Meyers v Commissioner for Social Housing
[2018] ACTSC 193
•13 August 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Meyers v Commissioner for Social Housing |
Citation: | [2018] ACTSC 193 |
Hearing Dates: | 8, 12-15, 21-22, 25 June 2018 |
DecisionDate: | 13 August 2018 |
Before: | Mossop J |
Decision: | See [304] |
Catchwords: | TORTS – NEGLIGENCE – Negligence and nuisance – essentials of action for negligence – duty of care – public housing tenant mauled by dogs – dogs owned by visitor of another tenant – whether Commissioner for Social Housing owed a duty of care to the plaintiff – whether presence of dogs formed part of the “state of the premises under s 168 of the Civil Law (Wrongs) Act 2002 (ACT) – no breach of duty established – whether Commissioner breached common law duty of care or duty under s 168 – whether breach of duty of care caused the harm suffered by the plaintiff – no causal link between any breach of duty and the injuries suffered by the plaintiff – whether the Territory owed a duty of care to the plaintiff – no duty of care established – plaintiff’s claims dismissed |
| LANDLORD AND TENANT – TENANCY AGREEMENT - Standard residential tenancy terms under Residential Tenancies Act 1997 (ACT) – complaints by tenants about dogs owned by visitors of another tenant – steps taken by Commissioner for Social Housing in response to complaints – tenant subsequently attacked by dogs – whether Commissioner breached cl 52 of plaintiff’s tenancy agreement by permitting interference with peace, comfort or privacy of the tenant – no breach of tenancy agreement – whether breach of the tenancy agreement caused harm suffered by the plaintiff – breach did not cause harm suffered by the plaintiff | |
Legislation Cited: | Animal Nuisance Control Act 1975 (ACT) Civil Law (Wrongs) Act 2002 (ACT), ss 43, 45, 45(1)(b), 110, 112, 168 Residential Tenancies Act 1997 (ACT), ss 48, 51, 51(d), 83, 83(a), 83(b), 86 |
Cases Cited: | Adelaide City Corporation v Australasian Performing Right Association Ltd (1928) 40 CLR 481 Aussie Traveller Pty Ltd v Marklea Pty Ltd [1998] 1 Qd R 1 Warren Shire Council v Kuehne & Anor [2012] NSWCA 81 |
Texts Cited: | Commonwealth of Australia, Review of the Law of Negligence: Final Report (2002) Mark Aronson, ‘Government Liability in Negligence’ (2008) 32 Melbourne University Law Review 44 |
Parties: | Daniel Patrick Meyers (Plaintiff) The Commissioner for Social Housing (First Defendant) Australian Capital Territory (Second Defendant) |
Representation: | Counsel J Purnell SC and P Tierney (Plaintiff) V Thomas and N Oram (Defendants) |
| Solicitors Ken Cush and Associates (Plaintiff) ACT Government Solicitor (Defendants) | |
File Number: | SC 459 of 2016 |
MOSSOP J:
Introduction
On 15 March 2016 the plaintiff, a resident of public housing in Spence provided by the Commissioner for Social Housing (the Commissioner), was savagely mauled by two pitbull terriers kept by visitors of a tenant of an adjoining unit. He has sued the Commissioner for damages claiming a breach of his lease and negligence. He has also sued the Australian Capital Territory (the Territory) claiming that he was owed a duty of care by the Territory to exercise the statutory powers under the Domestic Animals Act 2000 (ACT) so as to prevent him suffering injuries from the dogs.
Liability was in issue. If liability was established, damages were agreed at $525,000.
The trial occurred over eight days between 8 and 25 June 2018.
For the reasons which follow, I have found that the Commissioner did not breach its lease with the plaintiff and that it did not owe the plaintiff a duty of care which extended to protecting him from attack by dogs owned by other people. Further, I have found that the Territory did not owe to the plaintiff a duty in relation to the manner in which the statutory powers available to authorised persons under the Domestic Animals Act were exercised. I have therefore dismissed the plaintiff’s claim and ordered that judgment be entered for the defendants.
Persons and entities involved in this case
The plaintiff
The plaintiff, Daniel Meyers, was born in 1976 and at the time of trial was almost 42 years old. He suffers from bipolar disorder as well as from Type 1 diabetes. He takes medication for both conditions. He completed Year 9 at school. He has some difficulty reading. He has some other medical conditions which create particular housing needs.
The plaintiff lived in a property owned by the Commissioner in 2008 and 2009. He felt isolated there and feared those around him who abused alcohol and drugs. As a result, he moved to Tuross Head in February 2009 to live with his father. That arrangement did not last for long and he returned to Canberra in September 2009. He then lived for a period at Samaritan House, a facility providing short term housing for homeless men and a similar residence called “Tony’s Place”. He applied for housing with the Commissioner in November 2009. He received support for his application for housing from a number of non-government organisations and from the psychiatrist employed by ACT Health who treated him.
Residents at Warrock Court
Warrock Court is the public housing complex where the plaintiff lived. It is located close to the Spence Shops and comprises four buildings spread across the site. Each of those buildings contains four units. Each of the units has an allocated carport. The downstairs units each have a small courtyard area and the upper‑level units each have access to a balcony.
The plaintiff lived in an upstairs unit in one of the buildings (unit 12).
The tenant of the other upstairs unit in this building (unit 11) was Michael Rezo. He had moved into the accommodation in April 2011. He had a very significant problem at that point with alcohol dependency. Prior to obtaining accommodation, he had on two occasions undergone a one-week program of alcohol detoxification at The Canberra Hospital. He also suffered an “anxiety depressive disorder” for which he was on medication. Significant for the purposes of this case are two people who were residing in Mr Rezo’s unit, Alan Matas and Jodie Skinner.
Roberta Manley was the lessee of unit 10, a downstairs unit, opposite unit 9 and below that of the plaintiff. She was retired.
Kim Lahiff was the lessee of unit 9, a downstairs unit, opposite unit 10 and below Mr Rezo’s unit. She suffered a variety of mental health conditions. Michael Lahiff is her father. He did not live in the complex.
The Commissioner
The Commissioner is a statutory corporation with functions set out in the Housing Assistance Act 2007 (ACT). The Commissioner does not have the power to employ staff but may delegate the Commissioner’s functions under the Act, or another Territory law, to a public servant. Housing ACT is a sub unit of the Community Services Directorate. The public servants working there are responsible for public housing in the Territory. Housing ACT does the work associated with the statutory functions of the Commissioner.
Public servants working at Housing ACT
Jayne Diehm was a public servant employed within Housing ACT. She was a Housing Manager responsible for Mr Meyers, Mr Rezo, Ms Lahiff and later for Ms Manley. She had commenced working as a Housing Manager in May 2015. In approximately October 2015, she took over responsibility for tenancies in the Melba, Spence and McKellar area which included Warrock Court. She was responsible for approximately 288 tenancies. Margaret Singh was another Housing Manager within Housing ACT with whom Ms Manley had some dealings.
Llewella Grillo was the Regional Manager for the area encompassing Warrock Court. She was senior to Ms Diehm.
Radmila Stosic was the Team Leader of Tenancy Operations. She was senior to Ms Grillo.
Christopher Adkins was the Senior Manager of Operational Services for Housing ACT.
The Australian Capital Territory
The Australian Capital Territory is the Crown in right of the Australian Capital Territory: Court Procedures Act 2004 (ACT), s 21. One of the directorates in which the public service was organised was the Territory and Municipal Services Directorate.
Public servants working at Domestic Animal Services
Domestic Animal Services (DAS) was a business unit within the Territory and Municipal Services Directorate. The staff within DAS were responsible for administering the Domestic Animals Act. Rangers within DAS were authorised persons for the purposes of the Domestic Animals Act as well as having powers under various other Acts. As at the beginning of 2016, there were eight ranger positions.
Jason Ritzen was a ranger within DAS. So too was Nicholas Morris.
Eva Cawthorne was the “Manager Ranger Services” within DAS. She was responsible for the management of the rangers.
Fleur Flanery was a public servant employed within DAS and was the public servant appointed by the Director-General as the registrar under the Domestic Animals Act.
Assessment of witnesses
Eight witnesses gave oral evidence. In making the findings of fact below, I have taken into account my assessment of the witnesses who gave evidence which is summarised as follows. The assessment takes into account my impression of the demeanour of the witnesses when they gave their evidence as well as the substance of their evidence.
I formed the view that each of the witnesses who gave evidence did so honestly. The degree to which the evidence was also reliable varied. In this case, there is a good contemporaneous documentary record of events and I have placed principal reliance upon that record in making findings of fact.
There were limited areas of factual contest. The most significant areas of contest were what was said by Mr Ritzen to Mr Lahiff and to the tenants of units 9, 10 and 12. On those issues, I found that although the relevant witnesses were giving evidence honestly, their recollections were influenced by their respective states of knowledge at the time and their knowledge of the terrible attack that ultimately occurred on the plaintiff.
I accepted the plaintiff’s evidence as honest and, to the extent to which he had a recollection, reliable. He gave evidence of the attack. He had a very limited recollection of events before and after the attack. This was explained by his sister, Rebecca Meyers, who gave evidence that the attack had affected the plaintiff’s memory and intellectual functioning. The evidence of Ms Meyers was not contentious.
I formed the view that the evidence of Ms Manley was influenced by her frustration and anger at what occurred subsequently. In a number of respects, the evidence that she gave was inconsistent with the documentary records and that led me to treat some of her evidence with caution. One example of that inconsistency was her denial of a conversation with an employee of Housing ACT, namely Ms Singh, on 9 February 2016, in circumstances where there was a record of that conversation in the documentary records. I formed the impression that although quite definite in her evidence, the definitive nature of the evidence she gave did not necessarily reflect its reliability.
I formed the view that Mr Lahiff’s evidence was generally reliable. His understanding of events was influenced by his (accurate) perception of the gravity of the incident upon him on 8 January 2016 and his perception that he was being given a bureaucratic run‑around when he sought government action in response to the incident. He did not have any awareness of the resource limitations affecting Mr Ritzen or the legal framework within which Mr Ritzen operated. He therefore more readily perceived there to be an inadequate response to his complaint than he might have if he had a greater understanding of those matters. I have assessed his evidence in light of the content of his contemporaneous documents which in some respects differed in emphasis from his oral evidence.
Only very limited evidence of David Wright, a dog behaviour expert, was admitted. I accepted that evidence, although it is of little significance in the case.
In my view, notwithstanding that his evidence was attacked in cross‑examination, I generally accepted the evidence of Mr Ritzen. On most matters, it was consistent with and corroborated by contemporaneous documentary records. While I generally accepted his evidence on matters of fact, his evidence about requesting and requiring a written statement from Mr Lahiff involved an element of defensive reconstruction. While I consider that he may have made reference to a statement in his conversations with Mr Lahiff, he did not do so in a manner that indicated to Mr Lahiff that the availability of such a statement was of critical importance in terms of taking further steps to control the dogs involved in the 8 January incident.
