the Council “within 7 days of the date this notice was given to you”, and (iv) the effect of the declaration, if made. An email address for representations was provided.

16. The notice of intention, in the form of a letter, was dated 11 July 2022, but according to the plaintiff was received on 16 July 2022. She responded on 22 July 2022, objecting to the proposed declaration and providing an account of the Rozelle incident which cast Maisy as the aggressor. She also denied that Rockstar had bitten Maisy, or indeed, any dog, ever.

17. There were several further email communications between her and Ms Nelson, the officer of the Council authorised to determine whether to make the menacing dog declaration. On 28 July 2022, the plaintiff sent a final written submission, with attachments, resisting the making of the declaration (28 July submission). She did not repeat her account of the Rozelle incident, but, noting the factual dispute as to what occurred, submitted that the Council could not proceed on allegations in the absence of “official legitimate proof”.

18. The plaintiff provided evidence that on 26 November 2021 Rockstar had received an implant of Suprelorin, apparently effective for six months, being a testosterone suppressant. She also included a report prepared on 21 June 2020 by Dr Melissa Starling, entitled “Assistance Dog Suitability Assessment”, together with a second report of Dr Starling dated 21 June 2022, entitled “Menacing/Dangerous Dog Assessment”.

19. On 10 August 2022, Ms Nelson determined that a menacing dog declaration should be issued by the Council and that the Director General of the Office of Local Government and the plaintiff be advised of this decision within seven days. In fact, Ms Nelson advised the plaintiff of the determination that day. The declaration was signed by the authorised officer, Ms Hamilton, and dated 11 August 2022. In her determination, Ms Nelson addressed all the substantive issues raised by the plaintiff in her last 28 July submission.

Grounds of review

20. Although the plaintiff first filed a summons seeking judicial review on 8 September 2023, it was quickly superseded by a second summons filed on 18 October 2023. Both were largely incoherent. After the plaintiff had obtained pro bono advice, she filed an amended summons on 27 March 2024. The part of the amended summons identifying the decision under review referred to the declaration of 11 August 2022 as “the decision made by Ms Hamilton as an authorised officer” of the Council. Although it is true that Ms Hamilton signed the declaration, as explained above the decision to make the declaration was that of Ms Nelson. The report of Ms Hamilton, as the investigating officer, was a part of the process of decision-making, but the findings she made did not constitute an “ultimate determination”,^[5] that is a determination affecting a person’s rights or interests. ^[6] It was therefore not reviewable.

    5. Supreme Court Act, s 69(3).

    6. Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 580-581 (Mason CJ, Dawson, Toohey, Gaudron JJ); [1992] HCA 10.

21. Even had it been reviewable, it was superseded by the decision made by Ms Nelson which was effected by Ms Hamilton signing the declaration. So far as procedural fairness was concerned, the plaintiff had ample opportunity to respond to the factual findings by Ms Hamilton. She does not submit otherwise. Accordingly, to the extent that the amended summons misconceived the nature of the decision, it could be dismissed on that basis.

22. Nevertheless, the Council addressed the substance of the grounds and it is therefore appropriate for the Court to do the same.

23. The first ground, referred to as “a”, stated that the authorised officer (Ms Hamilton) took into account irrelevant considerations, “as recorded in a document headed ‘Investigation Determination’” dated 7 March 2022. Three such matters (particulars) were identified:

1. the plaintiff’s prior history, in relation to an incident at Henson Park, Marrickville, that did not involve the dog named Rockstar but a dog named Joey;

2. Rockstar’s “prior history of attack” including as recorded on the NSW Companion Animals Register an alleged incident at Leichardt Street, Glebe, on 13 October 2019 in circumstances where there has been “no formal finding of an attack by Rockstar”; and

3. incorrect records on the Companion Animals Register relating to the Glebe incident, namely that “Rockstar has a prior history of attacking a person … on 13/10/2019 causing a minor injury”. The record was said to be false.

   24. The second ground, identified as “b”, alleged that Ms Hamilton based her decision “in part, upon the incorrect records for Rockstar in the companion animals register relating to the Glebe incident”. The ground continued, discursively:

   “Under Ms Jenny Nelson’s instructions…, [the plaintiff] submitted a ‘full re submission of her representation contesting the Notice Of Intention to Declare a Dog to be a menacing Dog against the dog Rockstar’ at 2.36pm on 29 July 2022, just 1.5 hours before Ms Jenny Nelson’s cutoff time for Ms Harry’s final re submission. That email and all of it’s [sic] attachments are found in the additional affidavit. The material submitted proved that the CAR records on Rockstar were false, yet Ms Hamilton still proceeded with the Menacing Dog Order on 11/8/22.”

