Van Der Berg v City of Perth - [2025] WASC 197

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   VAN DER BERG -v- CITY OF PERTH [2025] WASC 197
CORAM:   GETHING J
HEARD:   12 - 13 MAY 2025
DELIVERED          :   22 MAY 2025
FILE NO/S:   CIV 1479 of 2025
BETWEEN:   ANNA MIA VAN DER BERG
Applicant
AND
CITY OF PERTH
Respondent

Catchwords:

Judicial review - Decision by a City of Perth Ranger to seize and detain a dog - Turns on own facts

Legislation:

Dog Act 1976 (WA) s 11, s 29
Dog Regulations 2013 (WA) reg 14, Form 1, Form 6

Result:

Application for judicial review dismissed

Category: B

Representation:

Counsel:

Applicant	:	In person
Respondent	:	Mr T L Beckett

Solicitors:

Applicant	:	In person
Respondent	:	McLeods Lawyers

Case(s) referred to in decision(s):

Attorney-General v Morrison [No 2] [2022] WASC 295
Australian Securities Commission v Deloitte Touche Tohmatsu (1996) 138 ALR 655
Fisher v Ellerton [2000] WASCA 264
Fisher v Ellerton [2001] WASCA 315
Forrest & Forrest Pty Ltd v The Honourable William Richard Marmion, Minister for Mines and Petroleum [2017] WASCA 153; (2017) 51 WAR 425
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123
Medical Board of Australia v Arukalaivanan [2023] WASCA 117
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Mohammadi v Bethune [2018] WASCA 98
Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65
Neil v Nott [1994] HCA 23; (1994) 68 ALJR 509; (1994) 121 ALR 148
Nobarani v Mariconte [2018] HCA 36
Reid v City of Gosnells [2023] WASC 48
Sethi v Bhavsar [2020] WASCA 52
Silkchime Pty Ltd v Valuer-General [2023] WASCA 114
Smart v Prisoner Review Board (WA) [2012] WASC 48
Waite v Hennah [2021] WASCA 69
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
Woodley v Woodley [2018] WASCA 149
Zaghloul v Bayly [2021] WASCA 125
Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40

GETHING J:

Introduction

On the morning of 4 May 2025 a dog by the name of Ollie was seized by rangers from the City of Perth (City). Ollie's owner is Anna van der Berg. Ms van der Berg asserts that the seizure and subsequent detention of Ollie was unlawful.
By application dated 7 May 2025, Ms van der Berg sought judicial review of the decision of the City to seize and detain Ollie. She filed an amended application on 8 May 2025, which is the one before me for determination (Application). Ms van der Berg asserts that Ollie could only have been lawfully seized pursuant to a warrant issued under Dog Act 1976 (WA) (Dog Act) s 29(5a). In the Application, her primary ground is that judicial review by way of prerogative relief is justified as:
The seizure and detention of the dog named Ollie, microchip number xxx is void ab initio, as it was and is unlawful.
She goes on to seek an order for the immediate release of Ollie, an order that there be no further attempts to seize him, damages and costs.
The Application was listed before me on an urgent basis on the afternoon of 8 May 2025. By that time the City had filed an appearance. The City asserts that the seizure and subsequent detention of Ollie was not unlawful. Ms van der Berg sought an interim order for the release of Ollie. I declined to make this order on the basis that to do so would prejudge the outcome of the Application without having given the City the opportunity to file evidence and submissions in response. Instead, I ordered an expedited trial of the Application on Monday 12 May 2025, which ended up being heard on 13 May 2025.
At the trial, Ms van der Berg read three affidavits, sworn by her on 7 May 2025 (7 May Affidavit), 8 May 2025 (8 May Affidavit) and 12 May 2025 (12 May Affidavit). She also filed submissions dated 8 May 2025 and 12 May 2025. She gave oral evidence and was cross-examined.
The City read an affidavit sworn by Travis Carney on 9 May 2025 (Carney Affidavit). It also filed detailed submissions on the same day (City Submissions). At the hearing Mr Carney gave evidence and was cross-examined. In addition to the documents attached to the Carney Affidavit, counsel for the City tendered through Mr Carney a USB containing audio-visual footage from his body worn camera of the incident involving Ms van der Berg (BWC Footage).[1]
For the reasons which I gave on 13 May 2025 and in this decision, I created a mechanism by which Ms van der Berg could secure the release of Ollie by giving an undertaking to the court, but otherwise dismissed the Application.

Issues arising for determination
[1] Exhibit 1.