I found the evidence of Ms Diehm to be reliable. Once again, her evidence was generally consistent with and corroborated by the documentary record. Even though the documentary record shows that she devoted significant effort to documenting her actions, she frankly accepted that she had not made file notes of all her actions when dealing with the dogs in unit 11. Where she was unable to recall matters, she said so. Where she had limited recall of events, she frankly accepted the limitations upon her recall and explained the basis for that recollection.
I found the evidence of Mr Adkins to be reliable. His evidence about the processes involved in responding to breaches of tenancy agreements by tenants was detailed, fair and obviously given with the benefit of significant experience.
Events prior to 8 January 2016
Prior to December 2015, there is no evidence of any significant problems with Mr Rezo’s tenancy. Inspection reports indicated that the premises were well maintained. There was a complaint made about his property in March 2015, but after that complaint was investigated, it was found to be unsubstantiated.
In early December 2015, Ms Manley contacted Access Canberra (see [47] below) because she was concerned about excessive barking coming from unit 11. She was advised that she would have to fill out a 14 day diary noting barking times. She did not pursue the matter further.
In her oral evidence Ms Manley described that there were initially three pitbull terriers accommodated in unit 11, but at a subsequent point there were only two. She described them as growling and barking when on the balcony, defecating or urinating there so that the faeces or urine would fall into the courtyard below, attempting to break down the barrier between Mr Rezo’s balcony and the plaintiff’s, and occasions when they would be let out to run through the complex. She described an occasion where the male dog, Diesel, was tied up at the bottom of the stairs on a long lead.
She gave evidence that she had complained about the dogs to her Housing Manager, Ms Singh, prior to making a written complaint in December 2015. She said that Ms Singh had told her to “Lock yourself in your home”. There was no record of such an interaction in the Housing ACT “Homenet” database which recorded interactions with her in relation to her tenancy. There was no reference to such an interaction in the written complaint that Ms Manley subsequently made on 13 December 2015. There was, however, a record in the Homenet database of an interaction between Ms Manley and Ms Singh on 9 February 2016. Notwithstanding that Ms Manley denied that the 9 February 2016 conversation occurred, I am satisfied that it did. On the issue as to her conversation with Ms Singh prior to her written complaint in December 2015, I do not consider that Ms Manley’s evidence is reliable. While she may have mentioned the dogs to Ms Singh prior to her complaint in December 2015, I cannot be satisfied on the balance of probabilities that she did so other than in passing and am not satisfied that the only response that Ms Singh gave was to advise her to lock herself in her unit.
Late in the evening of 13 December 2015, Ms Manley made a written complaint to Housing ACT. This was sent by email to the “Housing Customer Service” address. The body of the complaint provided:
I am lodging a formal complaint against the tenant in 11/25 O’Neill st Spence.
This tennant [sic], Michael I think, has recently had someone move into his flat with him. This person has bought [sic] with thom [sic] 2 pitbull dogs. These dogs bark incesantly [sic]. Every time I go into my yard they are on his balcony barking. Whenever the postman comes, or someone walks by they bark.
It is 9pm tonight and I was talking to my upstairs neighbour and the 2 dogs started again. We had to go inside because we couldn’t hear what we were saying. He never tells them to stop, infact [sic] he encourages this behaviour.
Since I moved in at the end of July I have had to call the police 3 times on this person. And I have had enough, all I want is a quiet life and if it wasn’t for him it would be.
The receipt of her complaint was acknowledged by an email sent on 14 December 2015.
Having regard to the terms of the complaint, it is clear that the principal concern, at that point, was the noise generated by the dogs. There is no reference to any concerns relating to them roaming the complex, being tied up in a public area or presenting any threat to persons or animals.
On 22 December 2015, Ms Diehm and a trainee Housing Manager attended the property in response to the complaint about the dog nuisance. At that point, Ms Diehm had some awareness of the personal circumstances of Mr Rezo, having reviewed his file. When she was at the property, the barking from the dogs was “very loud and incessant”. Mr Rezo told her that he was minding the dogs and they would be gone in four or five days. Ms Diehm told him that the dogs were not suited to the property, that they must be removed and that it was contrary to the tenancy agreement to keep dogs at the property. The tenant said that he understood. (I do not accept Ms Manley’s evidence that two male employees visited the complex in response to her complaint because that evidence is inconsistent with the documentary evidence and the evidence of Ms Diehm.)
The same day, Ms Diehm wrote a letter to Mr Rezo following up upon the conversation. The letter identified that sub-cls 70(b) and (c) were the relevant provisions of the residential tenancy agreement. Those clauses provided that a tenant must not cause or permit a nuisance or interference with the quiet enjoyment of the occupiers of nearby premises. The letter included:
Thank you for discussing this issue with me during my visit. I appreciate your cooperation and reinforce our agreement that the dogs will be removed from the property no later than 27 December 2015. As discussed the noise the dogs are making is in breach of your tenancy agreement.
The letter concluded:
Please ensure… that you comply with the Tenancy Agreement. Should Housing ACT receive any further complaints which can be substantiated, your tenancy may be referred through to the ACT Civil and Administrative Tribunal.
Ms Diehm planned to make a visit to the property on 5 January 2016. She did not propose to advise the tenant of the date of the visit. The reason that the visit was proposed for 5 January 2016 and not earlier was because of the public service shutdown period after Christmas.
Ms Diehm also sent a letter to the complainant, Ms Manley, on 23 December 2015. The body of the letter was as follows:
I am writing in regards to the complaint you lodged on 14th December 2015 relating to the noise disturbances and animal welfare currently occurring at 11 Warrock Court, 25 O’Neill St, Spence ATCT [sic] 2615.
Housing ACT has an obligation to work in accordance with the Residential Tenancies Act. Housing ACT has limitations in taking actions outside the Residential Tenancies Act, however we have a commitment to working closely with tenants to ensure they adhere to the terms of their Tenancy Agreement and that they are appropriately supported in the community.
Whilst I am limited in what information I can provide you, I can advise that Housing ACT has been working with the tenants to resolve the issues you have raised in your complaint. As you can appreciate, resolution to complaints can take time to resolve and we appreciate your patience in allowing Housing ACT the time to undertake our investigation. At this point we are expecting the dogs to have left the property by 27th December 2015. We will be following up on this to ensure this is the case, but please if you can provide further information to us surrounding this matter I encourage you to do so.
I encourage you to contact the EPA if you believe a breach of noise is occurring as they have the authority to take noise readings and determine if a breach has occurred. Also in regards to the animal welfare please contact Domestic Animal Services and the RSPCA. I also advise you to contact the Australian Federal Police if you are threatened on 131444 or in the case of an emergency please call 000.
If you are dissatisfied with this outcome you may ask for a review by a Senior Manager of Housing ACT. Your request must be made in writing within 28 days of the date of this letter …
Following this, an internal working document was prepared showing how Ms Manley’s complaint had been dealt with. The document was completed by Ms Grillo. It indicated that the property visit had been conducted, that the subject of the complaint had been spoken to, that a file note had been prepared, that the dogs would be removed by 27 December 2015 and a reminder letter had been sent. The document recorded that the investigation was not conclusive but was sufficient to suggest that the complaint was justified. It was signed by Ms Grillo on 24 December 2015 and by another officer from the Complaints and Information Unit indicating that the complaint had been closed on that date. The complaint was dealt with earlier than the target date for dealing with the complaint which was 8 January 2016.
The dogs did in fact leave the premises over the Christmas period. When they returned to the premises was the subject of some differences in the evidence. Ms Manley thought the dogs had returned just before or at about the New Year. On the other hand, Ms Diehm gave evidence that she did not visit the premises on 5 January 2016 because she spoke to a neighbour to see whether the dogs were still there and was told that they were not there. She remembered feeling relieved at that information. It is not necessary to resolve this issue because it is clear that Ms Diehm was told on 7 January 2016 by one of the neighbours that the dogs were still at the property. As a consequence, she planned a property visit for the next day, 8 January 2016. She attempted to call Mr Rezo four times but without success.
The attack on Mr Lahiff
On the 8 January 2016, before Ms Diehm could conduct her planned visit, Mr Lahiff, Ms Lahiff’s father, was visiting his daughter who lived in unit 9, one of the ground floor units. He approached the pathway to her front door. He observed two people on the landing outside the units above. At about the time that he knocked on his daughter’s front door, two dogs came charging down the stairs, barking loudly and ran towards him barking in a ferocious manner. As they approached him, he prepared for their attack. They came at him one at a time. He kicked the first dog in the head and it retreated a little to near the bottom of the stairs. The next one then came at him and he also kicked it in the head. By this time, his daughter had opened the door and he was able to escape into her unit. Had he not responded so forcefully and then escaped, he would have been mauled by the dogs. As he entered her unit, he saw the dogs being grabbed by their owners at the bottom of the stairs. He was, understandably, badly shaken, upset and angry about what had occurred.
He then attempted to have the danger posed by these dogs addressed by various government authorities. First, he rang the Australian Federal Police (AFP). He was told to ring Canberra Connect. Canberra Connect is a call centre operating as a single point of contact for ACT government services. (It was also referred to in the evidence as Access Canberra. Any distinction between the services is not significant for the purposes of this case.) He explained the situation to the telephone operator at Canberra Connect and gave the details of the incident. The operator attempted to contact DAS and at 9:53am sent an electronic “Smart Form” to DAS, requesting assistance. He then hung up and waited to be contacted by DAS. After about an hour, he was concerned that nothing happened and so he rang Canberra Connect again, stated the serious nature of the incident and asked for a direct number for DAS. He then rang DAS and explained to Mr Ritzen, a ranger with DAS, the circumstances of the attack and that it was very serious.
Although there were eight ranger positions within DAS, they worked on a roster. According to that roster, six of those ranger positions were rostered on that day, but two of those positions were vacant during that period. Of the four remaining rangers rostered on that day, one was sick and two were on leave. That meant that the only ranger that was available to perform the duties of rangers within DAS was Mr Ritzen. Those duties included serving on the counter at the DAS pound, answering phone calls and email enquiries, manning the till, selling dogs, collecting stray animals from vets or people’s houses as well as investigating allegations of dogs harassing or attacking people or animals.
Mr Ritzen recorded the complaint that was made to him on a form headed “Domestic Animal Services Complaint Details” as follows:
2 DOGS HAVE HARASSED MICHAEL IN THE STAIRWELL OF HIS DAUGHTER’S FLAT. THE COMP SAID HE WENT TO HIS DAUGHTER’S LAP [sic] THIS MORNING AT 09:40 AND WAS ATTACKED BY TWO DOGS WHICH HAD COME OUT OF FLAT 11, 25 O’NEILL STREET SPENCE ACT. AFTER FIGHTING THEM OFF I RANG TH [sic]
Consistently with it being a working document completed at the time, the description of what occurred stopped mid sentence and was not completed. Mr Ritzen also filled in a box on the form which under the heading “Action” described “Action Required” and “Action Taken”. So far as “Action Required” was concerned, the document said:
SPEAK WITH OWNERS ABOUT CONTAINING THEIR DOGS. NO DOGS REGISTERED AT PROPERTY.