   25. In its written submissions in response, the Council treated this as an assertion that the decision was legally unreasonable and thus engaging a form of jurisdictional error. As it relates to the consideration of the Glebe incident, it may be addressed in dealing with particulars (ii) and (iii), which also related to the Glebe incident in 2019. There were in effect only two incidents the subject of the grounds of review: no challenge was directed to the operative findings as to the Rozelle incident in January 2022.

   26. Before dealing with each of these matters in turn, it is necessary to identify two legal principles.

Irrelevant considerations

27. The first is that, for the purposes of judicial review, taking into account an “irrelevant consideration” is to be understood as breaching a statutory prohibition; that is, taking account of a matter which is not permitted to be taken account of in the proper and lawful exercise of the administrative function. ^[7]

    7. Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 40 (Mason J); [1986] HCA 40.

28. Some considerations are prohibited by general laws, including those relating to discrimination on the grounds of race, gender and other factors. That was not always the case. In 1947, a statute conferring discretion on a Commission to grant or refuse consent to the transfer of an irrigation-farm lease was held to permit refusal of consent to an Italian farmer on the grounds of his ethnic origins. ^[8] However, generally, the relevant prohibition will be found within the terms of the specific statute conferring authority and, if no particular matter is identified as a prohibited consideration, the prohibition must appear by implication from the subject-matter, scope and purpose of the legislative scheme. ^[9]

    8. Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492; [1947] HCA 21 (Browning).

    9. Browning at 505 (Dixon J); Peko-Wallsend at 40 (Mason J); Lo v Chief Commissioner of State Revenue (2013) 85 NSWLR 86; [2013] NSWCA 180 at [9].

29. Where a person is charged with committing an offence, the criminal law generally insists upon the charge being considered on its merits and not by reference to past misconduct or misconduct on other occasions. But that is not always so: if misconduct on other occasions demonstrates a tendency to act in a particular way, there will be circumstances in which the probative value of such evidence exceeds the potential prejudice and it is admissible.

30. The Companion Animals Act does create offences, but not against animals. Furthermore, the present proceedings are not concerned with a criminal offence, but with a regulatory scheme for the control of animals. In principle, prior occasions upon which a dog owner has been unable to control his or her dog, and prior occasions on which the particular dog has behaved badly, may reasonably be treated as relevant to whether a declaration should be made in relation to the dog, or prosecution initiated against the dog’s owner for an offence, and if so, by what procedure.

27. As the Council submitted, there is nothing in the legislative scheme which requires an authorised officer to treat such matters as irrelevant in all circumstances. Indeed, rather the contrary. The principal object of the Act, set out in s 3A, “is to provide for the effective and responsible care and management of companion animals”. The primary responsibility placed on owners and persons in charge of dogs is to keep a dog in a public place “under the effective control of some competent person”: s 13. Persons convicted of certain offences under the Act may be permanently disqualified from owning a dog or being in charge of a dog in a public place: s 23(1).

28. Importantly, the Act makes provision in Pt 9 for a Register of Companion Animals: s 79. It provides for records to be included on the Register of each registered companion animal, and its owner and, relevantly, the “compliance history” of the owner: s 80(2)(d). The “compliance history” includes a record of any conviction of the person for an offence against the Act, or other legislation, the issue of a penalty notice with respect to such an offence, the making of a control order and, pursuant to the Regulation, “dog attack information”. ^[10] Indeed, the Regulation requires that a council enter information concerning a dog attack, defined to include “an incident that involves or is alleged to involve a dog rushing at, attacking, biting, harassing or chasing a person or animal (other than vermin), whether or not any injury is caused to the person or animal” within 72 hours of receiving such information. ^[11]

    10. Companion Animals Act, s 80(4); Regulation, cl 31.

    11. Regulation, cl 31(3) and (4) (emphasis added).

29. No doubt for privacy reasons, access by members of the public to the Register is limited. ^[12] However, a local authority may approve any employee or class or its employees to have access to the Register: s 83C(1). ^[13] It is, therefore, a significant purpose of the maintenance of the Register to provide access to council officers authorised for the purposes of the Companion Animals Act, which will include access to allegations about dog attacks, as well as the prior history of dog owners. The legislative scheme is thus inconsistent with any implied limitation on the use to which authorised officers can put information contained on the Register in carrying out the statutory functions of a council with respect to companion animals, including considering making a menacing dog declaration.