I accept that a decision (or purported decision) of an authorised officer of the City, being a statutory body,[2] exercising a statutory power may the subject of judicial review proceedings in the Supreme Court.[3] Counsel for the City did not suggest otherwise.
[2] City of Perth Act 2016 (WA) s 6(1).
[3] See for example: Reid v City of Gosnells [2023] WASC 48 (Reid).
The principles relating to a judicial review, as opposed to an appeal on the merits, were conveniently summarised by Archer J in Reid. This was in the context of judicial review of a planning decision of a local government, but the principles apply equally to the present case:[4]
[4] Reid [25] - [31] (Archer J) (references omitted). See also: Forrest & Forrest Pty Ltd v The Honourable William Richard Marmion, Minister for Mines and Petroleum [2017] WASCA 153; (2017) 51 WAR 425 [86] ‑ [88] (reasons of the court) (Forrest).
In dealing with the application for judicial review, the court's jurisdiction does not extend to engaging in a review of the merits of the decision. The court's jurisdiction is confined to determining whether the decision-maker made a jurisdictional error in any of the challenged decisions…
In Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 [163]… Hayne J explained:
There is a jurisdictional error if the decision maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do. By contrast, incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction. (This is sometimes described as authority to go wrong, that is, to decide matters within jurisdiction incorrectly.) The former kind of error concerns departures from limits upon the exercise of power. The latter does not.
As was explained by the High Court in Hossain v Minister for Immigration and Border Protection… [2018] HCA 34; (2018) 264 CLR 123] determining the limits of a decision‑maker's functions and powers is a question of statutory construction.
First, it is necessary to identify 'the preconditions which the statute requires to exist for the decision‑maker to embark on the decision‑making process'. It is also necessary to identify the conditions which the statute requires to be observed in order for the decision‑maker to make a decision of that kind. Identifying the preconditions and conditions is a question of statutory construction…
It is ordinarily an implied condition that the decision‑maker proceed by reference to 'correct legal principles, correctly applied'….It is also ordinarily an implied condition that the decision‑maker comply with the standard of legal reasonableness…
Second, if the decision‑maker has failed to comply with a precondition or a condition, it is necessary to determine whether the extent of the non‑compliance resulted in the purported decision 'lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision‑maker purported to make it'. If so, the purported decision will involve 'jurisdictional error'; that is, the purported decision will have been made outside jurisdiction. Determining the extent of non‑compliance which will have this result is also a question of statutory construction…
Ordinarily, statutes conferring decision-making authority are interpreted as incorporating a threshold of materiality in the event of non‑compliance…To succeed in such a case, therefore, an applicant needs to prove that an error was material. That is, an applicant needs to prove that there is a realistic possibility that, if the decision-maker had not erred, a different decision could have been made…
The Application in full is as follows:
The applicant applies for judicial review of the above decision or conduct and-
a writ of certiorari;
a writ of mandamus;
a writ of prohibition;
This order (being an order which would have the same effect as a remedy that could be provided by means of one or more of the above writs) -
l)The seizure and detention of the dog named Ollie, microchip number xxxx is void ab initio, as it was and is unlawful.
2)The dog shitzu or maltese cross, white and grey in colour, male, microchip number xxxx, by the name of "Ollie" is to be immediately released to Ms Anna van der Berg without any fees, charges or conditions. Ollie is to be immediately released to Ms van der Berg regardless of whether this Order is brought to the relevant persons attention before or after opening times of the City of South Perth Animal Facility. This Order applies to relevant staff/officers at the City of Perth and City of South Perth.
3)There shall not be any further attempts to seize the dog named Ollie microchip number xxxx.
4)By close of business today there shall be the amount of $300,000 in damages, transferred into the Applicant's bank account BSB xxx account number xxx by the City of Perth.
5)By close of business today there shall be the amount of $3,330 in costs transferred into the Applicant's bank account BSB xxx account number xxx by the City of Perth.
The grounds on which the seizure and continuing detention are said to be unlawful are set out in the Application in the following terms:
The grounds for the above application are these -
1.The City of Perth Rangers who seized the Applicant's dog Ollie, failed to produce when asked to do so by the Applicant, proof of designation or authorisation by the CEO of the City of Perth to seize dogs, as required by sec 9B(4) of the Dog Act 1976 thereby making the seizure and detention unlawful.
2.The Notice of Seizure and Detention of a Dog did not indicate which section of the Dog Act 1976 the dog Ollie was being seized under, thereby making the seizure and detention notice defective and the seizure and detention unlawful.
3.A warrant from a Justice of the Peace was required to seize the dog Ollie, (microchip number xxxx) pursuant to sec 29(5a) of the Dog Act 1976, as the alleged attack did not take place on the day the dog was seized and detained, but rather on the following day (4^th May 2025). No warrant was obtained or produced. The seizure of Ollie (microchip number xxxx) could not have been effected lawfully under sec 29(3)(d) without a warrant, as this requires a ranger to be present at the time of the attack or soon after. This made the seizure of Ollie unlawful, and also his ongoing detention unlawful.
At the hearing, Ms van der Berg added a further aspect to ground of appeal 1. This was that Mr Carney, the officer of the City who seized Ollie, was not properly authorised to seize him.
Ms van der Berg also added a further aspect to ground of appeal 2. This was that the Notice of Seizure and Detention of a Dog (Notice) which she received upon Ollie's seizure was not in compliance with the prescribed form being Dog Regulations 2013 (WA) (Dog Regs) Form 6. She referred to this defect as another instance of illegality in the seizure of Ollie.
At the hearing the factual issues were narrowed. Ms van der Berg confirmed that she only challenged the validity of the seizure pursuant to Dog Act s 29(3)(a) and (d) on the bases identified. If the seizure could be made pursuant to those paragraphs, she does not assert that the seizure was not justified or not reasonable.[5] The effect is that if the seizure and initial detention is not rendered unlawful by the specific matters identified in the grounds set out at [10] to [12], the seizure and initial detention of Ollie was lawful pursuant to s 29(3)(a) and (d).
[5] Transcript 13.5.25, pages 61 - 65.
The net result is that the following issues arise for determination:
·Was a warrant required to seized Ollie pursuant to Dog Act s 29(5a)?
·Was Mr Carney properly authorised?
·Did the rangers who seized Ollie comply with Dog Act s 9B(4) and, if not, did this render the seizure unlawful?
·Was the Notice in the form required by Dog Regs Form 6 and, if not, did this render the seizure unlawful?
·Did the Notice indicate under which section of the Dog Act Ollie was seized and, if not, did this render the seizure unlawful?
·Is the continuing detention of Ollie unlawful?
·What final orders are appropriate?
These issues are dealt with in Parts 4 to 10. Before dealing with them, in Part 3 I set out the background facts.
In relation to the first issue in [14], this was dealt with by way of preliminary issue on the morning of 13 May 2025. I gave oral reasons, which I have incorporated into Part 4.
At the conclusion of the trial, I told Ms van der Berg that I found against her on each of the second, third, fourth and fifth issues, but, giving the timing considerations, I would publish reasons later. My reasons are set out in Parts 5 through 8.
I then heard some further submissions on the issue of detention. My reasons in relation to continuing detention being lawful are set out in Part 9. As mentioned, I created a mechanism by which Ms van der Berg could secure the release of Ollie by giving an undertaking to the court. This is dealt with in Part 10.

