Nicholson v Mornington Shire Council

[2007] VSC 329

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 8063 of 2007

PAULA LYNN NICHOLSON	Plaintiff
v
MORNINGTON SHIRE COUNCIL	Defendant

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JUDGE:	ROBSON J
WHERE HELD:	Melbourne
DATE OF HEARING:	20 August 2007
DATE OF JUDGMENT:	20 August 2007
CASE MAY BE CITED AS:	Nicholson v Mornington Shire Council
MEDIUM NEUTRAL CITATION:	[2007] VSC 329

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INTERLOCUTORY INJUNCTION – Application to restrain shire from destroying dog allegedly pursuant to Domestic (Feral and Nuisance) Animals Act 1994 – Application granted in order to preserve status quo pending full hearing.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the Defendant	No appearance

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HIS HONOUR:

1. I have before me an oral application made by Paula Lynn Nicholson to restrain the Mornington Peninsula Shire (“the Shire”) from putting down her dog, Capone, known as Pone, which the Shire has indicated it intends to do at five o'clock today, about two hours hence.

1. Ms Nicholson appears in person.  There is no appearance for the Shire.

1. Ms Nicholson relies upon an affidavit of today's date, in which she asks this Court to grant her a stay of the euthanasia of her dog, Capone, and states that:

"This application has been prolonged due to lawyers' costs being sought by way of the sale of my racehorse, Margez, to enable me to defend the matter of my dog, Pone, being declared a restricted breed dog under s.80 of the Domestic (Feral and Nuisance) Act 1994.”

She goes on to swear that:

"I've consulted lawyers in Melbourne, namely Voitin Walker Davis, being a Mr Geoffrey Croxford."

She further deposes that she truly believes that this application has merit:

"and I have advice from Dr Gordon Watt of the Peninsular Animal Hospital, Mt Eliza."

She swears, "my dog is not a restricted breed dog."

1. Ms Nicholson has also handed me some documents.  One is dated 17 May 2007, signed by Gordon C Watt, addressed to "Who it may concern", in which Dr Watt purports to identify the breed of the dog, Capone.  The other document is a letter dated 17 August 2007 addressed to Ms McDonald, 99 Racecourse Road, Mornington, from Alex Atkins, Director of Sustainable Environment of the Mornington Peninsula Shire.

1. Ms McDonald is a friend of Ms Nicholson's and has worked in a solicitor's office.  She is giving her friend a hand in these proceedings. 

1. The letter, dated 17 August 2007 from the Mornington Peninsula Shire to Ms McDonald, signed by Alex Atkins, Director of Sustainable Environment, states as follows: 

Dear Ms McDonald,

re restricted breed dog. 

I write to confirm our telephone conversation today, 17 August 2007 relating to the American Pit Bull terrier (restricted breed dog) owned by Paula Nicholson.

This dog was declared a restricted breed dog on 10 July 2007 by the Department of Primary Industries.  As this is the case the shire must now meet its obligations under the Domestic (Feral and Nuisance) Animals Act 1994 and destroy this dog pursuant to s.80 of the act.  This is a requirement under the Act as the dog cannot be registered within any Victorian municipalities.

Since the date of declaration the shire has, at your request, granted several extensions of time for legal options to be explored which may prevent the destruction of this dog.  It is my opinion that a reasonable amount of time has been granted for such proceedings to be considered and commenced.

This animal will be euthanized at 5 p.m. Monday 20 August 2007.  No further extensions of time will be granted. 

Yours sincerely, Alex Atkins."

1. I have considered the Domestic (Feral and Nuisance) Animals Act 1994, Act No. 81/1994 and in particular s 80.  I do not pretend to understand which part of that section the Shire seeks to rely on to put the dog down.  Nor do the documents before me shine much light on that matter.

1. Further, I do not have any information before me as to why and how the Department of Primary Industries declared the dog to be a restricted dog breed.  Ms Nicholson has informed me that she visited the Shire offices with her vet, Dr Watt, to make representations about the dog's breed. 

1. She tells me that she knows the dog's ancestors and from her knowledge of the ancestors is able to identify its breed, and that she asserts, without explanation, that it is not a restricted breed dog.  She informs me from the Bar table that she was informed by mail by the Shire of the Department of Primary Industry's decision and that she did not make any representations to them, or they did not hear her in making their decision about this dog.

1. In view of the circumstances, it seems to me that justice demands that the dog be preserved to give Ms Nicholson the opportunity to challenge the Shire’s decision, and perhaps also the Department of Primary Industry's decision, which she wishes to do. In my opinion, the subject matter of the proceedings ought to be preserved; otherwise the proceedings would be entirely frustrated.

1. Therefore I propose to make orders preserving the dog's life.  I do so simply and solely to preserve the subject matter of the proceedings so that the jurisdiction of the Court will not be frustrated and its authority will be maintained.  The Court should be permitted to hear Ms Nicholson’s application without running the risk of the dog being put down.

1. I propose to make the following order and I would ask that my associate assist by producing such an order.  The order will be in the Supreme Court of Victoria of Melbourne in a proposed action between Paula Lynn Nicholson, proposed plaintiff and Mornington Peninsula Shire, proposed defendant, wherein Ms Nicholson appeared in person and there was no appearance for the proposed defendant, the Mornington Peninsula Shire.

1. Upon the plaintiff undertaking to abide by any order which this Court may make as to damages in case this Court shall be of opinion that the defendant shall have sustained any.

1. Upon the plaintiff undertaking to institute proceedings in this Court, seeking to restrain the Mornington Peninsula Shire by its councilors, servants or agents or otherwise howsoever from destroying, euthanasing or otherwise harming the dog known as "Capone" or "Pone" belonging to Paula Lynn Nicholson by 5 o'clock on 27 August 2007.

1. I do order that until further order of this Court the Mornington Peninsula Shire by its councilors, servants or agents or otherwise howsoever be restrained from destroying, euthanasing or otherwise harming the dog known as "Capone" or "Pone" belonging to Paula Lynn Nicholson.

1. I order the further hearing of this matter be adjourned to 10.30 a.m. on Wednesday 30 August 2007.  I reserve the costs.  I reserve liberty to apply to any party, upon at least 24 hours written notice to the other party.  I will direct that the order be signed by me.  I pronounce that the order takes effect forthwith and that it may be conveyed by telephone to the Mornington Peninsula Shire or to Mr Atkins, or to any councilor, servant or agent of the Shire.

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