    12. Companion Animals Act, s 83.

    13. See also Regulation, cl 30.

Exercising an administrative power

34. The second principle to be borne in mind is that the authorised officer is not adjudicating the commission of an offence, nor imposing a punishment for criminal conduct. That function is vested in the Local Court in which the rules of evidence and criminal procedure apply. Elements of the offence must be established beyond reasonable doubt for a finding of guilt. By way of contrast, the authorised officer of a local council, in considering whether to make a menacing dog declaration, is not subject to any such constraints. If a charge is laid, he or she is not required to await the outcome of the prosecution for the offence, nor bound by the conclusion. As the High Court stated in Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd,^[14] in relation to the regulation of commercial radio broadcasting, “it is not offensive to principle that an administrative body is empowered to determine whether a person has engaged in conduct that constitutes a criminal offence as a step in the decision to take disciplinary or other action”. ^[15] The reasoning continued, by reference to another example:

“There is no reason to suppose that a Commonwealth public housing authority might lack the capacity to terminate a lease on the ground of the tenant’s use of the premises for an unlawful purpose not withstanding that the tenant has not been convicted of an offence arising out of that unlawful use.”

Further the joint reasons stated at [49]:

“Where a person is prosecuted for the relevant offence, the Authority is not bound by the outcome of the criminal proceeding and may come to a contrary view based upon the material and submissions before it.”

14. (2015) 255 CLR 352; [2015] HCA 7 (ACMA v Today FM).

15. ACMA at [33] (French CJ, Hayne, Kiefel, Bell and Keane JJ).

35. These principles have direct application to the function of the authorised officer making a declaration under s 33 of the Companion Animals Act. Application of these principles is sufficient to demonstrate that the ground relating to irrelevant considerations is misconceived. However, it is convenient to address each of the three particulars of ground a and ground b.

Consideration of grounds of review

36. Ground a alleged the taking into account of irrelevant consideration, identified in three particulars.

Henson Park incident – April 2019

37. Particular (i) appears to have been directed to the following statement in the Investigation Determination:

“The defendant Ms Harry has a prior history of being in charge of a dog that attacks, recorded on the NSW Companion Animals Register as Dog Attack Incident A19052306 and Inner West Council reference REQ2019-035291, related to an attack on a dog causing injuries that required medical treatment that occurred at Henson Park, Marrickville in April 2019 and for which a Penalty Infringement Notice was issued under s 16 of the [Act]. The alleged offending dog in this incident was a dog walking/minding client’s animal named ‘Joey’ …. A search of Council records and documentation from Council’s legal department indicates that the infringement notice was court-elected by Ms Harry and, following several court appearances, was dismissed by the magistrate based on a successful s 32 Mental Health application. ^[16]

...

An allegation concerning the dog ‘Rockstar’ as displaying aggressive behaviour and/or also being involved in the dog attack at Henson Park, Marrickville was evaluated based on the testimonies obtained during that investigation and found to be insufficient.”

16. Referring to a power to dispose of a summary offence under s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW), referred to below.

38. As noted above, the plaintiff made two substantive responses to the Investigation Determination. Neither made specific reference to the Henson Park incident and the dog Joey. It is therefore unsurprising that no reference was made to this matter by Ms Nelson in her reasons for determining that a declaration should be issued. No issue was taken with Ms Nelson’s conclusion or reasons. Consideration of the prior history with respect to the attack by a dog under the plaintiff’s control was not prohibited. There is no basis to infer that the reliance placed on it was legally improper or that it exceeded the power of the authorised officer.

Glebe incident – 13 October 2019

39. It is convenient to deal with particulars (ii) and (iii) together as both relate to an incident which occurred at Leichardt Street, Glebe on 13 October 2019. Indeed, ground b also dealt with that incident and will be addressed below.