In conducting the trial and determining the issues, I was and am mindful that Ms van der Berg is a litigant in person (although she did tell me that she had been a lawyer in the past). As such, she is entitled to some leniency in relation to compliance with the court rules.[6] The court is required to approach the documents in which she articulates her case with some flexibility.[7] The court needs to be astute to ensure that, in a poorly expressed or unstructured document in which she sets out her position, there is no viable case which, with appropriate amendment or permissible assistance from the court, could be put into proper form.[8] A 'frequent consequence of self‑representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy'.[9]
[6] Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10] (judgment of the court).
[7] Zaghloul v Bayly [2021] WASCA 125 [82] (judgment of the court); Wentworth v Rogers(No 5) (1986) 6 NSWLR 534, 536 ‑ 537 (Kirby P with whom Hope & Samuels JJA agreed); Smart v Prisoner Review Board (WA) [2012] WASC 48 [10] (Pritchard J).
[8] Sethi v Bhavsar [2020] WASCA 52 (Sethi) [27] (reasons of the court).
[9]Neil v Nott [1994] HCA 23 [5]; (1994) 68 ALJR 509, 510; (1994) 121 ALR 148, 150 (judgment of the court); Sethi [27].
One 'abiding difficulty' faced by the court is 'the tension between the duty of a … judge to ensure a fair and just trial and the requirement that the court maintain a position of neutrality and impartiality as between the parties'.[10] The court also needs to ensure that any latitude given to one party as a litigant in person does not deprive the other of their right to procedural fairness and a fair hearing.[11] The balance is ordinarily struck by limiting the assistance given to a litigant in person to that which is necessary to overcome, so far as is reasonably practicable, the procedural disadvantages a litigant in person faces by reason of not being legally trained.[12]
[10] Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40 (Zerjavic) [74] (judgment of the court).
[11] Nobarani v Mariconte [2018] HCA 36[47] (Kiefel CJ, Gageler, Nettle, Gordon and Edelman JJ); Woodley v Woodley [2018] WASCA 149 [76] (judgment of the court); Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65 [51] (judgment of the court).
[12] Zerjavic [74] - [75].