Mr Lahiff’s evidence was that during the telephone conversation with Mr Ritzen, he was told that DAS could not act because he had not been bitten by the dog and that therefore DAS had no power to intervene. He said he was told it was a matter for Housing ACT. He was told to report the problem to Housing ACT. As there are other documentary records which reflect upon the content of this conversation, it is a matter which I will return to at [70] below.
Mr Lahiff then rang Housing ACT. He spoke to somebody who was identified as the relevant Housing Manager for that block of units. It was, in fact, Ms Diehm. He explained to her that the attack was vicious, that he was fearful and that action needed to be taken. He was told that nobody from Housing ACT could come out until the “Dog Control people” had been. Mr Lahiff expressed his amazement at the situation, although he could not recall the exact words he used.
At 10:32am Ms Diehm had also contacted Access Canberra so as to request assistance with removing the dogs so that Housing ACT could attend the premises. Another Smart Form was generated and sent to DAS. It recorded:
The dogs have broken out of the property & chased a visitor. Caller is from Housing ACT & needs dogs removed before she can attend. Housing ACT have already asked for these dogs to be removed.
Following his telephone call to Ms Diehm, Mr Lahiff then rang the AFP again. He told the police that he was fearful of a further attack. He was told by the police that they could not come and that it was a matter that should be addressed by Housing ACT.
At some point after having spoken to Mr Lahiff, Mr Ritzen spoke to Ms Diehm by telephone. The inference available from the documentary records (in particular, the email from Ms Cawthorne of 3:57/3:58pm referred to below at [60]) is that Mr Ritzen told her that he would be issuing a Warning Notice and that Housing ACT should take steps available to them under the lease to have the dogs removed. He did so without any particular understanding of the content of the lease or the steps required to be taken under the Residential Tenancies Act 1997 (ACT). They agreed that Ms Diehm would attend the DAS facility in Symonston and collect the Warning Notice that he would prepare and that she would deliver it to the premises.
The ministerial email
As a consequence of being given what he considered to be the bureaucratic run-around, Mr Lahiff wrote directly to Simon Corbell who was at the time the Deputy Chief Minister, ACT Attorney-General, Minister for Health, Minister for the Environment, and Minister for Capital Metro. That email was in the following terms:
Dear Minister
I’m writing to ask if you could intervene in a dangerous situation regarding savage dogs.
I went to my daughter’s flat this morning at 09:40 and was attacked by two dogs which had come out of flat 11, 25 O’Neill Str Spence ACT.
After fighting them off I rang the police who said they would not deal with dogs and to get in touch with Canberra Connect.
I contacted Canberra Connect at 09:46 and made a report which they passed on to Dog Control. At 11:00 Canberra Connect advised they had been unable to connect with Dog Control.
At 11:11 I contacted Dog Control direct who advised that they would look into the matter.
Later I spoke to ACT Housing who advised they had been in touch with Dog Control also and that Dog Control could not respond. ACT Housing also were unable to visit the flat in question until Dog Control had attended.
I reported the situation to the AFP again at 12:05 and explained to them the dangerous situation. They said they had no powers to enter premises to apprehend dangerous dogs.
The situation as I write is that at least 2 people are unable to come out of their flats (numbers 9 and 10) due to fearing attack from the dogs.
Could you please intervene in this situation and request police attendance.
It should be noted that insofar as the email records the conversation with “Dog Control”, it records a positive response (“they would look into the matter”) even though it was not an immediate response. It is only at the subsequent point of speaking to ACT Housing that he records being advised that “Dog Control” could not respond.
This email did prompt some response. Within 22 minutes, an adviser to Mr Corbell had spoken to a Gerard Hodshon (whose position is not disclosed by the evidence) about the issue and sent a copy of Mr Lahiff’s complaint to him (at 3:07pm). Mr Hodshon, in turn, sent a further email (at 3:10pm) to a Samantha Turner (whose position is not disclosed by the evidence) saying that he needed to get back to the Minister’s office detailing the response as soon as possible. Twelve minutes after that (at 3:22pm) Ms Turner sent the email chain to Ms Cawthorne, whose position is described as “Manager Ranger Services”.
Ms Cawthorne then had a conversation with Mr Ritzen about the complaint and obtained information from him.
Just over an hour after the email was sent to the Minister, Ms Cawthorne responded to Ms Turner by email (at 3:57/3:58pm) which included the following:
A smart form was also received from Housing at 10:32 requesting assistance from DAS to remove the dogs from the premises so the officer could attend the premises. The ranger advised the Housing officer that DAS are not authorised to remove dogs from private premises (includes stairwell and curtilage) and that he would issue a formal warning to the owner of the dog under section 49A of the Domestic Animals Act 2000 (harass). He has done so. He gave a warning to an officer from ACT Housing who was going to deliver it along with notices from that agency.
The ranger advised the officer from ACT Housing to obtain a warrant for the removal of the dogs (which are allegedly in breach of tenancy agreement).
The complainant has been advised that he can attend DAS and make a formal witness statement regarding the incident.
Two points should be noted about the terms of this email. First, Mr Ritzen denied saying words to the effect of the bracketed expression “(includes stairwell and curtilage)” and said that the expression would not correspond with his understanding of the Domestic Animals Act at the time. Neither party could explain how the expression would make legal sense having regard to the terms of the Act. I am not satisfied that he said words to the effect of the bracketed expression. Therefore, it must have been added by the author of the email. It is possible that it was written in contemplation of a situation not uncommon in unit title developments (but not relevant to Warrock Court) where there is an enclosed common stairwell to which only residents have access.
The second point is that the last quoted sentence of the email is a contemporaneous record of Mr Lahiff being told that he could attend DAS and make a formal witness statement.
This response then appears to have worked its way back up the chain. It appears to have been sent by Ms Cawthorne to Ms Flanery (registrar under the Domestic Animals Act). At 4:03pm Ms Flanery responded to Ms Cawthorne (carbon copied to three other people, namely, Ms Turner, Phillip Perram, Executive Director Parks and Territory Services, and Mr Ritzen) saying:
Thanks. Please do not provide this information to the media. There is already a matter before the court regarding a serious dog attack in a community housing facility.
We need to follow up with Housing and legal
The reference to the matter which was already before the Court appears to be a reference to the case which resulted in the decision of Penfold J in Hartigan v Commissioner for Social Housing [2017] ACTSC 100; 319 FLR 158.
So far as the email records an intention to follow up with both ACT Housing and “legal”, the evidence did not disclose who or what was “legal”.
Following the sending of her first response, Ms Cawthorne discussed the matter further with Mr Ritzen. It was agreed between them that Mr Ritzen would attend the premises in the company of police after he had closed the DAS pound. (This reflected a more definite plan to attend the property than had existed at the time of the discussion with Ms Diehm and may have been the result of the prompting by the ministerial email.) At 4:08pm Ms Cawthorne emailed Ms Flanery saying that a ranger (Mr Ritzen) would attend the property that afternoon with an officer from ACT Housing and the AFP if necessary.
The 3:57/3:58pm email from Ms Cawthorne was also sent by Ms Turner to a Jane Carder, described as a “Manager” in “Place Management, City Services, Parks and Territory Services” (at 3:59pm). It is not clear precisely what Ms Carder’s responsibilities were or the relationship between her position and that of Ms Cawthorne. In her email of 4:13pm to Ms Cawthorne, Ms Carder said:
Hi Eva
Thank you for arranging for a DAS Officer to attend the site to determine if there is a further threat, as residents are scared to leave their flats for fear of attack. If there are any further threats, the DAS Officer can call the police to attend and take appropriate action.
It would be good to know if ACT Housing has issued their notice before the weekend.
By 4:23pm the information had made its way back up to Minister Corbell’s adviser, Kathryn Conroy, who emailed Mr Lahiff saying:
I understand action has been taken and a representative from Territory and Municipal Services has or will be in touch soon.
This response appears to assume that the attendance of the DAS ranger at the site would involve contact with Mr Lahiff. That was not necessarily the case and in fact there was no contact with Mr Lahiff that afternoon or evening.
The content of the conversation between Mr Lahiff and Mr Ritzen on 8 January 2016
The substance of the report that was made by Mr Lahiff to Mr Ritzen is set out at [51] above. The controversial aspects of the conversation are whether he said that he would not attend and what he said about the scope of his powers in the circumstances.
Mr Ritzen gave evidence that his practice was to ask certain questions of a complainant. They included when and where the attack occurred, how many dogs had been involved and whether or not the complainant had been bitten or otherwise injured. I am satisfied that he asked those questions on this occasion. Mr Ritzen gave evidence that, as a result of the answers given to him, he categorised the incident as one involving harassment rather than an attack. He told Mr Lahiff that he could not respond at that time. That is consistent with what is recorded in Mr Lahiff’s email to the Minister (“they would look into the matter” referred to at [57] above). I am not satisfied that Mr Lahiff was told that because he “hadn’t been bitten they didn’t have powers to remove the dogs”. I am satisfied that having asked Mr Lahiff questions about the circumstances of the incident, Mr Ritzen told him that he could not attend the premises at that time but would look into the matter. It may be that there was some discussion of the potential to seize the dogs or the likely course that might be taken in relation to the dogs having regard to the “Action Required” entry referred to at [50] above, but that was not sufficient at that point to convince Mr Lahiff that DAS would not take any action. I am also satisfied, having regard to Mr Ritzen’s evidence and the contemporaneous record in the email set out at [60] that he did tell Mr Lahiff that he could, if he wished, make a statement about the attack. However, that was not done in a manner which conveyed to Mr Lahiff the significance that Mr Ritzen placed upon the making of the statement in terms of empowering him to take more drastic action in relation to the dogs than he then contemplated, namely, a visit and a warning. I accept that had the potential significance of a written statement been explained to him then Mr Lahiff, as he said in his evidence, “would have been there like a flash” to make such a statement.
It was only after speaking to Ms Diehm that Mr Lahiff came to the view that nothing was going to be done and it was this that provoked his email to the Minister.
It is quite understandable that Mr Lahiff was provoked into action by the lack of an immediate response. Mr Lahiff was, quite reasonably, very upset at being subject to the attack by the two dogs. He had an expectation that decisive action would be taken immediately in relation to the dogs, particularly given his knowledge of his daughter’s vulnerable situation. He was not aware of the resource constraints facing Mr Ritzen or the existence of a usual course in relation to first time incidents of “harassment”. His expectation of immediate decisive action was therefore disappointed and he, understandably, formed the view that the responses from the agencies that he contacted were completely inadequate.