40. The Glebe incident was treated by Ms Hamilton as part of Rockstar’s “prior history of attack”. Particular (ii) noted that there had been “no formal finding of an attack by Rockstar”. However, in keeping with the principles stated in ACMA v Today FM, there was no basis in the Companion Animals Act, or any other legal source, for excluding consideration of an incident because there had been “no formal finding of an attack”, whatever that may mean. It was a matter for the authorised officer to consider on the material before her whether the incident of which complaint had been made in 2019 had occurred. As already noted, if a dog has a prior history of attack, it is not possible to conclude that an authorised officer is prohibited from that into account in determining whether to make a menacing dog declaration, or take other action, or no action.

41. It was not suggested that the information was used for an improper purpose. It may be inferred from the Investigation Determination that it was primarily relied on to charge an offence (rather than issue a penalty notice), though that was not the limit of the available uses.

42. Particular (iii) alleged that the attack on 13 October 2019 causing the owner of another dog to suffer a minor injury “was found to be false by evidence heard in Court on 27/3/21”. The rest of the particular set out, tendentiously, statements of fact as to what was shown by the evidence, some of which it quoted, some of which it did not. It relied in part on a transcript (possibly prepared by the plaintiff) of a recording of the incident, including the plaintiff’s comments, for example as to which dog growled first. The transcript was in a volume of material tendered by the plaintiff in this Court, but it was unclear whether it had been provided to the Council officers prior to the making of the declaration: much of the volume post-dated the declaration and could not have been before the officers. The plaintiff’s affidavit filed on 8 September 2023, to which the volume was exhibited (and not properly attested), did not state which (if any) of the exhibited documents were before the officers. It was not amongst the precisely identified documents before Ms Nelson, nor amongst the documents identified by Ms Hamilton as before her.

43. The Investigation Determination referred to the incident, which had been investigated by the City of Sydney Council, as an attack “on a person and their dog, causing minor injuries”, for which penalty infringement notices were issued. The plaintiff took the matter to the Local Court; the magistrate dismissed the charge pursuant to s 32 of the Mental Health (Forensic Provisions) Act and imposed conditions in the form of a psychological health plan for the plaintiff. Pursuant to s 32(4):

(4)   A decision under this section to dismiss charges against a defendant does not constitute a finding that the charges against the defendant are proven or otherwise.

44. The entry in the Register for the incident recorded the following:

“Summary of Attack from investigating officer: a few moments before the attack there was growling from both dogs. The complainant walked away carrying his dog. The attacking dog then followed and chased them and knocked the complainant over. Because of the force of being knocked over they dropped their own dog and the attacking dog then pinned the other dog. Penalty notice issued. Court Elected; Downing Centre Local Court: no findings made/dismissed.”

45. It is not clear what evidence (if any) was put before Ms Hamilton to support a finding that the Companion Animals Register record was incorrect or false. Nor was the element of falsity identified; it was not obvious. The record contained three statements. The first was a summary of the investigating officer’s report; the second identified the steps taken; the third identified the outcome. There may have been a dispute as to the accuracy of the summary, but the court did not rule upon it. In any event, the accuracy of the document was not relevant to whether it was a document to which the officer was entitled to have regard.

46. It is likely that Ms Hamilton had other information available to her as to the incident, as the Register record does not refer to the Mental Health (Forensic Provisions) Act. No suggestion was made in either of the responses to the Investigation Determination that there was any inaccuracy in relation to the account of the Glebe incident, so far as it went. Again, it is unsurprising that Ms Nelson made no reference to the incident in her reasons.

Ground b

47. The allegation contained in ground b has been set out at [24] above. The Council treated this somewhat obscure ground as seeking to rely upon the principle of manifest unreasonableness as a form of jurisdictional error. There was, as the Council further submitted, no basis for upholding such a ground. The issues before the Council officers in making the menacing dog declaration were the nature and circumstances of the Rozelle incident. The owner of Maisy had given explicit details which supported the view that Rockstar had made an unprovoked attack on Maisy. His account also supported the view that Maisy had been bitten in the course of the attack. As the plaintiff declined to be interviewed, and as the only available account was not inherently implausible, it is unsurprising that it was accepted. The investigation was, on its face, thorough and the result, if not inevitable, was not unreasonable. There was no basis to find that it was manifestly unreasonable in the legal sense.

48. There might, on one view, be an alternative understanding of ground b, namely an allegation that the officers had failed to take into account a mandatory consideration.