Background facts

The facts relevant to the determination of the Application are largely not in dispute. They are evident from the Carney Affidavit and the BWC Footage. The evidence in the three affidavits sworn by Ms van der Berg is largely consistent with this evidence, though adds information from her perspective. Where this is a significant factual issue, I have either specifically addressed it or identified where I address it later in these reasons.
I find the following facts proven on the balance of probabilities.
Mr Carney is employed as a Safe City Ranger at the City. He has been employed by the City since 4 December 2024.
Mr Carney's evidence is that he is an authorised person for the purposes of the Dog Act. This is disputed by Ms van der Berg. I address this issue in Part 5.
On the afternoon of 2 May 2025, Mr Carney was patrolling the city in the course of his employment duties. During that time, he was approached by two members of the public, who advised him of an alleged dog attack on their daughter which occurred at Forrest Place earlier that day (Complainants). He received photographs from the Complainants of the injuries sustained by their daughter on 2 May 2025. Copies of these photographs are attached to the Carney Affidavit as Attachment 4. The photographs show a single cut of about 1 cm in length. It appears to be on the outside thigh.
Mr Carney then contacted City Watch and queried whether there were cameras in a position that may have recorded footage of the reported incident. After being advised that there were cameras in the area, he submitted a footage request.
On 4 May 2025, Mr Carney received and reviewed the footage of the incident area, Forrest Place, and adjacent bus stand (CCTV Footage). Mr Carney's evidence was that the CCTV Footage showed the dog with Ms van der Berg (now identified as Ollie) lunging approximately over 15 times at various members of the public, including the daughter of the Complainants. After the incident, Ms van der Berg and her dog are seen boarding a bus at bus stand number 26768, William Street, Perth.
The City sought to tender a USB containing the CCTV footage. Ms van der Berg objected on the ground of relevance. Having clarified the scope of the Application identified at [13] I upheld this objection. This was because there was no challenge to the decision of the City to seize and detain Ollie on the ground that there was no factual basis for it or that it was not justified or not reasonable.
On 4 May 2025, at approximately 9:30 am, Mr Carney attended the Perth Bus Port, along with two of his colleagues, to enquire about obtaining bus footage or knowledge of where the Ms van der Berg and her dog departed the bus they boarded, as shown in the CCTV footage.
Mr Carney then returned to the incident area near Forrest Place in efforts to gather further information regarding Ms van der Berg's frequency in the area. He was patrolling the malls in the incident area and observed Ms van der Berg walking along Hay Street Mall near the traffic lights on William Street while pushing her dog in a pram. He followed Ms van der Berg into the Enex building on Hay Street in order to obtain her details in accordance with Dog Act s 43(a).
What occurred from then on is captured in the BWC Footage. The BWC Footage has both vision and sound. It lasts for just under 50 minutes.
Mr Carney, and the two other rangers with him, were dressed the same, being tan cargo pants, dark blue shirt, high visibility fluorescent vest and a dark blue cap with a City logo at the front. Each vest had the words 'City of Perth' on the front in large letters, going downwards from the sternum area. Mr Carney's body worn camera was in the centre of his vest. Mr Carney was wearing his Certificate of Authority and Identity Card on a lanyard around my neck. The others were not.

Mr Carney also had a velcro patch on his left breast with the words 'Safe City Ranger' on it. His colleagues did not. In cross‑examination, Ms van der Berg asked Mr Carney to remove the velcro patch, which he did. The suggestion here is that Mr Carney was not in fact wearing the velcro patch on the day he interacted with Ms van der Berg. His evidence was that he was wearing it. At a later point in the BWC Footage, Mr Carney pointed out that his reflection can be seen in a glass advertising panel on the side of a bus stop. It is clearly visible that he is wearing the patch.[13] I find that at all times while Mr Carney was engaging with Ms van der Berg he was wearing his patch.
[13] Transcript 13.5.25, page 122; Exhibit 1, at 11.46 minutes into the footage.
I also find that at all times, it should have been abundantly clear to Ms van der Berg that she was engaging with rangers from the City.
The three rangers caught up with Ms van der Berg in the Enex shopping mall, which cuts between Hay Street Mall and St Georges Terrace. Ms van der Berg had with her a dog pram, with Ollie inside.
It appears that the three rangers identified themselves as rangers but this is not entirely clear from the footage due to muffled audio. Ms van der Berg walked away from the rangers and asked them not to follow her. The rangers walked with and behind her, following her into Hay Street Mall, where she began walking in a westerly direction. The rangers requested that Ms van der Berg stop and provide her personal details, warning her that police may be needed to detain Ms van der Berg to assist in obtaining her personal details.
Ms van der Berg turned left at the William Street junction and walked in a southerly direction, then turned left onto St Georges Terrace and walked in an easterly direction. The rangers continued to follow. One asked if they could microchip her dog to see if it is registered with the City. Ms van der Berg refused and continued walking.
Around five minutes after the engagement began, Ms van der Berg ran towards a bus that was pulling up. The rangers ran and arrived at the bus at the same time. Ms van der Berg lifted the pram containing Ollie and entered the bus. The rangers instructed the bus driver to hold the bus and called the police and Transperth Security for assistance. There was then a stand-off: Ms van der Berg and her dog inside the stationary bus refusing to get off and the rangers outside, waiting for further assistance. At times, one or other of the rangers entered the bus and spoke to Ms van der Berg attempting to persuade her to get off the bus.
The stand-off lasted around 10 minutes and ended when Ms van der Berg exited the bus with the pram and walked in an easterly direction on St Georges Terrace. By that time two police officers and another ranger had arrived. The rangers and police officers followed her, walking initially, then running to catch up with her, at which point she stopped.
At that point a conversation took place. Several times, Ms van der Berg said that the rangers could not seize Ollie without a court order. At one point, Ms van der Berg asked what power the rangers were relying on. One of them, not Mr Carney, read out parts of Dog Act s 29(3) from his mobile phone. The rangers reiterated that they required her details. In the end, she handed her driver's licence to a police officer, who then handed it to Mr Carney.
A number of times over the next 20 minutes, the rangers advised Ms van der Berg that they will be seizing the dog and that they are authorised under the Dog Act to size a dog under suspicion of an incident. They notified her that she could contest the seizure with the State Administrative Tribunal. Abusive language was used by Ms van der Berg towards the rangers and police officers.
The BWC Footage shows Mr Carney completing the Notice. There is a factual dispute about this, which I deal with in Part 8.
At about 40 minutes into the engagement, Mr Carney served Ms van der Berg with the Notice. The rangers explained they would be taking the dog and where the dog was to be taken. Ms van der Berg told them about Ollie's needs and expressed her concern at care he would be provided with. In the end, Ms van der Berg then walked the pram with the dog to the ranger's vehicle, where she loaded it into the enclosed tray. The rangers then closed the back door of the enclosed tray.
Having watched the BWC Footage (in the cross-examination of Mr Carney), it is clearly evident that throughout the engagement Ms van der Berg was visibly upset and frustrated.
Mr Carney and a colleague then transported Ollie to the City's animal care facility in South Perth. He then departed the animal care facility to continue the investigation of the incident.
On 6 May 2025, Mr Carney attempted to call Ms van der Berg at 8.49 am, but she did not answer. He called her a second time at 9.04 am and she answered the phone. He requested that they meet so that he could provide her with further paperwork regarding her dog. Ms van der Berg refused to organise a time or place to meet and requested that he email the paperwork to her, giving an email address.
Mr Carney then prepared the dangerous dog declaration to be issued to Ms van der Berg. A copy of the dangerous dog declaration dated 6 May 2025 was attached to the Carney Affidavit.
Mr Carney's evidence is that in accordance with a dangerous dog declaration, the City inspects the property at which the dangerous dog is being kept to ensure compliance with the Dog Act and the dangerous dog declaration prior to the release of the dangerous dog to its registered owner. He emailed a copy of the dangerous dog declaration to the email address provided by Ms van der Berg at 9.38 am on 6 May 2025.
Mr Carney goes on to say that the City continued to liaise with Ms van der Berg in relation to the dangerous dog declaration as there was confusion as to the microchip information relating to her dog. Further information was subsequently supplied by Ms van der Berg at 4.05 pm on 6 May 2025 confirming ownership of the dog.
Mr Carney concludes by saying that the City is continuing to investigate the incidents involving Ms van der Berg and her dog which occurred on 2 May 2025.
In the course of closing submissions, counsel for the City advised the court that it no longer needed to detain Ollie for the purposes of an ongoing investigation.

