Klewer v Coffs Harbour City Council

[2003] NSWSC 637

CITATION:	Klewer v Coffs Harbour City Council [2003] NSWSC 637
HEARING DATE(S):	14 July 2003
JUDGMENT DATE:	21 July 2003
JUDGMENT OF:	Simpson J
DECISION:	summons and notice of motion filed on 16 June 2003 dismissed; plaintiff is to pay the Council's costs of the proceedings
CATCHWORDS:	identification and registration of companion animal - responsibilities for control of dogs - procedures for dealing with seized animals
LEGISLATION CITED:	Companion Animals Act 1998 (NSW), ss 5, 8, 12, 13, 62, 63, 64, 65,
PARTIES :	Lucy Klewer - Plaintiff Coffs Harbour City Council - Defendant
FILE NUMBER(S):	SC 11477/03
COUNSEL:	P O'Loughlin - Defendant
SOLICITORS:	MBT Lawyers - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SIMPSON J

Monday 21 July 2003

11477/03

Lucy KLEWER v COFFS HARBOUR CITY COUNCIL

JUDGMENT

1 HER HONOUR: By summons filed on 16 June 2003 the plaintiff, Lucy Klewer, who has appeared for herself in these proceedings, claims:

(i) an order that the defendant (the Coffs Harbour City Council, to which I will refer as “the Council”) be restrained from disposing of two Labrador dogs pending the outcome of proceedings in the Local Court;

(ii) an order that the two Labrador dogs be released to the plaintiff forthwith; and

(iii) an order that the defendant pay the plaintiff’s costs of the proceedings.

By notice of motion filed on the same day the plaintiff claims orders in essentially the same terms as those contained in the summons.

2 The plaintiff’s application involves consideration of some of the provisions of the Companion Animals Act 1998 (“the Act”), the long title of which is:

“An Act to provide for the identification and registration of companion animals and for the duties and responsibilities of their owners; and for other purposes.”

3 By s5(1) of the Act a dog is a companion animal. By the same subsection a place that the public is entitled to use is a public place.

4 By s8(1) of the Act a companion animal is required to be identified as required by the regulations from the time it is twelve weeks old. Cl.6 of the Regulation made under the Act specifies that the identification required by s8(1) of the Act is to be by means of the subcutaneous implantation of a micro-chip. Cl. 9 of the Regulation prescribes the information to be contained on the micro-chip which includes the name, residential address and contact details of the owner of the animal, and the address at which the animal is normally kept. By s9 of the Act a companion animal is required to be registered under the Act from the time it is six months old. The owner of an unregistered companion animal is guilty of an offence. Cl. 8 of the Regulation prescribes the fee to be paid for registration. By s12(1) of the Act a dog is required to have a collar around its neck, attached to which is a name tag showing the name of the dog and the address or telephone number of its owner; and, once the dog is registered, its current registration tag. By sub-s(2), non-compliance on the part of an owner with sub-s(1) constitutes an offence.

5 By s13(1) of the Act a dog in a public place must be under the effective control of some competent person by means of an adequate chain, cord or leash. By sub-s(2), contravention of sub-s(1) on the part of the owner, or, in the absence of the owner, on the part of another person who is of or above the age of 16 years and is in charge of the dog at the time, is guilty of an offence. By sub-s(3) any person (including an authorised officer) can seize a dog that that person finds in a public place in contravention of the section. (By a combination of s5(1) and s6, an “authorised officer” is defined to include an employee of a local council, authorised by the council for the purposes of the Act.) If the owner of the dog is present, it may not be seized except by an authorised officer, and then only if the contravention continues after the owner has been told of the contravention.

6 Part 7 of the Act is entitled:

“Procedures for dealing with seized animals.”

S62 provides as follows:


“ 62. Seized animals to be returned to owner or taken to council pound
(1) A person who seizes an animal under the authority of this Act (referred to in this Part as a " seized animal ") must cause it to be delivered as soon as possible to its owner if the owner can be identified or otherwise to any duly authorised employee or agent of the council of the area in which the animal was seized at a council pound.

(2) A person who seizes an animal and does not comply with the requirements of this section is guilty of an offence.

Maximum penalty: 20 penalty units.”

