Tarasinski v Wyndham City Council
[2009] VSC 109
•27 March 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
COMMON LAW DIVISION
No. 5185 of 2008
| BENJAMIN TARASINSKI | Plaintiff |
| v | |
| WYNDHAM CITY COUNCIL | Defendant |
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JUDGE: | WARREN CJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 28 January 2009 |
DATE OF JUDGMENT: | 27 March 2009 |
CASE MAY BE CITED AS: | Tarasinski v Wyndham City Council |
MEDIUM NEUTRAL CITATION | [2009] VSC 109 |
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JUDICIAL REVIEW - Procedural Fairness – Dog seized by Council – Owner pleaded guilty to dog ‘rushing’ – Review of Council’s decision to destroy the dog - Whether procedural fairness accorded to dog owner - Domestic (Feral and Nuisance) Animals Act 1994 s 29 (4), s 80(4)(b).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Dr R J Sadler | Ann Valos Criminal Law |
| For the Defendant | Mr B Stafford | Elliott Stafford & Associates |
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WARREN CJ:
By originating motion the plaintiff seeks judicial review under Order 56 of the Supreme Court (General Civil Procedure) Rules 2005 of a decision made by the defendant, the Wyndham City Council, to destroy two large cross bred dogs belonging to the plaintiff. The plaintiff claims the defendant denied him procedural fairness in the execution of its discretion under the Domestic (Feral and Nuisance) Animals Act (Vic) 1994 (‘Act’).
The plaintiff lives at Werribee and has done so for about three years. At the time of the relevant events, one dog, a male, was aged six months, and the other, a female, was about four years. On 4 December 2007, the plaintiff left his home at about 7.00am and returned at about 10.30am. He left his dogs at the property. When he returned, the dogs were inside the house. Almost immediately, an officer of the defendant arrived at the house with other council officers. The plaintiff was informed that the dogs had been involved in an incident in the last hour or thereabouts rounding up an elderly woman. The council officer seized the dogs and took them away.
Subsequently, the plaintiff was interviewed by the council officer, Mr Trevor Forward, who informed the plaintiff that the dogs were involved in an incident described as ‘dog attack/rush/worry’. The plaintiff was later charged with 13 charges arising under the Act. When the summons came on for hearing at the Werribee Magistrates’ Court on 12 February 2008, the plaintiff was legally represented. Five of the charges were struck out and the remaining charges were amended to allege a ‘rush’ rather than an ‘attack’ by the dog. The plaintiff pleaded guilty to the amended charges and was fined $500 as an aggregate fine with costs including poundage for the dogs of $4,112.80. At the hearing, the plaintiff was informed that the defendant would seek to destroy the dogs and that he would need to make a submission as to why that course should not be taken. In an affidavit filed in the present proceeding, the plaintiff deposed that Mr Craig Murray, the Co-ordinator, Legislative Services of the defendant, was present at the Werribee Magistrates’ Court. The plaintiff deposed that Mr Murray said to him words to the effect that if requirements were met, there would not be any reason to destroy the dogs. The plaintiff deposed that Mr Murray wanted him to do various things to his residential property with respect to the dogs.
Subsequently, by letter dated 12 February 2008, Mr Murray informed the plaintiff that the council had authority to destroy the dogs and that he was the delegate of the defendant under the Act. Mr Murray invited the plaintiff to make a written submission to him by 19 February 2008, before he made any decision. In the letter, Mr Murray stated that in reaching his decision he would take into account the matters that were before the Werribee Magistrates’ Court on 12 February 2008, together with five statements enclosed in the letter and ‘any submission you may make’. In the letter, Mr Murray also referred to ‘previous complaints’ about the dogs but said he was not taking them into account and that the plaintiff need not concern himself with them.