Actions of Mr Ritzen and Ms Diehm following the 8 January 2016 incident
After having spoken to Ms Diehm, Mr Ritzen prepared a Warning Notice. This was prepared on a standard form which indicated that the recipient was required to take immediate action to ensure ongoing compliance with the Domestic Animals Act and that “infringements may be issued if you have received a previous warning”. The form was filled out by hand. The handwritten additions give the appearance of being somewhat haphazard involving circling, underlining, crossing out and interlineation. However, the notice was intended to indicate that the complaint involved allegations that dogs may be unregistered and that the dog had breached the Act: “s 49A Dog harass person/animal when not with keeper/carer at 25 O’Neill Street Spence.” This Warning Notice indicates that at the time, as a result of his discussions with Mr Lahiff, Mr Ritzen considered that the appropriate characterisation of the incident was one involving harassment rather than an attack. Had Mr Ritzen characterised the incident as an attack then the usual course identified in DAS internal working documents would have been to seize the dog until investigation of the incident was complete.
As arranged in her conversation with Mr Ritzen earlier that day, Ms Diehm attended the DAS premises in Symonston and collected the Warning Notice from Mr Ritzen. She attended the premises that afternoon and delivered the notice to Mr Rezo’s letterbox.
Ms Diehm also prepared a file note summarising the actions in relation to the complaint received on 14 December 2015 and the events that occurred on 8 January 2016. This records her actions prior to Christmas, as well as her actions in response to the report by Mr Lahiff. It indicates that in addition to reporting the matter via Canberra Connect, she had called the Mr Rezo two times and then phoned his emergency contact to gain a new phone number for Mr Rezo. She then called that new contact number four times leaving two messages. In relation to the future, the file note records:
HM [Housing Manager] will continue to monitor the situation. HM will attend the property once the dogs are no longer a threat.
HM will call neighbours to check on their safety.
HM will complete NTR [Notice to Remedy]
Ms Manley also contacted DAS following the attack on Michael Lahiff.
As agreed with his manager, Ms Cawthorne, Mr Ritzen did in fact attend the premises in the company of police at about 6:10pm on 8 January 2016. He attended with a catching pole and walked loudly up the stairs and banged on the screen door so as to provoke a response from any dogs that were present. His actions were recorded in the “Action Taken” portion of the DAS complaint form referred to at [50] above as follows:
AS THERE WAS NO STAFF EXCEPT MYSELF I ATTENDED THE PROPERTY AFTER I CLOSED THE POUND AND ATTENDED THE SPENCE PROPERTY WITH THE ASSISTANCE OF THE AFP. I KNOCKED ON THE DOOR SHORTLY AFTER 6PM WITH NO RESPONSE AND DID NOT HEAR ANY SIGNS OF ANY DOGS WITHIN THE PROPERTY AND THEY WEREN’T ON THE BALCONY OF THE PROPERTY. LEFT NOTICE TO CALL THE POUND ASAP REGARDING THEIR DOGS. JASON
Consistent with the contemporaneous note, I find that Mr Ritzen did leave a calling card or a “tick and flick box” card. The document was different to the Warning Notice that he had given to Ms Diehm and, as his note indicates, requested the owner to make contact with DAS.
Events on subsequent days
On Saturday 9 January 2016, Ms Manley took a photo of the male dog known as Diesel at the bottom of the stairs outside the units. The dog can be seen to be tied up with some form of rope or cord. The picture shows it looking down the alleyway towards Ms Manley and effectively blocking the way out of her unit.
At 10:38am on Saturday, 9 January 2016, Ms Cawthorne reported to Ms Flanery and others that Mr Ritzen had attended the property and attempted to make contact with the resident or owner of the dogs. There was no response and the ranger left a calling card.
At 11:20am and 11:45am on Saturday, 9 January 2016, Ms Flanery and Mr Perram respectively acknowledged receipt of the email from Ms Cawthorne sent at 10:38am.
At 10:36am on Sunday, 10 January 2016, Mr Lahiff responded to Ms Conroy’s email of 4:23pm on 8 January 2016, saying that he had not heard from Territory and Municipal Services yet.
On Monday, 11 January 2016, Ms Conroy raised the lack of contact with Mr Lahiff with Mr Hodshon, who in turn raised it with Ms Cawthorne, who in turn raised it with Mr Ritzen. This then seemed to prompt further action on Mr Ritzen’s part. His actions are recorded in his email of 11:02am of that day to Ms Cawthorne as follows:
At 10:54 on the 11/01/2016 I spoke with Michael [Lahiff] regarding the dog mentioned and informed him that I’ve left a noticed [sic] at the property with the assistance of the AFP on Friday around 6 pm on Friday.
Michael will make some inquires [sic] to see if the dogs have been returned to the property and inform me of his information. I gave Michael my direct phone number …
Mr Lahiff denied that there was any discussion of him making further enquiries to see if the dogs returned to the property. However, having regard to the contemporaneous record in the form of this email and the subsequent provision of information by Ms Lahiff referred to at [89] below, I find that this issue was discussed and that Mr Ritzen gave Mr Lahiff his phone number for that purpose.
The information provided by Mr Ritzen about having spoken to Mr Lahiff was then passed by Ms Cawthorne at 12:56pm on Monday, 11 January 2016, back up to Mr Hodshon and, I infer, to the ministerial adviser Ms Conroy. The email from Ms Cawthorne to Mr Hodshon included that: “Michael [Lahiff] will make some inquires [sic] to see if the dogs have been returned to the property and inform Jason [Ritzen] of his information.”
The Notice to Remedy
On 11 January 2016, Ms Diehm at Housing ACT prepared and signed a Notice to Remedy which alleged a breach of cl 70 of the prescribed terms of Mr Rezo’s residential tenancy agreement. As noted above (at [40]), that clause provided that the tenant shall not cause or permit nuisance or interfere, or permit interference, with the quiet enjoyment of occupiers of nearby premises. The notice gave him 14 days to remedy the breach by removing the dogs from his property. Included with the notice was a copy of the Warning Notice prepared by Mr Ritzen which Ms Diehm had previously delivered to his mailbox on 8 January 2016. The notices were served by Ms Diehm on Mr Rezo by leaving them in his letter box on 11 January 2016 at 2pm in the afternoon. Although Ms Diehm could not specifically recall whether prior to leaving these notices in the letterbox she had visited the unit and knocked on the front door, it is likely, having regard to the nature of the documents and her previous contact with Mr Rezo, that she did. Because the service of a Notice to Remedy was a formal step required by the provisions of the Residential Tenancies Act, Ms Diehm prepared a statement of service that could be subsequently used in Australian Capital Territory Civil and Administrative Tribunal (ACAT) proceedings.
On 13 January 2016, Mr Ritzen attended the property again. A note added to his earlier database entry said:
ATTENDED ADDRESS 13/1/15 [sic] NO ONE HOME SPOKE TO COMP, KIM AND 2 NEIGHBOURS HAVE DETAILS NOTE BOOK [sic] PAGE 20 ON FILE DOG ATTACK FILE WARNING NUMBER NOTICE 3809
On 13 January 2016, Ms Lahiff contacted Access Canberra at 7:32am indicating that the dogs were now at the property. A ranger called Ms Lahiff and told her rangers would attend that day. She said that the dogs had not attacked or harassed any person at the time of the call in the morning.
Mr Lahiff spoke to his daughter following her conversation with the ranger. As a result of the conversation with his daughter, he wrote a further email to Ms Conroy in Minister Corbell’s office. He said:
This morning My daughter informed me that the dogs had returned to flat 11, 25 O’Neill St Spence. My daughter contacted Dog Control (via Canberra Connect). She was told by the ranger that he was unable to respond and that because I hadn’t been bitten by the dogs it was really a Housing matter. Could you please determine whose responsibility it is to remove the dogs which seem to be placed in the flat only during non-business hours.
I wish to restate the vicious nature of the dog attack against me last Friday. If my daughter had been unable to let me into her flat quickly or if I had been visiting my daughter with my grandchildren (age 3 and 6) the result of the attack could have been horrific.
I believe my daughter and the other residents at these flats are owed a duty of care by the Territory Authorities.
I sincerely hope that the duty of care will not be one that will have to be determined by the courts if these two dogs attack again.
Having regard to the fact that Ms Lahiff was told that rangers would attend the premises, the statement in the email that “She was told by the ranger that he was unable to respond and that because I hadn’t been bitten by the dogs it was really a Housing matter” was not an accurate statement of what Ms Lahiff had been told in the telephone call. The statement is likely to reflect the frustration of Mr Lahiff and his daughter that no ranger had said that as a result of his complaint the dogs would be seized.
Mr Lahiff’s email was sent by Minister Corbell’s office to Minister Rattenbury’s office on 13 January 2016 and Mr Lahiff was told that this had occurred. Logan McLennan, who appears to be on the staff of Minister Rattenbury, sent the letter to Helen Wilson, who appears to have been somebody in the office of the Director-General of Territory and Municipal Services Directorate, who in turn sent the document to the registrar (Ms Flanery), and Ms Cawthorne. Ms Cawthorne then reported by email to Ms Wilson that Ms Lahiff had been spoken to by a ranger that morning and told that rangers would attend the premises that day. The ranger had also confirmed that the dogs had not attacked or harassed any person at the time of the call that morning. Ms Cawthorne said that two rangers were attending the address and that she would let Ms Wilson know the outcome of the visit.
At 3pm that afternoon, Mr Ritzen attended the address. He did so in the company of the only other ranger on duty that day, Mr Morris. Mr Morris recorded in his notebook that he spoke to Ms Lahiff, Ms Manley and the plaintiff. Mr Morris was told “all 3 tenants have lodged complaints with housing and Police and the tenant from 12/25 has been threatened with a knife reported to police”. Mr Morris recorded contact details for the three tenants and for the Housing Manager, Ms Diehm.
Mr Morris recorded what occurred during the visit in an email to Ms Cawthorne on 18 January 2016:
On the 13/1/16 at 15:00pm ranger Ritzen and myself attended 11/25 O’Neill St Spence.
We were attending the address as there had been a harass on person occur in the stair well on the 8/1/15. The 2 dogs that were in the stair well are owned by 2 people that are squatting at the address and are not on the tenancy agreement.
We knocked on the door and no one answered.
We spoke to 3 neighbours, Ms Manley from 10/15 Daniel from 12/25 and Kim from 9/25 the 3 neighbours told Jason and myself that the [D]epartment of [H]ousing [knew] about the 2 people and their dogs squatting at the address and had given these people and the dogs a notice to vacate by the 27th December 2015.
We explained to the 3 neighbours that normally with dogs harassing we would talk to the owner and give warning and explain legislation that they must have effective control of dogs whilst in public (dogs on lead)
The 3 neighbours did say even if they were home they would not answer the door as they were aware that they squatting there.