7 By s63 of the Act, when a seized animal is delivered to a council pound, the person in charge of the pound is to give notice of the seizure of the animal to the person who appears (from the best endeavours of the person in charge to establish who the owner is) to be the owner of the animal. Notice of seizure is not required to be given if those best endeavours fail to establish the name and address of the owner of the animal. By s64(1) where a seized animal has not been claimed, the council is empowered to sell or destroy the animal after a period of fourteen days following notice, or, where notice is not required, after seven days following delivery of the animal to the pound. By s65 a council is empowered to determine release fees (being fees to be paid for the release of an animal detained under Part 7) and maintenance charges (being charges to be paid for the maintenance of an animal during its detention).

facts

8 The evidence establishes the following facts.

9 In September 2002 the Council instituted a Companion Animal Registry implementing the procedures prescribed by the Act and the Regulation made thereunder. A previously operational “tag” system was, at that time, abandoned.

10 As at 4 February 2003 the plaintiff was the owner of two Labrador dogs, one called Jesse, and one called Leo. They were ordinarily kennelled at the plaintiff’s home at Coachman’s Close Korora, in northern New South Wales. So far as the evidence goes, they were ordinarily there confined securely.

11 On 4 February 2003 the dogs escaped from the plaintiff’s back yard. They were observed at a local resort in Coffs Harbour where they were pursued around a golf course and a lagoon area. These were areas that the public was entitled to use. Eventually, during the afternoon, staff of the resort were able to capture the dogs. At the time of capture they remained in an area that the public were entitled to use: that is, for purposes of the Act, they were in a public place. The older dog, Jesse, had attached to his collar a green tag which signified that he had previously been registered. Inscribed on the green tag was a registration number, but no other information. The green tag was of the kind used under the system abandoned in September 2002. Neither dog was carrying any identification of its owner or any indication of an address at which it was ordinarily kennelled.

12 By the time the dogs were captured it was after 4.00 p.m. and the Council’s offices were, apparently, closed. An employee of the resort (Ms Alison Dykes) took the dogs to her home in Korora for the night, and, by leaving a telephone message, advised the Council. The following day a Council ranger, Mr Murdock, attended at Ms Dykes’ home and took possession of the dogs. He tested them for the micro-chip information he might have expected under the requirements of the Act, but the result in each case was negative. He therefore delivered them to a holding facility, at the premises of the RSPCA. I infer that this facility was a Council pound. Having done that, Mr Murdock searched the Council records. By reference to the number contained on the green tag attached to Jesse’s collar, he was able to identify the plaintiff as having been Jesse’s owner at the time the green tag was registered. He telephoned the number which appeared on the registration details and spoke to the plaintiff’s daughter, advising her of the whereabouts of the dogs. By letter dated 6 February 2003 he advised the plaintiff that Jesse had been “impounded”, of his location, and the fees and charges payable for its release. This letter constituted notice in accordance with s63 of the Act. From 14 days thereafter, by s64, the Council was permitted to sell or destroy Jesse if he remained unclaimed. The letter makes no reference to the Council’s possession of Leo, and there is no evidence that a corresponding letter was sent in respect of that dog, presumably because Leo bore no similar green tag. The inability to identify Leo’s owner meant that notice under s63 was not required, and by s64, the Council was permitted to sell or destroy Leo within 7 days of his delivery to the pound if he remained unclaimed. Of course, as soon as Mr Murdock spoke to the plaintiff’s daughter, it was apparent that the plaintiff was also the owner of Leo. That telephone call is, in my view, sufficient notice to comply with s64 in respect of Leo.

13 In subsequent days there followed some discussions between the plaintiff and Council officers concerning the return of both dogs. On 7 February Mr Murdock had a telephone conversation with the plaintiff, and the following day Mr David Brooks, the senior ranger coordinator for the Council, also had a telephone conversation with her. The Council officers advised the plaintiff that, to retrieve the dogs, she would be required to pay registration and micro-chipping fees, as well as a sum, which was accruing daily, by way of maintenance charges under s65. The plaintiff agreed that she was properly liable for the fees representing registration and micro-chipping but denied that she was liable for the maintenance charges. This, she said, was because the dogs had been unlawfully impounded. That remains her position. It is central to the determination of the plaintiff’s claim.

14 Thereafter there was extensive correspondence, particularly from the plaintiff to the Council concerning the return of the dogs, but as of the date appearing on the summons (and, indeed, the date of hearing), they remained in Council custody.

15 On 11 April 2003 the plaintiff filed an application in the Administrative Decisions Tribunal of NSW (“the ADT”) seeking review of the decision of the Council (although the application does not appear with any precision to specify “the decision” she then challenged). The application was dismissed by ADT judicial member, Ms Higgins, who held that the ADT had no jurisdiction to hear the application. This was because Ms Higgins held that the dogs had been seized under the powers conferred by the Act and that such decisions were not among those subject to ADT review. The plaintiff has continued to refuse to pay the maintenance charges, although she still acknowledges her obligation to pay the micro-chipping and registration fees.