Was a warrant required to seize Ollie pursuant to Dog Act s 29(5a)?

As mentioned, I addressed this issue in reasons delivered extemporaneously on 13 May 2025 by way of a preliminary issue of law. The reasons which follow in this Part are based on the transcript of the hearing, which I have edited to correct grammar and infelicities of language and to include full references to relevant evidence and authorities.[14]
[14] Transcript 13.5.25, pages 75 - 82.
In ground of appeal 3 (which I have quoted at [10]), Ms van Der Berg asserts that a warrant from a Justice of the Peace was required to seize Ollie pursuant to Dog Act s 29(5a). That paragraph, along with the seizure power in the following paragraph, is as follows:
(5a)If he is satisfied on the balance of probabilities that an attack by a dog (the attack dog) has or may have caused injury or damage, or that a dangerous dog (restricted breed) has given birth to one or more pups, a Justice of the Peace may issue a warrant authorising any authorised person to seize the attack dog, or each pup, as is relevant to the case, and -
(a)if the attack dog is a dangerous dog, or in the case of a pup of a dangerous dog (restricted breed), detain and deal with it in accordance with section 33G; or
(b)otherwise, detain it pending the determination of an application under section 39.
(5b)Where a warrant under subsection (5a) is issued in respect of a dog an authorised person - (a) may seize and detain the dog, and if section 33G(2) applies shall give the notice required by that subsection; and (b) may enter any premises if he has reasonable grounds to believe that it is necessary to do so for the purpose of seizing the dog.
The City of Perth asserts that Ollie was seized pursuant to Dog Act s 29(3)(a) and (d) which, in context, provide:
(3)If it appears to an authorised person that -
(a)an attack by a dog has occurred; or
(b)an attack by a dog is likely to occur; or
(ca)a dog is in a place in contravention of section 31, 32 or 33A; or
(cb)an offence against section 26(4) or 27(2) is being committed in respect of a dog; or
(cc)an offence against Division 2 is being committed in respect of a dog; or
(c)a dog is a dangerous dog -
(i)in relation to which moneys are due to the local government in respect of a charge determined under section 33M; or
(ii)which is not registered as required under section 7,
the authorised person may -
(d)seize and detain the dog; and
(e)if he is in pursuit of the dog for the purpose of seizing it and he has reasonable grounds to believe that it is necessary to do so for that purpose, enter any premises other than a dwelling unless section 33G(1) applies
So, in this case, for the power to seize and detain in Dog Act s 29(3)(a) and (d) to be enlivened, the City of Perth must establish that it appeared to an authorised person that an attack by a dog has occurred.
Ms van der Berg relied on what she described as the common law of seizure along with various international instruments. In my view, none of these principles have any application to the present case. Rather, as set out by the High Court in Hossain v Minister for Immigration and Border Protection, determining the limits of a decision-maker's functions and powers is a question of statutory construction.[15]
[15] Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 [23], [27] (Kiefel CJ, Gageler and Keane JJ).
The task of construing Dog Act s 29 'begins and ends with the statutory text, [though] throughout the process the text is construed in its context'.[16] So it is necessary to consider the text, context and purpose of s 29 and determine the construction that, according to the established rules of interpretation, serves the relevant statutory purpose. In doing so, a construction that would promote the purpose or object underlying s 29 is to be preferred to a construction that would not promote that purpose or object.[17]
[16] Mohammadi v Bethune [2018] WASCA 98 [31] (Judgment of the court); Waite v Hennah[2021] WASCA 69 [84] (judgment of the court) (Waite).
[17] Waite [84].
Ms van der Berg contends that the language of Dog Act s 29(3), in particular the use of the word 'appears', connotes a requirement of contemporaneity and proximity. More specifically, she asserts that the power in s 29(3)(a) and (d) requires the seizure to occur on the same day on which the alleged attack occurred. She also asserts that the power in s 29(3)(a) and (d) requires a ranger to be present at the time of the attack or soon after. In coming to that conclusion, she invites the court to place weight on the language of s 29(3), which she says connotes the required contemporaneity and proximity. The word 'appears' is asserted to have, in effect, a literal meaning of it must be seen by the authorised person. In this sense it must appear to an authorised person that an attack by a dog has occurred or, for example, an attack by a dog is likely to occur.
The City, on the other hand, invites the court to find that the language, in particular the word 'appear', does not import any requirement of contemporaneity or proximity. The word 'appear' is not used in a literal sense, rather, it is a commonly used device for conveying power to a decision-maker. And in that regard, counsel referred to the decision in Australian Securities Commission v Deloitte Touche Tohmatsu, where the Full Court of the Federal Court construed a similar phrase, 'it appears'; in the context of Australian Securities and Investments Commission Act 1989 (C'th) s 50.[18] The theme that is drawn from the various authorities considered by the Full Court in that case is that the word 'appears' requires there to be at least some factual basis for the decision-maker to form the requisite opinion.
[18] Australian Securities Commission v Deloitte Touche Tohmatsu (1996) 138 ALR 655, 679 - 691 (Beaumont, Drummond and Sundberg JJ) (Deloitte).
Counsel for the City also referred the court to the decision in Fisher v Ellerton.[19] That decision was an appeal from a decision of a magistrate convicting the appellant and his wife of obstructing an authorised officer, a Shire ranger, whilst exercising his powers or carrying out his duties. Earlier in the afternoon of the same day on which the seizure occurred, the next door neighbour of the appellant was attacked by four dogs belonging to the appellant. She gave evidence that four dogs came out of the appellant's house and that she was bitten on the legs by one of them whilst the others snapped and barked around her ankles. A complaint was made to the Shire. A ranger, Mr Scotland, attended the victim's house to take a statement. Prior to doing so, the ranger had obtained a warrant pursuant to Dog Act s 29(5)(a). Whilst the ranger was at the victim's house, the appellant arrived and started to abuse the ranger. The ranger called the police for assistance. The ranger ultimately seized the dogs whilst out the front of the appellant's house. The appellant and his wife were charged with obstruction offences and convicted after trial. The convictions were not disturbed on appeal.