Ms Manley provided Jason and myself with a letter from housing we left calling card in letterbox and left. This is the second time that we have been to the address without being able to talk to the owner of the 2 dogs.
Ms Manley’s evidence as to what occurred on that occasion was as follows:
Okay, did they say anything to you about the dogs?---Yes, they said they couldn’t do anything about the dogs, because they’d not hurt anybody.
And did you respond to that?---Yes, I did. I said, “Are you fucking serious?”
What if anything did they say?---They said yes, they are. They said that’s the law.
So far as what occurred on that day, insofar as there is a conflict between the evidence, I prefer the evidence in the email prepared shortly after the meeting to the oral evidence given by Ms Manley. The course of conduct described in the email (“We explained to the 3 neighbours…”) is consistent with the course of conduct proposed by Mr Ritzen at the time of the initial complaint and consistent with the practice of DAS. It is unlikely that the rangers would have expressed a position inconsistent with both the Domestic Animals Act and Mr Ritzen’s understanding of the Domestic Animals Act that there was no power to take any further action because the dogs had not hurt anybody. Rather, it is likely that the officers explained the distinction that existed between an attack and harassment and the usual course that DAS would follow in relation to a first instance of harassment. It does appear that Mr Ritzen had in his earlier conversation with Ms Lahiff placed some emphasis on it being “a Housing matter”. That is consistent with not all of the complaints about the dogs being directed at the actual attack on Mr Lahiff but extending to the presence of the dogs in the unit complex and their barking.
Given the lack of familiarity of Ms Manley (and the other tenants) with the subtleties of the Domestic Animals Act and their frustration in relation to the ongoing presence of the dogs, it is likely that the nuances of the explanation given to Ms Manley have not been accurately recalled. It may be that Ms Manley used the words that she said she did but I do not accept her evidence that the position adopted by the officers was that the law prevented them from taking any further action. Rather, it is more likely that they explained the situation in the manner recorded in the substantially contemporaneous email.
After delivering the Notice to Remedy on 11 January 2016, Ms Diehm did not receive any complaints in relation to the dogs for some time. She continued to attempt to get in contact with Mr Rezo by regularly calling him on the telephone. He did not answer her calls or otherwise respond.
On 21 January 2016, Ms Diehm recorded in a file note two pieces of information obtained in relation to the use of premises at 25 O’Neill Street. The first was information received on 19 January 2016 that the owner of the dogs (Mr Matas) had been evicted from his mother’s property in Florey being an undeclared occupant “after a police raid found firearms, drugs, and weapons on the property”. The other information was obtained from Ms Lahiff on 21 January 2016 that the dogs and the visitors were still residing at the premises and that a video surveillance camera in the premises was aimed at the stairwell into the block.
The file note was provided by Ms Diehm to Ms Grillo. Although Ms Diehm had contemplated visiting the unit with Ms Grillo on 21 January 2016, it appears that the decision was made by Ms Grillo to contact police and ask for their assistance with any such visit because of concerns for the safety of Housing ACT staff.
On 9 February 2016, Ms Manley phoned her Housing Manager, Ms Singh, about the two pitbull dogs that were staying in the neighbouring property. Ms Singh recorded that the tenant was “very distressed regarding two pitbull dogs that stay in a neighbouring property” and that the tenant had called DAS and previously lodged a complaint. She encouraged Ms Manley to “engage with DAS”.
On 15 February 2016, Ms Manley left a telephone message for Ms Diehm. Ms Lahiff also called, asking if she had received an email from Ms Manley. Ms Diehm indicated that she had but it had no content and asked Ms Lahiff to resend it which she did on 16 February 2016 at 2:55pm. The email contained a complaint about the occupants of unit 11. It appears that the email had been sent earlier to Ms Manley in draft form and then sent in an amended draft form to Ms Diehm. That complaint raised a number of matters about the young couple who were living with Mr Rezo in unit 11 (that is, Mr Matas and Ms Skinner). Ms Lahiff identified the young couple as Alan and a young lady whose name she did not know. The email included:
They own two pitbull-cross dogs named Noah [sic] and Diesel. Number 11 is a one-bedroom unit with a very small veranda to the back of the property. While they have been living here the dogs bark often when someone makes a noise like opening their front or back door or someone is in their yard. The owners (young couple) let their dogs out of the property to roam the complex without a lead. The man and lady usually yell at the dogs to come back to them while they are outside.
The young couple frequently argue between themselves and the girl often opens their door and slammed it shut and walks or runs to the carport. I have heard the young man Alan say to her “You will do what I say”. I have been informed that the police have been out to them at least twice for domestic abuse calls since moving into no 11.
The email then proceeded to describe a series of events:
a)an apparent theft of a parcel that was being delivered to Ms Lahiff;
b)the dumping of glass in her yard near her gate;
c)dogs urinating from the balcony above;
d)the attack on Mr Lahiff in relation to which the email said “This has been reported to you. Also on this day my courtyard concrete was covered in dog urine again.”
e)Mr Matas entering her back yard, climbing onto the fence and then up onto the balcony of number 11 then smashing a window to get in.
f)The carport being full of furniture and rubbish;
g)The installation of a camera pointing at the stairs from the bedroom to number 11.
The request was “Please deal with these people and their dogs ASAP”. What is notable about this email of complaint is that it covers a wide range of matters and does not emphasise the threat posed by the dogs. Rather it focuses upon both the dogs and the undesirable conduct of their owners.
At 1:02pm on 16 February 2016, Ms Diehm sent an email to Mr Ritzen which included:
I came into your office on 8/1/2016 in regards to the dogs at the above address.
We will need you to meet us at the property but we will need to arrange it at a time that is suitable for you and also tee it up with ACT policing. So let me know when suits you.
Secondly what are your powers in regards to the dogs? Are you able to take them or anything?
I will wait to hear from you.
Thanks Jason.
Following her email, Ms Diehm did have a conversation with Mr Ritzen. She had a discussion about the powers available to him. There was a discussion about the possibility of obtaining a warrant to get access to the property but Mr Ritzen was negative about the prospects of that being possible. He told her that he could assist her to conduct a property inspection by attending and assisting to secure the dogs but that they would not be seized and removed. While Ms Diehm had little recollection of the conversation, she did recall that at the end of it she felt frustrated.
The same day the plaintiff, Mr Meyers, called Ms Diehm requesting “instant eviction” of Mr Rezo and his visitors. He was upset and angry. He said that “he would take matters into his own hands”. Ms Diehm encouraged him not to do so and explained to him that Housing ACT was working on the matter. Mr Meyers said that “he was going to consumer affairs and the media in regards to the situation”. Ms Diehm notified a Regional Manager within Housing ACT, Alexandra Groves, of what she had been told by Mr Meyers.
As a consequence of talking to Ms Diehm, at 4:48pm the same day, Ms Groves sent an email to AFP Communications (copied to three people including Ms Diehm) recording a complaint from the plaintiff and the following terms:
Housing ACT received a telephone call this afternoon from Mr Daniel Meyers regarding the occupants of 11 Warwick Court, 25 O’Neill Street in Spence.
Housing ACT is aware of ongoing neighbourhood concerns/complaints regarding this address due to undeclared residents and dogs.
Mr Daniel Meyers informed how housing manager that he was prepared to take “matters into his own hands” and do “what he had to do”.
Should you have any questions or queries in relation to this matter, please feel free to contact me on [phone numbers set out].
Ms Diehm received a telephone call from “one of the neighbours” on 17 February 2016. She reported this to Ms Grillo in the following terms:
I know this is a pain and there is so many other tenants but I have had the neighbour on the phone saying the dogs get left tied up at the bottom of the stairs making access difficult… Just another thing to add to the growing list…
Do we have a game plan yet?
As a result of these further complaints and the absence of any proposal by DAS to take further action, Ms Diehm embarked upon a course designed to compel Mr Rezo to engage with Housing ACT in relation to his troublesome guests and their dogs. On 19 February 2016, Ms Diehm wrote to Mr Rezo noting that Housing ACT had information that Mr Matas and his partner, Ms Skinner, had moved into the property. It then requested him to complete an enclosed rental rebate application and lodge it with Housing ACT for reassessment of his rental rebate entitlement. The letter indicated that the effect of the request was that if the application was not returned then the rental rebate in relation to the property would be cancelled and full weekly rent of $290 per week would be required. While this letter made no reference to the problem of dogs, it was sent in order to compel Mr Rezo to address the presence of Mr Matas and Ms Skinner and thereby deal with the issue of the dogs.
The evidence of Ms Diehm and Mr Adkins established that when there were unauthorised occupants in premises leased from the Commissioner, a letter from Housing ACT suggesting the possibility of the cancellation of the rental rebate was a standard method of compelling tenants to properly address the issue. That is because if the lessee did not address the issue then market rent, as opposed to subsidised rent, would be deducted from their social security payments and that this would be perceived as an undesirable outcome so far as the tenant was concerned because it would usually leave the tenant with very little money after the payment of rent. If the tenant did make an application to permit the additional occupants in the premises then that would not only permit the Commissioner to permit or refuse permission for those persons to reside in the premises, but the making of the application would also assist the Commissioner if the issue could not be satisfactorily resolved and the Commissioner ultimately sought an order terminating the tenancy from the ACAT.
The sending of the letter did have the desired effect and on 1 March 2016. Mr Rezo called Ms Diehm from a neighbour’s telephone and agreed to come in to the office the next day to discuss his “[v]isitors” to the property. This was the first occasion upon which Ms Diehm had been able to speak to him since seeing him on 22 December 2015. However, he did not come to that appointment.
There were no other complaints or further action in relation to the dogs at the premises for another 14 days.
At 8:21pm, 14 March 2016, Ms Manley wrote an email to Ms Diehm with the subject line “Squatters upstairs”. The email was as follows:
I have spoken to Dan [Meyers] and Kim [Lahiff] about the squatters in 11/25 O’Neill st. They have informed me that you can’t do anything about them, it seems that they have more rights than us. Dan and Kim are talking about leaving and I think that is discussting [sic] and wrong.
I am letting you know that tomorrow I will be seeking advice from the tenants [sic] union and will be asking them to give contact details for a Human Rights lawyer. Also I will not be paying any more rent from this week on. You see if these people can drive a rent paying tenant from his own flat and squat their and completely get away with it I don’t see why I can’t as well.
Please get back to me anytime you like.
At 9:30am on 15 March 2016, Ms Diehm telephoned Mr Rezo but there was no answer and a message was left.
The attack on the plaintiff
The plaintiff was attacked by the two dogs late in the evening of 15 March 2016.