16 On 5 March 2003, in the Local Court in Coffs Harbour, the plaintiff laid an information alleging that, in failing to return the dogs to her, Mr Murdock had contravened s62 of the Act.

17 By information laid and summons filed on 29 April 2003, Mr Gordon Polkinghorne, senior ranger of the Council, charged the plaintiff with two counts of unlawful ownership of unregistered dogs (in contravention of s90 of the Act), and two counts of ownership of dogs that did not have collars and name tags around their necks (in contravention of s12 of the Act). These charges (including that laid by the plaintiff) are yet to be determined.

18 The substantive orders that the plaintiff seeks in this court are for preservation of the dogs pending the outcome of her s62 prosecution of Mr Murdock, and immediate release of the dogs to her.

19 Although the evidence adduced in the proceedings was quite extensive, and ranged over a wide area, the issue which arises for determination is a very narrow one. The plaintiff, as I have noted, seeks orders that will preserve the dogs pending the outcome of her s62 prosecution of Mr Murdock. The substance of that prosecution is that Mr Murdock unlawfully seized the dogs; and the substance of that assertion is that, when the dogs were seized, her identity was ascertainable and, accordingly, s62 required that the dogs be delivered to her as soon as possible. The contravention of s62 that she alleges is the failure to deliver the dogs to her.

20 Counsel who appeared for the Council did not contest the proposition that the key to the determination of the first order sought by the plaintiff lies in whether she can establish that there is some reasonable prospect that she can establish some contravention of s62. If there is a serious question to be tried on that issue, then, he conceded, it would be appropriate to make an order in terms of the first order sought by the plaintiff. Further, counsel accepted that, should the plaintiff be successful in her prosecution of Mr Murdock, the seizure of the dogs would be unlawful, and the Council would not be entitled to recover the maintenance charges which it presently pursues.

21 It is necessary to return to the terms of s62. The first thing to be observed is that it is directed to the seizure, “under the authority of” the Act, of an animal. That, in turn, makes it necessary to identify what constituted the seizure of the dogs. S13(3) of the Act provides the authority for seizure. In my view, seizure under the authority of the Act occurred when the resort employees captured the dogs. That is because they were then in a public place in contravention of s13(1), and because they were not then under the effective control of a competent person by means of an adequate chain, cord or leash. Because the owner of the dogs was not present, s13(3) permitted any person, not necessarily an authorised officer, to seize the dogs. The plaintiff does not assert that that regime was unlawful. That seizure was therefore made under the authority of the Act. That circumstance had the consequence of bringing into play the provisions of s62.

22 S62(1) required the resort employees, as the persons who seized the dogs, to cause them to be delivered as soon as possible to their owner if the owner could be identified, or otherwise, at a Council pound, to any duly authorised employee or agent of the Council of the area in which the dogs were seized. (I am prepared to infer from the evidence that Mr Murdock was a duly authorised employee of the Council, but, in any event, I am satisfied on the evidence that he was an agent of the Council for the purposes of the sub-section.)

23 At the time the resort employees took custody of the dogs the owner could not be identified. The primary obligation of the resort employees, therefore, to cause them to be delivered to their owner, could not be satisfied. The secondary obligation on them was to deliver the dogs as soon as possible, at a Council pound, to a duly authorised employee or agent of the Council. At the time of seizure this, also, was not possible. The dogs were, in fact, delivered the following morning, which was as soon as possible, to Mr Murdock. The drafting of the concluding clauses of s62 is inelegant. The only way I am sensibly to read the section is as though the words “at a council pound” appeared after the word “otherwise”: in other words, the section requires delivery of a seized animal, if not to the owner, then at a Council pound to a duly authorised Council officer.

24 It is next necessary to examine Mr Murdock’s role. He attended at Ms Dykes’ private premises. Seizure under the authority of the Act did not occur when Mr Murdock took control of the dogs because they were then in the private premises of Ms Dykes. It will be recalled that seizure under the authority of the Act occurs when the dogs are in a public place in contravention of s13(1).

25 In s5(1) “public place” is defined as:

“(a) any pathway, road, bridge, jetty, wharf, road-ferry, reserve, park, beach or garden, and

(b) any other place,

that the public are entitled to use .” (emphasis added)

26 There is no suggestion that Ms Dykes’ home fell within that description.

27 Accordingly, I am satisfied that the dogs were seized under the authority of the Act at the resort, and by resort employees. What Mr Murdock was doing was to take delivery of the dogs in broad compliance with s62. (There may have been some technical breach of s62 on the part of Ms Dykes or other resort employees in that the section requires delivery to Council officers at a Council pound but, if this was such a breach, it is immaterial for present purposes.)