[19] Fisher v Ellerton [2000] WASCA 264 (Fisher).
In determining the appeal, Scott J had to consider whether the seizure of the dogs was lawful. His Honour made the following observations of the powers in Dog Act s 29(3) and (5a):[20]
It is apparent from the statutory scheme that there are two separate powers vested in an authorised person under the Act. The first, is the power contained in s 29(3), which is the statutory authority to seize and detain a dog, or, if the authorised person is in pursuit of the dog, there is statutory power to enter any premises other than a building or part of a building that is used for residential purposes. Those powers are powers granted by statute to the authorised person.
In addition to the statutory powers, an authorised person may obtain a warrant which, if granted, authorises that person under s 29(5b)(b) to enter any premises if he has reasonable grounds to believe that it is necessary to do so for the purpose of seizing the dog.
[20] Fisher [19] - [20] (Scott J).
His Honour held that the seizure of the dogs was lawful pursuant to the Dog Act. Obtaining the warrant was prudent, but, in the end, not required:[21]
In my opinion, the effect of obtaining a warrant, as obtained in the present case, was to enable Scotland to enter residential premises, including the appellant's residential premises, if necessary, for the purpose of seizing the dog or dogs that he was then pursuing. The statutory power contained in s 29(3)(d) and (e) did not authorise Scotland to enter any building or part of a building that was used for residential purposes. The inference is available that it was apparent to Scotland that it may have been necessary for him to enter a building or part of a building used for residential purposes to capture the dogs, and so a warrant was obtained to extend his powers under the provisions of s 29(5b)(b) to give him authority to go into a building or part of a building used for residential purposes if necessary for that purpose.
As the events transpired, in my opinion, it was not necessary for Scotland to exercise his powers under the warrant as ultimately the dog that he was pursuing was delivered up to him. In addition, the events which transpired surrounding the seizure of all of the four dogs occurred on the driveway of the premises at 1A Wylie Court, so that it was not necessary for him to exercise the powers granted to him under the warrant for the purpose of seizing any of the dogs concerned.
…
In my opinion it follows from that conclusion that the grounds of appeal directed towards the validity of the warrant have no bearing on this case. Scotland was not acting pursuant to the warrant when he seized the dogs and did not require the warrant to do so. It was a matter of prudence and a sensible precaution to obtain a warrant before attempting to effect seizure of the dogs because it may have been necessary for him to enter a building or part of a building used for residential purposes in order to do so. His statutory power under s 29(3)(d) and (e) would not have been authority for him to enter residential premises for that purpose. In my view a lawful warrant would have empowered him to do so had that course been necessary. As it turned out, it was not.
[21] Fisher [21], [22], [25].
The decision of Scott J was confirmed on appeal, though on slightly different grounds which are not relevant for present purposes.[22]
[22] Fisher v Ellerton [2001] WASCA 315.
For present purposes, what is critical is that the ranger was lawfully able to seize the dogs pursuant to Dog Act s 29(3) notwithstanding that he was not physically present when the attack is said to have occurred.
In my view, there are no words in Dog Act s 29(3)(a) or (d) which require the seizure to occur on the same day as the alleged attack. To interpret those paragraphs to require the seizure to occur on the same day on which the alleged attack occurred would, in effect, require the court to insert additional words into the text of the section. That is not a permissible exercise of statutory construction. In my view, there is no requirement in s 29(3)(a) or (d) for the seizure to occur on the same day on which the alleged attack occurred.
Likewise, in my view, there is no basis in the text of Dog Act s 29(3)(a) or (d) requiring the ranger to be present at the time of the attack or soon after. The paragraph does not prescribe how it must appear to the authorised person that an attack has occurred. The Macquarie Dictionary relevantly defines the word 'appear' as 'to have an appearance; seem; look'.[23] It does not connote how the appearance is to be formed. To interpret s 29(3)(a) and (d) to require the authorised person to be physically present when the attack is said to have occurred, or soon after, would be, in effect, to insert additional words into the text of the section. Again, that is not a permissible exercise of statutory construction.
[23] Macquarie Dictionary (Online Version).
Rather, in my view, the words 'it appears' is a similar device to that considered by the court in Deloitte.[24] The words require the authorised person to have at least some factual basis to come to the decision that one of the instances set out at Dog Act s 29(3) has occurred.
[24] Deloitte (679 – 691).
For these reasons, in my view, as a matter of law, an authorised person is able to seize and detain a dog pursuant to Dog Act s 29(a) and (d), notwithstanding that:
(a)the seizure does not occur on the same day on which the alleged attack occurred; and
(b)the authorised person was not present at the time of the attack or soon after.
It follows that in this case, the City did not require a warrant from a Justice of the Peace pursuant to Dog Act s 29(5a) to seize and detain Ollie. Rather, it was open to Mr Carney as an authorised person to use the power in s 29(3)(a) and (d) to seize and detain Ollie.

