Serbanescu v Herter; Serbanescu v McKee - [2004] VSC 358

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 4883 of 2004

BETWEEN

DANIEL SERBANESCU	Appellant
v
TOM HERTER (City of Knox)	Respondent

No. 4884 of 2004

BETWEEN

DANIEL SERBANESCU	Appellant
v
CHRISTOPHER McKEE (City of Whitehorse)	Respondent

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JUDGE:	Williams J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 – 24 June 2004
DATE OF JUDGMENT:	22 September 2004
CASE MAY BE CITED AS:	Serbanescu v Herter; Serbanescu v McKee
MEDIUM NEUTRAL CITATION:	[2004] VSC 358

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MAGISTRATES – Appeal from convictions as “owner” of dogs and “dangerous dogs” under s 24(2), s 29(1), s 41(1) of the Domestic (Feral and Nuisance) Animals Act 1994 – Whether appellant was the “owner” of dogs – Whether s 29(4) or s 94(1)(a) operated to limit meaning of “owner” in s 29(1), s 24(2) or s 41(1) – Whether “dangerous dogs” which had attacked another dog after escaping from non-residential premises which they had been guarding were “guard dogs guarding non-residential premises” under s 29(1) at the time of the attack- Domestic (Feral and Nuisance) Animals Act 1994 s 24(2), s 29(1), s 29(4), s 41(1), s 91 and s 94(1)(a).

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr A Hands	Frank Horvat & Co
For the Respondents	Mr B Stafford	Goddard Elliott

HER HONOUR:

The appellant has appealed from the decisions in two separate proceedings of the Magistrates’ Court at Ringwood constituted by Mr Hallenstein M on 4 February 2004 convicting him of offences under s 24(2), s 29(1) and s 41(1) of the Domestic (Feral and Nuisance) Animals Act 1994 (“the Act”).

The respondent informant in each proceeding was an authorised municipal local law officer. The appellant had been charged with a number of offences under the Act in relation to dogs of which the learned Magistrate found him to be the “owner”. He had pleaded guilty in respect of some of the charges, but had maintained that he was not guilty in relation to others, including those laid by the City of Whitehorse, under s 24(2), s 29(1) and s 41(1) of the Act, and the City of Knox, under s 29(1), respectively.

The Act

The following provisions were included in the Act at relevant times:

“1.      Purpose
The purpose of this Act is to promote animal welfare, the responsible ownership of dogs and cats and the protection of the environment by providing for—
(a)     a scheme to protect the community and the environment from feral and nuisance dogs and cats; and
(b)     a registration and identification scheme for dogs and cats which recognises and promotes responsible ownership; and
(c)     the identification and control of dangerous dogs; and
…
(g)      other related matters.
3.        Definitions
(1)       In this Act –
…
“owner” in respect of a dog or cat, includes a person who keeps or harbours the animal or has the animal in his or her care for the time being whether the animal is at large or in confinement;
…
"dangerous…

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.

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Details

Case: [2004] VSC 358
Decision Date: 22 September 2004

CaseChat Overview and Summary

In this appeal, the appellant, Serbanescu, contested his convictions as the owner of dogs and as the owner of dangerous dogs under various sections of the Domestic (Feral and Nuisance) Animals Act 1994. The convictions arose from an incident where two dogs escaped from non-residential premises and attacked another dog. The appellant appealed to the Magistrates Court, arguing that he was not the owner of the dogs, and that the dogs were not dangerous at the time of the attack.

The central legal issues addressed by the court were whether the appellant was the owner of the dogs under the terms of the Act, and whether the dogs were considered dangerous under the circumstances. The appellant contended that sections 29(4) and 94(1)(a) of the Act limited the definition of "owner" and argued that the dogs were not "guard dogs guarding non-residential premises" at the time of the attack. The court was required to interpret these provisions and apply them to the facts of the case.

The court examined the relevant sections of the Act and considered the definition of "owner" and the circumstances under which dogs might be classified as dangerous. It found that the appellant was indeed the owner of the dogs, as he had the ability to control and direct their actions. The court also held that the dogs were considered dangerous because they attacked another dog after escaping from the premises they were guarding. Consequently, the convictions were upheld.

The court ordered that the appeal be dismissed, and the original convictions stood as determined by the lower court. The appellant remained liable under the Act for the actions of the dogs.

Orders