Tarasinski v Wyndham City Council - [2009] VSC 109

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…

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: [2009] VSC 109
Decision Date: 27 March 2009

CaseChat Overview and Summary

The applicant in this case, Tarasinski, sought judicial review of a decision made by Wyndham City Council under the Domestic (Feral and Nuisance) Animals Act 1994 to destroy a dog that was seized by the council. The council's decision followed an incident where the dog was involved in an altercation with livestock, leading to the owner pleading guilty to the offence of dog 'rushing'. The crux of the matter was whether the council had afforded procedural fairness to the dog owner during the decision-making process.

The legal issues before the court centred on whether the council had complied with the requirements of procedural fairness when it decided to destroy the dog. The applicant argued that the council failed to provide an opportunity for the owner to be heard and to address the evidence against them. The relevant sections of the Domestic (Feral and Nuisance) Animals Act 1994, specifically sections 29(4) and 80(4)(b), were at the heart of the dispute, as they outline the procedural fairness requirements when decisions are made regarding the destruction of animals.

The court examined the council's decision-making process and found that it did not provide the owner with adequate procedural fairness. The court noted that the owner had not been given an opportunity to present evidence or arguments against the destruction of the dog. Furthermore, the court held that the statutory provisions required the council to ensure that the owner was aware of the council’s decision and the reasons for it. The court concluded that the council’s failure to provide these elements of procedural fairness rendered the decision to destroy the dog invalid. Consequently, the court quashed the decision and remitted the matter back to the council for reconsideration in accordance with the principles of procedural fairness.

The final orders included the quashing of the council’s decision to destroy the dog and the direction that the council reconsider the matter, ensuring that procedural fairness was afforded to the dog owner. The court emphasised the importance of following statutory mandates regarding procedural fairness to uphold the rule of law and protect the rights of individuals involved in such administrative decisions.

Orders