Subsequently, under cover from a letter by his solicitors dated 19 February 2008 the plaintiff responded to Mr Murray. Among other matters, the plaintiff stated that he was the owner of the dogs and had raised them since they were puppies. To his knowledge, they had never bitten any dog or person and are kept inside with him, housetrained and registered. He said that he would do anything required to ensure that his dogs did not escape the house again. He admitted that a gate on the property was in disrepair and he had arranged for it to be repaired, together with the fence on the property. In addition, the plaintiff informed Mr Murray that he had arranged for a dog run to be built in the backyard and intended to arrange for the dogs to participate in a dog obedience course. He further indicated he would have the dogs de-sexed and arrange for that to occur if they were released to him. The letter also enclosed various testimonials in support of both the plaintiff and the dogs.
Then, on 20 February 2008, the plaintiff met Mr Murray to provide photographs and original documents referred to in the letter of 19 February 2008. He also telephoned Mr Murray a number of times and on each occasion was informed that there was no advice at that stage.
Next, by letter dated 29 February 2008, Mr Murray informed the plaintiff that after taking into consideration the submission (in the letter of 19 February 2008) and the matters raised in the Magistrates’ Court, the plaintiff had not satisfied the Council that the dogs should not be destroyed. Mr Murray stated that ‘the dogs have a propensity to rush at persons and animals in an aggressive manner’. Mr Murray advised in the letter that ‘for these reasons’ the defendant had reached a decision to exercise its power under s 80(4)(b) of the Act to destroy the dogs. The decision was voluntarily stayed pending these proceedings.
Subsequently, Mr Murray filed an affidavit in this proceeding. There were aspects of conversations with the plaintiff which he denied or disputed. However, I need not decide those matters for present purposes. In his affidavit, Mr Murray deposed, among other matters:
In every case, including this one I consider what was put before the court including the summary and anything that was put in mitigation. I may conclude at this stage that the dog or dogs should not be destroyed in which case it is not necessary to go any further. However, if I consider, as I did in this case, that there is a case for destruction I then consider the owner’s material with a view to see whether it causes me to decide whether the dog or dogs should not be destroyed. This is not a situation where I act according to onus but rather simply the order in which I consider the material. (Emphasis added).
Exhibited to the affidavit of Mr Murray was a file note setting out the basis for his decision to destroy the dogs. After setting out the circumstances relied on, the document recorded:
I take into account the P&G for Destruction of Dogs, s 1.6. I have determined that it is in the public interest to destroy the dogs and Mr Tarasinski and his legal representation will be informed in writing on 29 February 2008 as required after which time the dogs will be destroyed. (Emphasis added).
It was not until the filing of the affidavit of Mr Murray in this proceeding that the plaintiff became aware of the guidelines described as City of Wyndham Policy Manual – Policy Guidelines for Destruction of Dogs under the Domestic (Feral and Nuisance) Animals Act 1994.
The guidelines provided under the heading Procedure
1.The Legislative Services Co-ordinator should assess each applicable case for a possible destruction decision; and,
2.If a conditional decision (conditional on a finding of guilt) to destroy a dog is made, the Magistrates’ Court hearing the matter should be informed of council’s intention as a relevant matter on a plea of mitigation in favour of the defendant and to assist the Court in determining the exercise of its own discretion to destroy;
3. Following being found guilty of an offence under the Act in a magistrates Court, the Legislative Services Co-ordinator must inform the owner in writing of the proposed destruction, together with supporting reasons based on Councils [sic] Policy and invite a written submission within 7 days;
4.The Legislative Services Coordinator must consider any written submission received in response;
5.The Legislative Services Coordinator must notify the owner of the decision and the reasons for the decision; and
6.If the decision is to destroy, then the dog is to be destroyed after notifying the owner of the decision.
The guidelines contained a policy statement setting out criteria for the destruction of a dog under the Act. The policy dealt with restricted breeds, dangerous dogs, attacks on humans and in particular, children or vulnerable persons and on animals and further provided as follows:
6. Following being found guilty of an offence under the Act in a magistrates’ court, such other facts and circumstances that it is in the public interest to destroy the dog to protect the public. Providing that there is enough evidence and no defence available under the Act for the dog’s actions.