49. On the latter approach, the reference in ground b to the timing of the 28 July submission may have been intended to imply that the 28 July submission had not been taken into account. However, that was patently false. Ms Nelson addressed it paragraph by paragraph in her reasons for determining that a menacing dog declaration should be made. One matter the 28 July submission did not address was the Glebe incident.

50. The reference to the “additional affidavit” was identified in oral submissions as a reference to an affidavit filed on 13 December 2023. That added no admissible material to that exhibited to the plaintiff’s affidavit filed on 8 September 2023 and was rejected. However, reading the reference as being to the 8 September 2023 affidavit read in this proceeding, and even if there were some unidentified errors in the records for Rockstar on the Register, those were errors which were required to be identified to the decision-maker and are not a matter for assessment by this Court.

51. On either reading of ground b, it did not identify a jurisdictional error, nor any error permitting review.

Extension of time

52. As explained above, the summons seeking judicial review was not filed within the time provided under UCPR, r 59.10. Although there was no notice of motion, the plaintiff accepted that she needed an extension of time and sought one orally. The first question is as to what date the extension is required.

53. The first summons was filed on 5 September 2023. It contained a long explanation of the background to the commencement of proceedings (which, if relevant, should have been in an affidavit). It identified orders sought under the Judiciary Act 1903 (Cth) and identified grounds by setting out provisions from the Administrative Decisions (Judicial Review) Act 1997 (Cth). No particulars of the grounds were provided. All that can be said is that it correctly identified the decision to be reviewed. It was not in a form which warranted the grant of an extension of time as it clearly required wholesale amendment.

54. A second summons was filed on 18 October 2023 in similar form, but identifying the Council, rather than its officers, as the appropriate defendant. The grounds still lacked specificity and thus failed to comply with UCPR, r 59.4(c). As with the earlier summons, the necessary extension of time would not have been granted had it then been sought.

55. The amended summons filed on 27 March 2024, which was listed for hearing, broadly complied with the rules and would be the appropriate subject for an order extending time.

56. There is much to be said for the view put forward by the Council that even the amended summons was so misconceived and lacking in substance that, when combined with the absence of an explanation for the delay in commencing proceedings, it would warrant refusal of the necessary extension of time. However, there are three reasons for not taking that approach. First, the delay caused no prejudice to the Council, nor to the public interest, in circumstances where the declaration has been effective and in force throughout the period of two years since it was made. It is also fair to say that, at least since 5 September 2023, the Council was on notice that its declaration might be reviewed. Secondly, whilst the medical evidence in support of the plaintiff’s psychological difficulties is sparse, it is sufficient to explain in part the delay. (The plaintiff’s dealings with the Federal Court, informally recounted in the first summons, provide no plausible explanation for the delay.) Thirdly, as the matter has now proceeded to a hearing, and can be disposed of on the merits, no purpose is served by refusing an extension of time.

57. Before leaving the matter, it is appropriate to record that several further emails were received by my associate from the plaintiff after judgment was reserved. Such communications are inappropriate and do not require a response. However, one matter should be addressed. In an email sent at 4.45pm on Wednesday, 14 August, the plaintiff asserted that I had said in Court that I would “adjourn the matter for 28 more days if [the plaintiff] could obtain a lawyer by then”. That misstated the exchange which was as follows: ^[17]

“His Honour:   The only reason I would adjourn it would be the possibility that within the next 28 days you found a lawyer to represent you.

Plaintiff:   That wouldn’t be a possibility at all, because I’m waiting – I’ve got no money for that.

His Honour:   Yes. So we go ahead.

Plaintiff:   Well, the thing is – the other thing –

His Honour:   I’m not proposing to adjourn it. I’ll refuse your application to vacate the hearing.”

17. Tcpt, 14/08/24, p 10(34)-(45).

58. If the Court were to infer that the plaintiff was making an application to reopen the order made (and entered) yesterday to refuse the application to vacate the hearing, that application should be refused. Not only there a misapprehension as to what was said in Court (and I appreciate that the plaintiff did not have the transcript and may not have understood what was said at the time) but it is now clear that the proceeding was bound to fail.

Orders

59. For these reasons the Court makes the following orders:

1. Extend the time for filing a summons seeking judicial review up to and including 27 March 2024.

2. Dismiss the amended summons filed on 27 March 2024.

3. Order that the plaintiff pay the defendant’s costs in this Court.

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Endnotes

Decision last updated: 16 August 2024