Townsend v Mayor, Aldermen & Citizens of the City of Glenorchy

[1992] TASSC 93

COURT:                 SUPREME COURT OF TASMANIA

CITATION:            Townsend v Mayor, Aldermen & Citizens of the City of Glenorchy [1992] TASSC 93; B13/1992

PARTIES:  TOWNSEND, Bruce Studley
  v

MAYOR, ALDERMEN & CITIZENS OF THE CITY OF GLENORCHY

FILE NO/S:  LCA 81/992
DELIVERED ON:  30 April 1992
JUDGMENT OF:  Wright J

Judgment Number:  B13/1992
Number of paragraphs:  7

Serial No B13/1992

List "B"

File No LCA 81/992

BRUCE STUDLEY TOWNSEND v THE MAYOR, ALDERMEN & CITIZENS OF THE CITY OF GLENORCHY

REASONS FOR JUDGMENT  WRIGHT J

(Delivered Orally)  30 April 1992

Dog Control Act 1987, ss38(4), 59(1), (3)(g) – Recovery of costs of determinng dangerous dogs.

1. It is not possible, in my opinion, to determine whether his Worship made the order under challenge pursuant to the Dog Control Act 1987, ss38(4) or 59(3)(g). The strongest indication that he made it in purported exercise of powers under s38(4) is to be found, I think, in the comments he made at the top of p280 and which were referred to by Mr Sugden in his reply. There are, I think, clear indications in the transcript that confusion attended this issue throughout the trial. The principal source of this confusion appears to me to have originated in the somewhat tortuous approach adopted by defence counsel and his propensity to deal with actual and potential issues in a somewhat oblique manner. But be that as it may, in my opinion the learned magistrate fell into error in making the orders which he did. Not only had indications been given from the Bench that issues arising under s38 would not be dealt with by him in the course of disposing of the complaint before him, but it also appears to me, that having declined to make findings that the dog in question was, and I quote, "unduly mischievous or dangerous", under s59(1), he was without jurisdiction to make an order for costs of the dog's detention under s59(3)(g). I understand Mr Crotty's argument to the contrary, drawing as it did upon the provisions of s3(4) and (5) and also s33, but I cannot accept that argument for the reasons which I indicated to counsel in the course of our dialogue. Furthermore, I am of the opinion that the learned magistrate was without jurisdiction under s38(4) which provides:

"Where the costs of detaining a dog are borne by the Corporation on behalf of the owner, the costs may be recovered by the Corporation in a court of competent jurisdiction as a debt due to the Corporation by the owner."

1. In my opinion, this provision plainly envisages the institution of separate civil proceedings for debt and that such proceedings should be instituted by appropriate process in an appropriate court. It is clear that no such proceedings have been instituted between the relevant parties at the present time. I am therefore of the view that the orders now under challenge were made without jurisdiction in the circumstances, whether in reliance upon ss.38 or 59. Mr Sugden claims in ground 1 of his Notice of Motion, a denial of natural justice, and although that problem intrudes into the way in which the case developed once the learned magistrate was called on to deal with the further cross–examination of the witness Fassina, it is not the real basis for my upholding the appeal.

1. There is a second ground however which alleges an absence of evidence capable of justifying the learned magistrate‘s assessment of the quantum of costs payable by the applicant. I think this point is well taken. Despite the discussion between the learned magistrate and counsel as to the mathematical accuracy of certain calculations, I do not read the transcript as indicating, nor do I understand it to be claimed, that the document containing those calculations was received into evidence by consent, or that the quantum of costs was formally agreed by defence counsel. In short, there was an absence of evidence as to that important issue, and it is plain that it was an issue as to which there was some dispute. I take the view that the appeal is entitled to succeed effectively on both grounds, but certainly on ground 2 as drawn.

1. I have considered what is the appropriate course to take in view of the conclusions I have reached. In my opinion it is inappropriate to remit the matter to the learned magistrate; he has already indicated that he is not inclined to make such findings as would justify an order under s59(3)(g). He has never been appropriately seized of the issues in a way which would enable him to make an order under s38(4). Consequently, I think that the appropriate order is that the motion to review be allowed, and that so much of his Worship’s orders as relate to the costs of detaining the dog and the recovery of those costs, be quashed. If the Council wishes to recover those costs it may of course proceed appropriately under s38(4), but that is a matter for the consideration of the Council in due course, I think.

1. The motion to review is allowed and I make the consequential order that I have indicated as to the costs of detaining the dog.

1. I order that the costs of the application for security for costs and also the costs of the motion to review be taxed and paid by the respondent.

1. I grant a certificate to the respondent under the provisions of the Appeal Costs Fund Act, s8 in respect of the motion to review. I make it clear that that does not include the application for security for costs.