The plaintiff had come out of his house to go for a walk. When he was down the bottom of the stairs, there was a dog on a lead which was barking. He went to a friend’s house. When he came back, the dog was off its lead and attacked him by biting his left hand. He fended it off for a while and then the dog continued biting his left hand and then his right hand. He fell to the ground. He thought he was going to die and called out. Two people came out from unit 11 as well as another dog. The other dog came down and started biting his right shoulder. Mr Matas was trying to get the dogs off by beating them with sticks. The plaintiff managed to get up and swing his arms so as to dislodge the dogs. Ms Lahiff let the plaintiff into her unit.
The circumstances following the attack were described in a Statement of Facts prepared by Constable Ben O’Brien, one of the police officers who had attended the scene shortly afterwards. Relevantly, it provided:
About 10:50pm, Tuesday 15 March 2016 Police receive multiple 000 calls regarding a disturbance at 25 O’Neill Street Spence ACT involving a dog.
About 10:55pm Police arrived and observed a large dog standing outside the … unit block containing numbers 9-12 of 25 O’Neill Street Spence. The dog barked at Police as they approached. Police observed a number of pieces of timber and a tree branch near the dog, as well as blood on the dogs [sic] mouth and on the concrete.
The dog retreated up the stairs that [led] to units 11-12. Police spoke to a person through the window of unit number 9. The female stated there was someone inside that was badly injured.
A female, now known to be Kim LAHIFF, opened the door and a male walked towards Police. The male, now known to be Daniel MEYERS, had significant injuries to both arms and hands. Mr MEYERS had blood on his face and neck that appeared to be from an injury sustained to his left ear. Mr MEYERS’ shirt and pants also appeared … to have significant amount of blood on them.
Police sat Mr MEYERS down and assisted Ms LAHIFF putting towels around his injured arms.
Ms LAHIFF stated she heard noises coming from outside her apartment, and when she went to look she saw a dog on top of Mr MEYERS, who was on the ground. Ms LAHIFF stated someone was hitting the dog and trying to get it off Mr MEYERS. Ms LAHIFF brought Mr MEYERS into her apartment after he was able to get free from the dog.
Mr MEYERS stated he was coming home to his unit at number 12, when a female “Pitbull” dog attacked him. He stated while he was being attacked another “Pitbull” dog, this one a male named “Diesel”, came running down the stairs from number 11 and also started attacking him. Mr MEYERS stated both dogs were owned by the people living at number 11, Alan and Jodie.
About 11:05pm that evening ACT Ambulance Service (ACTAS) members arrived and began treating Mr MEYERS. Mr MEYERS appeared to be in a significant amount of pain as he was being treated. ACTAS members took several photographs of Mr MEYERS’ injuries before they bandaged his arms.
ACTAS members cut Mr MEYERS’ shirt off, which revealed numerous puncture wounds to both of his upper arms, and flesh missing from his right bicep.
About 11:42pm that evening Domestic Animal Services (DAS) member Andrew HARROLD attended the scene to seize the male dog.
Mr MEYERS was conveyed to The Canberra Hospital (TCH) by ACTAS. Upon arrival at TCH Mr MEYERS’ injuries were photographed. Mr MEYERS’ injuries were as follows:
Significant punctures and tears to the right hand and wrist-bone and tendons visible
Puncture wounds to the left hand and wrist
Puncture wounds to the right upper arm, and flesh missing from the right bicep
Puncture wounds to the left upper arm
Puncture wounds to the left ear
TCH staff indicated Mr MEYERS would be taken in for surgery.
About 2:20 am, Wednesday, 16 March 2016 DAS seized the second dog from 11/25 O’Neill Street, Spence with assistance from Police.
DAS to take carriage of investigation.
Photographs of the injuries inflicted upon Mr Meyers by the dogs illustrate wounds that can reasonably be described as horrific. He was fortunate not to be killed. Had he been a child or a frailer person, it is likely that he would have been killed.
The basis for seizing the animals was recorded in seizure notices prepared at the time of their seizure. In relation to each animal, the basis was identified as first, the “dog was in a public place without a carer”, and second, that “It is alleged that your dog has harassed or attacked a person or another animal, or exhibited behaviour giving reasonable belief or fear that it may attack another person or animal”. At the time that the DAS ranger, Andrew Harrold, took possession of the dogs, Mr Matas surrendered the dog “Diesel”. However, he claimed the dog “Nala” and hence the rangers seized it under the statutory authority of the Domestic Animals Act.
Events following the attack
The day after the attack, 16 March 2016, Ms Diehm sent an email at 9:42am to Mr Ritzen in relation to the removal of the dogs and asking for “a rundown on what happened”. She asked him to call or email. She subsequently spoke to someone at DAS who indicated that the dogs had been impounded and had been classified as dangerous dogs. The person at DAS told her that it was doubtful that the requirements for owning a dangerous dog would be complied with and that the most likely outcome was that the dogs would be euthanased.
Ms Manley spoke to Ms Grillo on the morning of 16 March 2016 and Ms Diehm in the afternoon. Ms Manley indicated that she would provide a written account of the events that had occurred and she did so on 17 March 2016.
On the afternoon of 16 March 2016, there was a discussion between Ms Lahiff and Tony Tisdell who is described as the FOI Officer in the Complaints and Information Unit. She complained that nobody from Housing ACT had rung her to find out if she was okay. The issue of blood contamination of her property from Mr Meyers’ wounds was discussed and Mr Tisdell told her that she could contact Spotless (the maintenance contractor for Housing ACT) “who may be able to organise to clean the property due to blood contamination but she may be charged”. She requested that somebody from Housing ACT call her. Subsequently, Ms Diehm called her and organised for the blood in her unit to be cleaned at no cost to her.
Ms Diehm attempted to call Mr Rezo on the morning of 16 March 2016 but received no answer.
At some stage on 16 March 2016, the senior executives of Housing ACT (referred to in evidence as “the Executive”) had told Mr Adkins, Senior Manager of Operational Services for Housing ACT, that they wished to seek immediate eviction of Mr Rezo under s 51 of the Residential Tenancies Act. Mr Adkins advised there was no realistic chance of successfully obtaining eviction under s 51 in circumstances where the dogs had been removed. He gave advice that the more common process for termination of a tenancy available under s 48 of the Residential Tenancies Act should be followed. The Executive took his advice and determined to proceed down that path. Because the Executive had given a direction to apply for termination it was not necessary to follow the usual process in relation to termination which would have involved a referral to the Housing and Tenancy Review Panel (HATRP).
As a consequence, Ms Diehm was directed to proceed down the path towards termination of the tenancy under s 48. She prepared, and Ms Grillo signed off on, a document entitled “Housing Manager - Notice To Vacate (NTV) Request”. That was a form necessary as part of the internal processes of Housing ACT to be completed and approved prior to the issue of a Notice to Vacate. The document recorded previous attempts to contact the tenant since the Notice to Remedy. The form required the Housing Manager’s supervisor to sign under the following statement:
I believe the Housing Manager has explored all appropriate options in assisting the tenant to comply with the Tenancy Agreement. Consistent with the relevant legislation, policies and procedures. I agree to issue an NTV to the tenant.
As a result of this approval, a termination notice was prepared requiring Mr Rezo to vacate the premises on or before 5 April 2016. That was served, along with a covering letter, by sending it by post on 16 March 2016 to Mr Rezo’s address in Spence.
On 18 March 2016, Matt Potter, a licensing officer within Territory and Municipal Services Directorate, prepared an email outlining the status of the investigation into the attack. That email indicated that Ms Cawthorne was to be provided with a full update on Monday, 21 March 2016. There is no evidence as to whether or not any person was prosecuted as a result of the attack by the dogs on the plaintiff. Having regard to the terms of s 49A of the Domestic Animals Act, Mr Matas would have been an obvious target for such a prosecution.
On 21 March 2016, Ms Diehm emailed Mr Ritzen seeking further information about whether the dogs were still in the possession of DAS and whether there had been any progress on a dangerous dog licence for the owner of the dogs.
On the morning of 21 March 2016, Ms Grillo telephoned Mr Rezo. Mr Rezo agreed to come in to the office that afternoon to discuss the situation. Later that day, a support worker and Mr Rezo contacted Ms Diehm by telephone and arranged a meeting for later that day.
Ms Diehm and another officer from Housing ACT went to the premises and had a meeting with Mr Rezo and the support worker to discuss what was going to happen in relation to his apartment. During that discussion Mr Rezo was given the opportunity of surrendering the apartment immediately or doing so in accordance with the Notice to Vacate. Mr Rezo admitted that he was very frightened of Mr Matas, the owner of the dogs. Ms Diehm said that she could help him find another property after vacating his current property.
The same afternoon, Ms Diehm spoke to Ms Lahiff about the dog attack. Ms Lahiff said that she and her neighbours required an urgent transfer to different accommodation. She was curious as to why the Housing Manager had not pressed this issue further. She said that she had previously told Ms Diehm that the dogs had been tied up at the front of the property, asserted that this was animal cruelty and was curious as to why Ms Diehm had not taken this further. She said that she and her neighbours’ rights had been violated by the dogs and the undeclared residents at unit 11. Ms Diehm explained that Housing ACT had taken the necessary steps in the legal process required by the Residential Tenancies Act. She explained that Housing ACT was bound by the Act and had to work within the confines of the Act. She suggested that if Ms Lahiff and her neighbours wished to transfer then they should put in the appropriate forms.
Ms Diehm also spoke to Ms Manley to check on her well-being after the dog attack. On 21 March 2016, she recorded that: “Tenant was engaging and happy to discuss issues with [the Housing Manager]. No further action required”.
On 21 March 2016, the Team Leader, Ms Stosic, and the Regional Manager, Ms Grillo, requested from the “Operational Services” part of Housing ACT that orders be sought from the ACAT removing the “trespassers” from the property.
On 22 March 2016, a visitor to the DAS premises in Symonston sought to see the dog “Nala”. He described himself as the father of the owner of the dog. His request was refused. That evening Ms Cawthorne advised rangers to take particular care with locking the facility that night as she had a concern that someone may attempt to retrieve the dog. That evening both dogs were sedated and checked for microchips. A microchip was located in “Diesel” and the owner details were then recovered from an ownership database. That process indicated an owner other than Mr Matas or Ms Skinner, although Mr Matas was recorded as an “alternate contact” for the dog.
On 22 March 2016, proceedings were commenced in the ACAT by the Commissioner against Mr Rezo seeking termination of his tenancy and, if that order was refused, an order preventing him from having or keeping a dog at the premises. The application also sought that it be listed for hearing as soon as possible after the expiration of the Notice to Vacate on 5 April 2016.
Also on 22 March 2016, there was a meeting between Ms Meyers, the plaintiff’s sister, and representatives of Housing ACT in relation to Mr Meyers’ future needs. A detailed file note was kept. There was also a meeting between Mr Rezo, his support worker and Ms Stosic, Ms Grillo and Ms Diehm. Mr Rezo’s support worker indicated that he would be making an application to the ACAT to permit him to stay in the premises. Mr Rezo said that he was not willing to apply for a protection order against Mr Matas.
