Kingborough Council v Bester - [2003] TASSC 30

[2003] TASSC 30

CITATION: Kingborough Council v Bester [2003] TASSC 30

PARTIES:  KINGBOROUGH COUNCIL
  v
  BESTER, Neil

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 15/2003
DELIVERED ON:  22 May 2003
DELIVERED AT:  Hobart
HEARING DATES:  15 May 2003
JUDGMENT OF:  Underwood J

CATCHWORDS:

Statutes - Acts of Parliament - Interpretation - Rules of construction - Words to be given literal and grammatical meaning - Ordinary and natural meaning to be applied.

Dog Control Act 2000 (Tas), s19(2).
Gilbert v Gulliver [1918] VLR 185; Chappell v A Ross & Sons Pty Ltd [1969] VR 376, followed.
Aust Dig Statutes [17]

REPRESENTATION:

Counsel:
           Applicant:  J F W Crotty
           Respondent:  M F Daly
Solicitors:
           Applicant:  James Crotty
           Respondent:  Hugh Murray LLB

Judgment Number: [2003] TASSC 30
Number of Paragraphs: 19

Serial No 30/2003
File No LCA 15/2003

KINGBOROUGH COUNCIL v NEIL BESTER

REASONS FOR JUDGMENT UNDERWOOD J

22 May 2003

The respondent was the owner of a black Rotweiller. On 12 February 2002, the respondent took his dog for a walk on a beach in the applicant's municipality. He had with him another dog. It was a small brown dog. The Rotweiller was on a leash. The other dog was not.

The respondent let the Rotweiller off the leash. It quickly ran up an embankment at one end of the beach and flushed out a possum. The Rotweiller chased the possum into the water, attacking it on the way. In the water, the dog seized hold of the possum. Meanwhile, the respondent stood at the water's edge, shouting at his dog, but to no effect.

A concerned bystander ran into the water fully clothed and pulled the dog back to the beach and it to its owner. The possum was left floating in the water. Other concerned bystanders coaxed the possum back to shore. It had injuries to its neck and eye, but after being cared for overnight, it apparently recovered sufficiently to take its leave from the home of its rescuers.

The respondent was charged with a breach of the Dog Control Act 2000 ("the Act"), s19(2), which provides:

"The owner or person in charge of a dog must not allow or incite the dog to attack an animal or chase a horse being ridden.
Penalty:
Fine not exceeding 10 penalty units."

The complaint was heard by Deputy Chief Magistrate M R Hill, sitting in a court of petty sessions. After evidence had been given to the above effect, counsel for the respondent submitted that there was no case for the respondent to answer. The learned magistrate heard submissions about whether the Act, s19(2) created an offence of strict liability or whether Parliament intended that some form of mens rea or mental element had to be proved. His Worship was referred to a number of authorities, including He Kaw Teh v R (1985) 157 CLR 523; Sweet v Parsley [1970] AC 132 and Gibbon v Fitzmaurice [1986] Tas R 137.

The learned magistrate took time…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kingborough Council v Bester

Details

AGLC: Kingborough Council v Bester [2003] TASSC 30
Case: [2003] TASSC 30
Decision Date: 22 May 2003

CaseChat Overview and Summary

The case of Kingborough Council v Bester involved the Kingborough Council bringing a motion to review a decision of the Deputy Chief Magistrate who dismissed a complaint that the respondent had breached the Dog Control Act 2000. The respondent, Neil Bester, had taken his dog for a walk on a beach in the municipality of the applicant and had let the dog off the leash, leading to the dog attacking a possum. The magistrate dismissed the complaint, finding that there was no evidence of the respondent allowing or inciting the dog to attack the animal. The Council appealed this decision to the Supreme Court of Tasmania.

The central legal issue before the court was the interpretation of the term "allow" in section 19(2) of the Dog Control Act 2000. The court needed to determine whether the act created an offence of strict liability or if it required some form of mens rea, or mental element, to be proven. Additionally, the court had to consider whether the respondent's failure to take any adequate action to prevent the attack after becoming aware of it constituted a breach of the Act.

Justice Underwood found that the magistrate had correctly interpreted the term "allow" as requiring actual knowledge or connivance, or extensive delegation of authority, where the defendant had delegated their power to prevent the act from being done. The court held that for a person to be said to allow a dog to attack an animal, they must be aware at the time of the act or omission that such an attack has commenced or is likely to commence. The court further found that the respondent's failure to take any adequate action to prevent the attack after becoming aware of it could amount to a breach of the Act.

The court quashed the order of dismissal and allowed the motion to review. The final disposition of the motion to review would be determined after hearing counsel, and the case would likely be re-heard in accordance with the court's judgment.

Orders