In a further affidavit, the plaintiff deposed that prior to the filing of the affidavit by the defendant sworn by Mr Murray, he was unaware of the policy guidelines. He further deposed he was not informed or given a copy of the guidelines at any stage. Nor was he informed, he deposed, of the fact that Mr Murray was required by the guidelines to have regard to the ‘public interest’. The plaintiff deposed that he did not know it was a factor which Mr Murray would have regard to in making the decision whether or not to destroy the dogs. He further deposed that he was not told that a criteria in determining whether the dogs should be destroyed was a consideration of whether it is ‘in the public interest to destroy the dog to protect the public’.
By leave, the plaintiff filed an amending originating motion.
The grounds articulated by the plaintiff in the originating motion were:
· At no material time was Mr Murray lawfully delegated by the defendant to make the decision to destroy the dogs pursuant to the Act;
· In reaching the decision to destroy the dogs the defendant acted beyond power in failing to afford procedural fairness, by failing to disclose to the plaintiff that it had a policy and guidelines for the destruction of dogs, that it would have regard to the policy and the matter of ‘public interest’ in making the decision, failing to afford the plaintiff an opportunity to make submissions of the basis of the policy and, also, failing to disclose to the plaintiff the case he was required to meet having regard to the considerations as set out in the policy;
· The defendant acted beyond power by failing to take account of relevant considerations, namely the age, independent disposition of the dogs, the assessment of the plaintiff as a responsible dog owner and the fact that the dogs had not attacked any person or animal previously;
· The defendant acted for an improper purpose in that the decision made by Mr Murray applied the incorrect test in placing the burden of proof on the plaintiff as to why the dogs should not be destroyed;
· The defendant acted beyond power on the basis that there was a reasonable likelihood or apprehension of bias or a lack of impartiality in that Mr Murray was aware of previous complaints made about the dogs, had an interest or was prejudiced in the outcome of the decision, there was a possibility of partiality towards a decision to destroy the dogs and prior to reaching the decision Mr Murray had indicated a particular attitude towards the decision to be reached.
In the originating motion, the plaintiff seeks an order that the question of whether or not the dogs should be destroyed should be remitted for reconsideration by the defendant according to law, such consideration to be undertaken by a person or persons other than Mr Murray.
It was agreed by counsel for the plaintiff that the grounds recited in the originating motion fell into four head grounds as follows:
1. Denial of procedural fairness.
2. Failing to take into account relevant considerations.
3. The application of the incorrect test.
4. Bias or lack of impartiality.
There are two particularly relevant authorities in relation to the Act. The first, Gubbins v Wyndham City Council.[1] There, Hansen J held that the power given by s 80(4)(b) of the Act to order that a dog be destroyed was subject to the rules of natural justice. With respect, I agree with his Honour and his reasons for so deciding.[2] Further, his Honour held that the rules of natural justice required the dog owner in that case be given notice of the issues to be considered by the council or its appeal committee. Where the council appeals committee had based its decision in part on certain matters that constituted a new point without notice to the plaintiff, then there had been a denial of natural justice.[3] Hansen J also held that because a response by the plaintiff to the point raised may have reversed the decision of the council, it was not appropriate in the exercise of the discretion of the Court to refuse to grant the plaintiff relief.[4]
[1](2004) 21 VAR 266.
[2]Ibid [46].
[3]Ibid [76].
[4]Ibid [77].
In Nicholson v Mornington Peninsula Shire Council and Ors[5] Forrest J took a similar approach to the application of natural justice under the Act. In that particular case, his Honour was called upon to consider the way in which the subject council conducted its decision making process to determine whether or not to destroy the particular animal. Forrest J held, and with respect I agree, ‘it would be equally surprising that parliament did not intend to afford fairness to the parties in the present case where a panel is set up specifically to review a declaration made by a ranger.’[6] Forrest J went on to hold that natural justice demanded the affording of a proper hearing to the plaintiff in that case.[7] Whilst Nicholson was a case concerned with other sections of the Act[8] in my view the principle, with respect to the application of natural justice, remains the same for present purposes.