A further attempt was made on 23 March 2016, by a person identifying himself as “Allen John” to see the dog “Nala” at the DAS premises. He said, “the dog was his and it hadn’t done anything wrong so he wanted to come to DAS and get the dog.” He was told to bring identification and proof of ownership if he wished to see the dog.
On 24 March 2016, there was communication between a Tribunal Advocate at Housing ACT and Ms Meyers about Mr Meyers being a witness in the ACAT proceedings. Ms Meyers indicated that the plaintiff had just come out of his fourth surgery at that stage. He had his little finger amputated and his hand attached to his leg to maintain its blood flow.
On Saturday, 26 March 2016, Ms Manley sent an email to Ms Diehm saying that the visitors to Mr Rezo’s unit were back again and that until Mr Rezo was removed they would keep coming back. On 29 March 2016, Ms Diehm met with Ms Manley and also conducted a visit at Mr Rezo’s property.
On 29 March 2016, the ACAT set a hearing date of 7 April 2016 in relation to the Commissioner’s application. This listing of the matter shortly after the expiry of the Notice to Vacate was consistent with the request that had been made at the time the proceedings were commenced.
Because Mr Rezo had not effectively addressed the allegation that Mr Matas and Ms Skinner were living in his unit in breach of the terms of his lease, full rent was deducted from his Centrelink payment. On 24 March 2016, he had submitted an application for a refund of some of the rent paid. He went in to Housing ACT on 30 March 2016 in order to see how his application for a rebate was progressing. That afternoon Ms Diehm and Ms Grillo went to see him at his premises. He was advised to get a personal protection order against Mr Matas to help get him out of the property. He said that he would move and if Mr Matas attempted to move with him, then, at that stage, he would obtain such an order. He said that he had asked Mr Matas and his partner to leave but they were taking a long time to do so. Ms Diehm and Ms Grillo explained to him that the visitors were required to leave the property immediately and if the situation continued, then Mr Rezo may lose his tenancy and become homeless. He was encouraged to attend Canberra Community Law (a community legal centre that may have been able to provide him with advice and assistance).
Paragraph 43.1
Paragraph 43.1 was particularised in a manner which resulted in it not adding anything to the other allegations of breach.
Paragraph 43.2
Paragraph 43.2 squarely raised the failure to remove the dogs from the complex on 8 January 2016 or at any time up until the plaintiff was attacked.
DAS received a complaint about the incident on 8 January 2016 through Mr Lahiff’s telephone call to Mr Ritzen, Ms Diehm’s conversation with Mr Ritzen on 8 January 2016, the email sent to Minister Corbell on 8 January 2016 and the follow up email on 13 January 2016. DAS also received the request for information about the statutory powers available from Ms Diehm on 16 February 2016.
On both 8 and 13 January 2016, rangers from DAS attended the premises with a view to locating the dogs. On neither occasion were the dogs able to be located. Had they been able to be located, then seizure of the dogs under s 59 of the Domestic Animals Act would have been an available option because, at that point, Mr Ritzen suspected on reasonable grounds that the dogs had attacked or harassed Mr Lahiff. No occasion for the exercise of discretion under s 59 arose because the dogs could not be located. In those circumstances, the failure to exercise a discretion to seize the dogs under s 59 could not amount to a breach of the pleaded duty. It is only if the duty compelled further action to locate the dogs that there might have been a breach.
Had Mr Ritzen been able to find the dogs, it is unlikely that he would have in fact seized them. That is because the routine practice within the DAS was that on the first occasion where a dog harassed a person, the authorised officer would generally issue a Warning Notice and speak to the owners about containing their dogs. That is consistent with the intention that he had as recorded on the DAS complaint form. As pointed out above (at [74]), had the incident been characterised as an attack then the usual course would have been to seize the dog pending full investigation of the incident.
Can it be said that this course was unreasonable? The answer to this question illustrates some of the difficulties that would exist if a duty of care in relation to the exercise of statutory powers was imposed. It essentially asks whether the discretionary decision as to the regulatory approach to be taken adopted by the person authorised under statute was robust enough. Would a decision to issue a Warning Notice constitute a breach of duty? This issue obviously involves a balance between the competing interests of the members of the public who may be affected in the future if the owner fails to comply with the owner’s obligations, the interests of the owner and the dog and the time and resources available to be devoted to the issue having regard to competing claims upon those resources. The vigour with which a regulatory officer pursues enforcement of the relevant statute is clearly a matter where public policy and political considerations become relevant.
If the hypothesised duty did in fact exist, then that in turn may inform what was reasonable. That is because a reasonable statutory officer, having regard to potential personal liability or the liability of the Territory, would exercise the officer’s discretion in a more interventionist manner because of that potential liability. If the necessity to act defensively is taken into account, then that would tend to make intervention more reasonable and non-intervention less so. This fact illustrates the distorting effect that the imposition of a duty of care would have upon the exercise of a statutory discretion.
Leaving these potential complications aside, can it be said that in the circumstances it would not have been reasonable for Mr Ritzen, had he found the dogs, to have merely issued the Warning Notice and had a discussion with the owner? Assuming the pleaded duty to be to take reasonable steps towards the outcome, in my view, it is not possible to say that such a course would have been unreasonable. First, the reasonableness of the course would need to be assessed in light of any interaction with the owner of the dogs that had occurred. Given that no interaction did occur, it is not possible to reach a concluded view on reasonableness. Second, leaving that difficulty aside, in many cases, such a course would completely solve the problem and in those circumstances it could not be characterised in light of the matters in s 43 of the Civil Law (Wrongs) Act as an unreasonable course. In any event, given that Mr Ritzen never found the dogs, a possible failure to have acted reasonably if he had done so would not be causally related to the damage suffered.
Paragraph 43.3
This paragraph alleges a number of different failures. The first is a failure to investigate the registration ownership and control of the dogs. The plaintiff directed no submissions to this failure. The factual basis for this allegation is not made out. Mr Ritzen did investigate the registration and ownership of the dogs shortly after he received the complaint from Mr Lahiff. In any event, it is not clear what, if any, causal relationship this alleged failure had to the damage suffered.
The second alleged failure is the failure to gain access to unit 11 in the complex. The plaintiff directed no specific submissions to this alleged failure. On both occasions when the rangers attended, there was nobody present at unit 11 who could give consent to enter the premises. The powers under s 130 of the Domestic Animals Act which were available in certain specified emergency situations to permit the seizure of a dog, were not enlivened in the circumstances. Section 129 of the Domestic Animals Act provided for entry onto premises in accordance with a search warrant obtained from a magistrate pursuant to s 133 of the Act. In the absence of any specific submissions explaining why a warrant should have been obtained when the rangers were responding to a first instance of harassment, where no injuries resulted from that attack or harassment, where no contact had been made by the officers with the dogs or the owners so as to permit them to assess their willingness to comply with their obligations in future, I would not have been prepared to find that the failure to obtain (or attempt to obtain) a warrant to enter the premises was in breach of the asserted duty.
The third alleged failure is failing to seize the dogs. This repeats paragraph 43.2 which has been dealt with above.
The fourth alleged failure is failing to destroy the dogs. Once again, this was not the subject of any submissions by the plaintiff. There are various statutory powers which permit the destruction of dogs in certain circumstances: ss 53, 66, 68. In the absence of any submissions explaining this contention (or how it could succeed if there was no breach of duty in relation to the failure to seize the dogs), I am not satisfied that there would have been any breach of the asserted duty.
Paragraphs 43.4-43.6
The allegations in paragraphs 43.4-43.6 relate to advice or warnings given or not given to either Housing ACT or the residents of the complex. None of these were subject to specific submissions made by the plaintiff. None of them could constitute a breach of the pleaded duty because the pleaded duty was a duty to exercise statutory powers and none of the statutory powers relate to advice or warnings to either Housing ACT or members of the public such as the residents of Warrock Court. Further, no causal relationship has been established between the advice or warnings given or not given and the suffering of harm by the plaintiff as a result of the attack. For example, it has not been established on the balance of probabilities that the plaintiff would have acted any differently had he been given the advice referred to in paragraphs 43.5, 43.6 or 43.6 (second appearing).
Paragraph 43.7
This paragraph pleads a failure to have a system in place for the assessment, control and/or management of the dogs whilst they remained at the complex. A request for particulars of this allegation was objected to, but some information was provided in any event. That information was that actions that could have been taken included ensuring that the dogs were not left in common areas, ensuring the dogs were muzzled and not left unsupervised and warning residents of the danger posed by the dogs. As a result of the failure to particularise what was alleged, it is not clear what statutory powers the plaintiff says should have been exercised but were not. That is significant because the duty pleaded is limited to the exercise of statutory powers. Having regard to the absence of particularisation and the absence of submissions on the point, I am not satisfied that this breach would have been established.
Had such measures been proven to be a breach of duty, then an assessment would need to be made as to whether or not damage to the plaintiff was caused by that breach. That would depend precisely upon the measures that ought reasonably to have been taken. It is not possible to undertake that assessment in the absence of those measures being identified.
Civil Law (Wrongs) Act, Part 4.2
In reaching the conclusion set out above, I have had regard to the provisions in pt 4.2 of the Civil Law (Wrongs) Act. I have not individually addressed the matters in s 43(1) or the considerations in s 43(2) because of the number of individual allegations of negligence and the difficulties with those allegations mean that it would not have been a useful exercise.
Civil Law (Wrongs) Act, Section 112
In the event that breaches were otherwise made out, it would have been necessary to consider the operation of s 112 of the Civil Law (Wrongs) Act. Section 112 provides:
112. When public or other authority not liable for failure to exercise regulatory functions
(1) A public or other authority is not liable in a proceeding so far as the claim in the proceeding is based on the failure of the authority to exercise, or to consider exercising, a function of the authority to prohibit or regulate an activity if the authority could not have been required to exercise the function in a proceeding begun by the claimant.
(2) Without limiting what is a function to regulate an activity for this section, a function to issue a licence, permit or other authority in relation to an activity, or to register or otherwise authorise a person in relation to an activity, is a function to regulate the activity.
The provision is in almost identical terms to s 44 of the Civil Liability Act 2002 (NSW). It was based upon the New South Wales provision: Civil Law (Wrongs) Amendment Bill 2003 Explanatory Statement at 16-17.
