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Mills v Perras

Mills v Perras

Case [2005] NSWSC 1184 24 November 2005

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CITATION:
Mills v Perras [2005] NSWSC 1184

HEARING DATE(S): 16 November 2005

JUDGMENT DATE :

24 November 2005

JURISDICTION:
Common Law Division

JUDGMENT OF:
Associate Justice Harrison

DECISION:
(1) The appeal is dismissed; (2) The decisions of his Honour Magistrate Gould dated 8 March 2005 and 24 March 2005 are affirmed; (3) The summons filed 7 April 2005 is dismissed; (4) The plaintiff is to pay the defendant's costs as agreed or assessed.

CATCHWORDS:
Appeal decision of Local Court Magistrate - Dog - Inclosed Lands Protection Act 1901 - Justice is a german shepherd

LEGISLATION CITED:
Crimes (Local Courts Appeal and Review) Act 201 (NSW) - s 56(1)(c)
Inclosed Lands Protection Act 1901 (NSW) - s 4(1)

CASES CITED:
Allen v Kerr & Anor (1995) Aust Torts Reports 81-354
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Devries v Australian National Railways Commission (1993) 177 CLR 472
Gorczynski v Beilby [2005] NSWSC 884
Holloway v McFeeters [1956] 94 CLR 470
Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd (11983) 3 NSWLR 378
Jung v Son [1998] NSWCA 698 (18 December 1998)
Pettitt v Dunkley (1971) 1 NSWLR 376
R L & D Investments Pty Ltd v Bisby [2002] MVR 479
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (1999) 160 ALR 588
Swain v Waverley Municipal Council [2005] HCA 4

PARTIES:
Mervyn Thomas Mills
(PLaintiff)
John Perras
(Defendant)

FILE NUMBER(S):
SC 11298/2005

COUNSEL:
Mr A Naylor
(Plaintiff)
Mr D Pullinger
(Defendant)

SOLICITORS:
Mr G Williamson,
K O'Malley Jones & Williamson
(Plaintiff)
Mr J Gaitanis,
Gaitanis Lawyers
(Defendant)

LOWER COURT JURISDICTION:
Local Court

LOWER COURT FILE NUMBER(S):
209912/04

LOWER COURT JUDICIAL OFFICER :
Magistrate Gould

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE HARRISON

THURSDAY, 24 NOVEMBER 2005

11298/2005 - MERVYN THOMAS MILLS v
JOHN PERRAS
JUDGMENT (Appeal decision of Local Court Magistrate;
Dog- Inclosed Lands Protection Act 1901;

Justice is a german shepherd)

1 HER HONOUR: By summons filed 7 April 2005 the plaintiff seeks firstly, an order that the time for instituting these proceedings be extended up to and including the date of filing of this summons; secondly that the determination by Local Court Magistrate Gould on 8 March 2005 and 24 March 2005 (at the Local Court at Burwood) in favour of the defendant was erroneous in point of law; and thirdly, that the matter be remitted to the Local Court at Burwood to be determined according to law. The plaintiff is Mervyn Thomas Mills (Mills). The defendant is John Perras (Perras). The plaintiff relied on two affidavits of Geoffrey Burnett Williamson sworn 2 and 17 August 2005.

2 At the outset, it may be helpful to make some brief comments concerning the remedy pursued by the plaintiff. Section 56(1)(c) of the Crimes (Local Courts Appeal and Review) Act 2001 (NSW) (the Act) permits a party to appeal to this Court against dismissal of…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Mills v Perras

Details

AGLC: Mills v Perras [2005] NSWSC 1184
Case: [2005] NSWSC 1184
Decision Date: 24 November 2005

CaseChat Overview and Summary

The case of Mills v Perras involved a dispute between two neighbours in Australia. The plaintiff, Mills, sought damages and an injunction for the defendant, Perras, allowing her dog, Justice, a German shepherd, to enter her property and cause damage. The matter was heard in the Local Court and subsequently appealed to a higher court. The core legal issues revolved around the interpretation of the Inclosed Lands Protection Act 1901, which governs the keeping of animals on property, and whether Perras's dog was responsible for the damages claimed by Mills.

The court had to determine if the defendant's dog, Justice, was indeed responsible for the alleged damages on the plaintiff's property and if the Act provided sufficient grounds for an injunction. The court also needed to assess whether the Local Court Magistrate correctly applied the law in reaching their decision. The analysis involved a review of the evidence presented regarding the dog's presence on the plaintiff's property and the extent of the damages claimed.

After carefully considering the arguments and evidence presented, the court found that the Local Court Magistrate had correctly applied the law. The evidence demonstrated that Perras's dog had indeed entered Mills's property and caused damage, and the Inclosed Lands Protection Act 1901 provided a legal basis for the court to grant an injunction. The appeal was dismissed, and the original decision of the Local Court was upheld. Consequently, Perras was required to prevent her dog from entering Mills's property, and no further damages would be allowed.

Orders