Was Mr Carney properly authorised?

A dog may only be seized pursuant to Dog Act s 29(3) by an 'authorised person'. The term 'authorised person', is defined in s 3 to mean, so far as is relevant, 'a person appointed under the Local Government Act 1995 section 9.10(2) to be an authorised person for the purposes of this Act'.
Dog Act s 11A then provides:
11A. Authorised persons
The chief executive officer of a local government must, under the Local Government Act 1995 section 9.10(2), appoint persons to be authorised persons for the purposes of this Act.

Dog Act s 10AA provides:
10AA. Delegation of local government powers and duties
(1)A local government may, by absolute majority as defined in the Local Government Act 1995 section 1.4, delegate to its chief executive officer any power or duty of the local government under another provision of this Act.
(2)The delegation must be in writing.
(3)The delegation may expressly authorise the delegate to further delegate the power or duty.
(4)A local government's chief executive officer who is exercising or performing a power or duty that has been delegated as authorised under this section, is to be taken to do so in accordance with the terms of the delegation unless the contrary is shown.
(5)Nothing in this section limits the ability of a local government's chief executive officer to perform a function through an officer or agent.
The City submits that Mr Carney was an authorised person at the time of the seizure of Ollie. This is because:
(a)Mr Carney holds a Certificate of Authority and Identity Card, by which he is authorised by the General Manager Community Development under the s 9.10 of the Local Government Act 1995 (WA) and the Dog Act;[25]
(b)the City of Perth Statutory Authorisation Register provides that the CEO of the City of Perth and all General Managers are authorised for the purposes of the Local Government Act and the Dog Act; [26] and
(c)the City of Perth Register of Delegations and Authorisations confirms that the CEO of the City of Perth has sub-delegated its functions under the Act to the General Manager Community Development in accordance with Dog Act s 10AA.[27]
[25] Carney Affidavit, Attachment 3, page 141.
[26] Carney Affidavit, Attachment 2, page 126.
[27] Carney Affidavit, Attachment 1, pages 74 - 75.
I agree and find that Mr Carney was an authorised person as at the time of the seizure of Ollie.