[5][2007] VSC 519.
[6]Ibid [81].
[7]Ibid [86].
[8]Sections 98D, 98E and 98F.
Turning to the heads of grounds relied on by the plaintiff, the first, procedural fairness.
In my view, it is apparent that Mr Murray was obliged to inform the plaintiff of the existence of the council policy and guidelines. Contrasting with the circumstances in Gubbins, where a copy of the council policy was provided to the plaintiff. The matters deposed to by the plaintiff, namely that he was not told by Mr Murray or the defendant that the policy applied nor of the consideration of the criterion of public interest, were not rebutted by the defendant. In my view, therefore, there is a clear denial of natural justice and procedural fairness, as contemplated in Kioa v West.[9] In particular, when Mr Murray wrote to the plaintiff inviting his submission and indicating the matters to be taken into account, there was the omission of consideration of the council policy and the public interest.
[9](1985) 159 CLR 550.
I am satisfied, therefore, that in the circumstances of this matter the defendant denied natural justice and procedural fairness to the plaintiff in the making of the decision. Plainly, the policy was a fundamental document in the process, and one of which the plaintiff ought have been made aware.
It is next convenient to deal with the third head of grounds, namely, the application of the incorrect test. This group of grounds, in effect, alleged an improper purpose on the part of the defendant. The facts relied on were that Mr Murray had already decided to destroy the dogs when he wrote to the plaintiff on 12 February 2008 indicating that he had to decide the matter and invited submissions. Subsequently, when Mr Murray wrote on 29 February 2008, he informed the plaintiff that he had not persuaded him that the dogs should not be destroyed. In effect, the approach of Mr Murray under the Act, was to shift the burden onto the plaintiff as the dog owner. The burden under the Act does not lie on the dog owner. The decision has to be made in accordance with legal principles, including on an even-handed basis. Here, the defendant, through Mr Murray, in the statement of his reasons as to his decision, disclosed that he did not consider the matters he was required to consider at law; see Craig v South Australia.[10]
[10](1995) 184 CLR 163.
It follows that in my view Mr Murray applied the incorrect test when he required the plaintiff to bear the burden of proof to persuade him that the dogs should not be destroyed. So much is disclosed from the reasons.
The fourth head of ground related to bias on the part of Mr Murray in the decision making process. Actual bias was not alleged and properly so. Rather, the argument was put on the basis that Mr Murray demonstrated in correspondence a reasonable possibility of disposition by him towards destruction of the dogs. As Hansen J made clear in Gubbins[11] a municipal council does not have a discretion to destroy the subject animal but is required to form a view. It was argued for the plaintiff that there was a reasonable apprehension of bias because the person who made the decision, namely, Mr Murray, as to whether the dogs should be destroyed or not be destroyed, was the same person who made the decision for destruction of the dogs. In effect, the argument is that Mr Murray made a recommendation to himself and which recommendation he adopted.
[11]Ibid.
In Gubbins,[12] Hansen J set out a careful structure of the Act.[13] In particular, his Honour observed that a council does not have the power to destroy a dog under s 80(4)(b) of the Act until a finding of guilt in the Magistrates’ Court and that a process must be gone through before a court makes that finding.[14] Here the process for the reasons stated already was defective. However, it is not apparent to me that there was ostensible bias on the part of Mr Murray.
[12]Ibid.
[13]Ibid [37] – [40].
[14]Ibid [38].
It follows from my findings with respect to the grounds concerned with procedural fairness and the application of the incorrect test it is unnecessary to consider the other head of grounds relating to irrelevant considerations.
For these reasons, the decision of the defendant should be set aside and the matter remitted for consideration in accordance with law.
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