28 Even if the dogs had been seized under the authority of the Act by Mr Murdock, a question arises whether the plaintiff can establish that she could then have been identified as owner. It is true that, ultimately, she was identified by reference to Council records as Jesse’s owner, but, by reason of the absence of registration data in the dogs by micro-chipping, that could not be done in the short term. Mr Murdock was in the position where something had to be done with the dogs while he made the necessary searches. S62, on analysis, has some difficulties, in that it does not allow for a reasonable period of time, or any specified period of time, in which identification of the owner is to occur. In my opinion, the section must be read in a common sense fashion: as meaning that a seized dog must be delivered as soon as possible to its owner if the owner can readily be identified, or can be identified within a reasonable time. Certainly, it cannot be read as requiring a person who seizes an animal (bearing in mind that this person is not necessarily a Council officer but may be a private citizen) to retain and house the dogs while extensive or time-consuming or cumbersome inquiries are made. By way of illustration, the owner of a dog may be identifiable by advertisement in the local media; but I do not think that s62 envisages that the person seizing an animal under the authority of the Act should be obliged to retain custody of the dog while such advertisements were placed.

29 The same applies where the person who seizes the animal is a Council officer. The section requires delivery to the owner only where the owner can be identified within a reasonable time.

30 In my opinion, the evidence in this court establishes that there is no reasonable prospect that the plaintiff can make out a case against Mr Murdock for contravention of s62. This is for two independent reasons: firstly he was not the person who seized the dogs under the authority of the Act, and was therefore not bound by s62(1) to deliver them to their owner; secondly, neither at the time of seizure nor at the time Mr Murdock took custody of the dogs (nor within a reasonable time thereafter) was it possible to identify their owner. S62 required delivery of the dogs to the Council pound. Once that was done, the provisions of s63 overtook the provisions of s62. In reaching the conclusion that the plaintiff has no reasonable prospect of making a case against Mr Murdock under s63, I apply the test of whether she has established that there is a serious question to be tried. In concluding that she has not, I do not intend to

pre-empt the findings of the Local Court: the evidence there may be quite different. My conclusions are confined to the evidence adduced before me.

31 I am satisfied that the plaintiff has failed to make out a case for restraining the Council from disposing of the dogs pending the determination of the s62 prosecution against Mr Murdock. It follows that she has failed to make out a case for release of the dogs to her, even if I were otherwise satisfied that power existed to make such an order.

32 There is a disturbing element to these proceedings, and to the decision to which I have come. I do not relish the prospect of making an order that may result in the destruction of two pet animals. But a decision may be based only upon the proper application of the law, and, in my view, I have no discretion to make any order such as those sought by the plaintiff, unless she is able to establish her rights to such an order. In this case, given the way she presented her case, such a right depends solely upon her being able to show that there is a reasonable case to be tried in the Local Court on the s62 prosecution. In that endeavour she has failed. I am without power to make any order as to the future of these dogs. That now lies within the realm of the Council.

33 There is one further matter that I must add. The proceedings were heard, and judgment reserved, on 14 July 2003. Early in the morning of 16 July 2003 my associate received, by facsimile, a request by the plaintiff that judgment be provided to her by way of facsimile. Attached to that facsimile was a typewritten statement by Mr Polkinghorne, to whom reference has already been made, apparently prepared for or filed in the ADT proceedings. In the facsimile message, the plaintiff referred to evidence given by Mr Murdock to the effect that Mr Polkinghorne did not provide such a statement to the ADT. Presumably, this was intended to raise issues concerning Mr Murdock’s credibility.

34 The facsimile message bears no indication that a copy of it was sent to the Council, or the Council’s legal representatives. There was no issue in the proceedings, that, in any material respect, Mr Murdock’s evidence was contested. I bear in mind the plaintiff’s unrepresented status in these proceedings, and consider that some latitude may generally be afforded to parties who represent themselves. However, I also bear in mind that there was some evidence, adduced by the plaintiff herself, that she has had some legal training, although whether she holds legal qualifications or not I do not know. In any event, I am satisfied that it would be wrong to take into account either the contents of the statement, or the fact of its existence. I have not had regard to Mr Polkinghorne’s statement, or to any question which it does or might raise about Mr Murdock’s credibility.

35 The order I make is that the summons and the notice of motion, both filed on 16 June 2003, are dismissed; the plaintiff is to pay the Council’s costs of the proceedings.

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Last Modified: 07/23/2003