Section 44 of the New South Wales Act was considered by Beech-Jones J in Lee v Carlton Crest Hotel (Sydney) Pty Ltd [2014] NSWSC 1280. His Honour said (at [391]-[400]):
391.The origins of s 44 appear to be something of a mystery. Chapter 10 of the Review of the Law of Negligence (the "Ipp Report") (Law of Negligence Review Panel, Parliament of Australia, Review of the Law of Negligence Final Report (September 2002) 151-163) recommends various principles as the basis for law reform, including four concerning the liability of public authorities. None of them remotely resembled s 44. Instead s 44 in its enacted form first appeared as s 46 in the "Consultation Draft" of the Civil Liability Amendment (Personal Responsibility) Bill 2002 that was released on 3 September 2002. The notes accompanying that draft simply stated:
"(f) ... (iii) a public or other authority that has functions to prohibit or regulate an activity will not be liable in connection with a failure to exercise the function or to consider exercising the function unless the authority could have been compelled to exercise the function."
392. The Consultation Draft led to the tabling of the Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW) (No 92 of 2002) which introduced the second wave of reforms which commenced with the passage of the CLA on 20 March 2002. Section 46 was reproduced as s 44 of that Bill. It passed through both houses unamended. Both the Premier's second reading speech to the House of Assembly and the Treasurer's second reading speech to the Legislative Council stated as follows in relation to s 44:
"An authority that has not exercised a regulatory power - such as a power to close a fishery - will also not be liable unless it could have been compelled by a court to exercise that power."
393. The explanatory note to the Bill made the same statement in relation to this provision as the notes accompanying the Consultation Draft extracted above.
In light of there being nothing useful in the New South Wales or ACT explanatory material that might elucidate the policy rationale for this provision, the policy rationale and intention behind it is very hard to discern. Professor Aronson has speculated that “Perhaps the drafters were inspired by Lord Hoffman’s ill-fated and misconceived attempt in Stovin v Wise [1996] AC 923; 3 WLR 388 at 952-953 to build a common law duty to take positive action out of the breach of a duty to validly consider whether to exercise a power”: Mark Aronson, ‘Government Liability in Negligence’ (2008) 32 Melbourne University Law Review 44 at 75. That was possible because the Review of the Law of Negligence: Final Report (‘Ipp Report’) had recommended that Lord Hoffman’s reasoning be adopted in statutory form: Commonwealth of Australia, Review of the Law of Negligence: Final Report (2002), 157.
Apart from that possibility, the words of the provision that must be construed with no useful input from extrinsic materials. In Lee (at [394] ff), Beech‑Jones J explained s 44 of the New South Wales Act as follows:
394. Section 44 has been referred to in a number of cases, but it appears to have so far successfully evaded interpretation and application (see for example Makawe and Kuehne).
395. Three issues appear to be raised by s 44. The first is to determine "the extent [that a public or other authority's] liability is based on the failure of the authority to exercise or to consider exercising any function ... to prohibit or regulate an activity". The second is whether the relevant authority could have been required to exercise the function. The third is whether it could have been required to exercise the function "in proceedings instituted by the plaintiff".
396. In relation to the first issue, it seems clear that s 44 is meant to encompass a true non‑feasance case at common law. However, what about a case in which part of the complaint concerns the failure to exercise an "interconnected statutory power [from one which] has already occurred" (Pyrenees Shire Council at [177] per Gummow J)?
His Honour then went on to consider the circumstances of the case before him relating to a Council which was involved in detailed consideration of the exercise of its statutory powers by undertaking inspections and issuing statutory certificates but failed to exercise a statutory power to prohibit the use or occupation of the car park under a particular statutory section. His Honour found in the circumstances of that case, that the Council was liable for issuing one of the certificates that it did and hence, it made no difference that it might also have been liable for failure to prohibit the use or occupation of the car park. That was sufficient to conclude that s 44 was not engaged in the circumstances of that case. His Honour continued:
399. More generally I suspect, but need not decide, that the correct position is that any case that is truly characterised as a misfeasance case at common law is not one that engages s 44. Such a case will be properly characterised as one "based on" the relevant power or act that was negligently performed. The fact that, had it not been performed in a negligent manner, it would or perhaps even should have resulted in the exercise of a further power will not necessarily mean that the case was "based on" the failure to exercise that power.
400. In light of this conclusion, it is not necessary to resolve the second and third issues noted in [395] above, but I will briefly comment. In his book, Annotated Civil Liability Act 2002 (NSW), Mr Villa states that s 44 reflects the passage from the judgment of Brennan CJ in Pyrenees Shire Council at [24] to [28] (Dominic Villa, Annotated Civil Liability Act 2002 (NSW) (Thomson Reuters, 2nd Ed, 2013) at [5.44.030]). Presumably the basis for this assertion is that that judgment is the only judicial discussion in this country that invokes public law principles in this context. For present purposes, two matters should be noted about Brennan CJ's judgment in Pyrenees Shire Council. The first is that his Honour observed that, notwithstanding that only a discretionary power may be conferred, circumstances may be such that the public authority can be compelled to exercise it (at [23]). His Honour found that Pyrenees Shire Council was under such a duty in that case (at [28]). The findings I have made warrant that conclusion in relation to s 316 in this case. Second, Brennan CJ repeatedly described the type of powers that were so amenable as those which were directed towards protecting the person or property of a distinct class of people, as opposed to a power which is "to be exercised for the benefit of the public generally" (at [26]). His Honour considered that any person who was within that class had, inter alia, "locus standi to seek a public law remedy" (at [25]).
The section was also discussed in Bankstown City Council v Zraika [2016] NSWCA 51; 94 NSWLR 159 at [79] ff. In that case Leeming JA explained (at [90]) that because the exemption is from liability “based on” the failure of the authority to exercise or consider exercising the function, this naturally directs attention to the way in which the plaintiff’s case has been formulated. While that formulation is not necessarily determinative and the distinction between nonfeasance arising from a failure to exercise or consider exercising the function and misfeasance may well be contestable, it is at the core of the operation of the section.
Although the submissions of the defendant treated the section as only raising a question of standing, I accept that s 112 raises the three issues identified by Beech‑Jones J (at [395]), namely:
a)to what extent is the liability “based on the failure of the authority to exercise or to consider exercising a function ... to prohibit or regulate an activity";
whether the relevant authority could have been required to exercise the function; and
whether the authority could have been required to exercise the function "in proceedings begun by the claimant".
This analysis appears to me to be more consistent with the language of the provision, than the conclusion reached by Whealy J in Kuehne that the provision is limited to issues of standing: Kuehne at [148]-[151].
As far as the first issue is concerned, the formulation in the plaintiff’s claim is for breach of a duty of care which is limited to the exercise of statutory powers. The statutory powers are powers to seize the dogs, destroy the dogs, obtain entry into private premises or to declare the dogs to be dangerous dogs: FASC, at [42.2]. The Oxford English Dictionary defines “regulate” to mean “[t]o control, govern, or direct, esp by means of regulations or restrictions.” The Macquarie Dictionary defines it as “to control or direct by rule, principle, method, etc.” In my view, each of the statutory powers in relation to the dogs involved a power to “regulate” an activity, namely, the keeping of dogs. This is not a case, such as Lee or Zraika, where the failure to exercise the power occurred during the course of other statutory activities. Rather, any activities of the rangers were non‑statutory - attending premises, seeking to talk to the owner of the dogs, issuing a warning. Therefore, had it been necessary to decide the issue, I would have inclined of the view that the plaintiff’s claim was a claim asserting liability based upon “the failure… to exercise… a function… to… regulate an activity”.
So far as the second issue is concerned, it is unlikely that the plaintiff would have been able to require the exercise of the function. That is because each of the identified statutory functions, seizing a dog, obtaining entry into private premises, destroying the dogs or declaring the dogs to be dangerous involved a statutory discretion on the part of either an authorised person or the registrar. In the case of obtaining entry into premises, depending on the circumstances it may also require the favourable exercise of discretion by a magistrate. There was no statutory duty to take these actions which would be compelled by an order of mandamus.
The third requirement, that of standing, is likely to have been satisfied if there had been a duty compellable by mandamus. That is because the plaintiff was a person who, having regard to the proximity to the residents at which the dogs were being kept, had a special interest in the subject matter of any claim for mandamus.
Because any conclusion that I reach on this issue is, having regard to my conclusion in relation to the existence of a duty of care, not essential to determine the proceedings and because the submissions made upon this issue were less than complete, I consider it inappropriate to express a final conclusion on this issue.
Finally, I observe that while s 112 may have been enacted merely because it had been enacted in New South Wales and there may be some useful policy underlying its enactment, that policy is not apparent from the words of the section or the available extrinsic materials. Courts will endeavour to give its words some sensible operation, but if its purpose remains a mystery that may well be difficult. In those circumstances, the terms and utility of the section may be a subject worthy of consideration by the legislature.
Issue 8: If the duty was breached, did it cause the harm suffered by the plaintiff?
Having regard to the conclusion that if a duty existed that duty had not been breached, it is not necessary to determine this issue. Further, it is not possible to make contingent findings in relation to the issue because the variety of breaches that are alleged are such that each would require specific findings on causation that would be sensitive to the factual findings as to what constituted the breach of duty. I only observe that any consideration of causation would need to have regard to the evidence considered in relation to issue 5.
Summary and conclusion
In summary, the issues identified at [178] above have been resolved as follows:
1.Did the Commissioner breach cl 52 or rule 6 of the plaintiff’s tenancy agreement? No.
2.If so, did the breach cause the harm suffered by the plaintiff? No.
3.Did the Commissioner owe to the plaintiff any pleaded duty of care? Yes.
4.Did the Commissioner breach any such duty of care? No.
5.If there was a breach of the duty of care, did that cause the harm suffered by the plaintiff? No.
6.Did the Territory owe the plaintiff the pleaded duty of care? No.
7.If so, was that duty breached? No.
8.If the duty was breached, did it cause the harm suffered by the plaintiff? Not determined.
In light of those conclusions:
a) The plaintiff’s claim against the Commissioner under his lease must fail.
b) The plaintiff’s claim of breach of duty under s 168 of the Civil Law (Wrongs) Act or at common law against the Commissioner must fail.
c) The plaintiff’s claim against the Territory arising from the conduct of officers of DAS must fail.
As a consequence, the plaintiff’s claims must be dismissed and judgment entered for the defendants.
The dismissal of the plaintiff’s claims does not indicate that it is appropriate that a citizen can get savagely mauled by dogs whilst lawfully going about his business. In an urban community where crime rates are low, there is no reason why citizens need dogs that are of such a temperament as to represent a threat to the lives of other citizens. In this case, the plaintiff suffered a severe attack to his hands and shoulder, and lost a finger. He was very lucky not to be killed. Neither the difficulties of designing an appropriate legislative scheme, nor the importance of the respect for private property or the autonomy of dog owners, require a legislative regime which permits residents of Canberra to be put at risk by aggressive dogs owned by others.
Order
The orders of the Court are:
1. Judgment be entered for the first and second defendants against the plaintiff.
2. The plaintiff is to pay the defendants’ costs of the proceedings.
3. Order 2 may not be entered for a period of 14 days from the date of these orders.
| I certify that the preceding three hundred and four [304] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: |
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