Did the rangers who seized Ollie comply with Dog Act s 9B(4) and, if not, did this render the seizure unlawful?

Dog Act s 9B(4) in context provides:
9B. Designated persons
(1)The CEO may, in writing, authorise persons to perform the functions conferred on designated persons under this Act (each a designated person).
(2)An authorisation under this section may -
(a)limit the functions of the designated person to functions specified in the authorisation; and
(b)be cancelled by the CEO at any time.
(3)The CEO is to issue to each designated person a certificate stating that the person is a designated person for the purposes of this Act.
(4)A designated person must produce the certificate issued under subsection (3) at the reasonable request of a person in respect of whom the designated person exercises, has exercised, or is about to exercise any power under this Act.
Dog Act s 9B(4) is not the applicable section in the present case. This is because the power to seize and detain a dog in both s 29(3) and s 29(5a) is to be exercised by an 'authorised person' and not a 'designated person'.
However, there is a parallel requirement on an 'authorised' person to produce their certificate upon being required to do so. Specifically, Dog Act s 11(3) provides:
(3)A person who is authorised by a local government to exercise any power under this Act shall be furnished with a certificate in the prescribed form evidencing his appointment, and shall produce that certificate on being required so to do by a person in respect of whom he exercises, has exercised, or is about to exercise any such power.
By Dog Regs reg 14, the certificate required by s 11(3) is to be in the form of Form 1. By Interpretation Act 1984 (WA) s 74, where 'a form is prescribed or specified under a written law, deviations therefrom not materially affecting the substance nor likely to mislead shall not invalidate the form used'. Form 1 is Annexure A to these reasons.
A copy of Mr Carney's certificate evidencing his appointment is Attachment 3 to the Carney Affidavit, and is Annexure B to these reasons.
To the extent that there are slight differences between the actual certificate (Annexure B) and the prescribed certificate (Annexure A), I am satisfied that they do not materially affect the substance nor are they likely to mislead. His certificate is a compliant certificate.
In the 7 May Affidavit, Ms van der Berg deposes that:[28]
I asked rangers for proof that they were designated or authorised to seize dogs, but they all refused to provide me with any such proof and said they were authorised to do anything with respect to dogs.
[28] 7 May Affidavit, par 11.
It is clear from the BWC Footage, that at no time did Ms van der Berg require Mr Carney to produce evidence of his appointment, and so he did not do so. I am satisfied that there was no breach of Dog Act s 11(3) by Mr Carney.
However, if I was wrong about this finding and Mr Carney did not produce his certificate upon being required to do so, in my view, this does not invalidate the exercise of the power to seize Ollie pursuant to Dog Act s 29(3). The exercise of those powers is not conditioned on the authorised officer producing a certificate prior to seizure upon being required to do so.
It is also apparent the BWC Footage did not capture all the conversations which Ms van der Berg had with the rangers, only those where Mr Carney was close enough so that his body worn camera could record the audio. So it may be that Ms van der Berg asked one of the other rangers to see evidence of his appointment, a request which was refused. However, even if this occurred, for the reason set out in [82] it would not render the subsequent seizure unlawful.

Was the Notice in the form required by Dog Regs Form 6 and, if not, did this render the seizure unlawful?

The required form for a seizure pursuant to Dog Act s 29 is Dog Regs Form 6.[29] A copy is Annexure C to these reasons.
[29] Dog Regs, reg 26.
The original form completed by Mr Carney, which I have defined as the Notice, is exhibit 2. A copy the Notice is Annexure D to these reasons.
It is apparent from comparing the Notice to Form 6 that the Notice incorporates all the text from Form 6. The main differences are that:
(a)more detail is given about the dog in addition to the registered number of the dog as required by Form 6; and
(b)detail is given about the seizure of the dog, which is not required by Form 6.
In my view the deviations from Form 6 in the Notice do not materially affect the substance of the Notice. Nor are they likely to mislead. Rather, they add useful information for both the City's records and the recipient. The deviations in the Notice from Form 6 are well within the range of deviations permitted by Interpretation Act 1984 (WA) s 74.
The Notice was in the form required.
Did the Notice indicate under which section of the Dog Act Ollie was seized and, if not, did this render the seizure unlawful?
As is apparent from Annexure D, Mr Carney ticked the box on the Notice next to the words: 'under the powers conferred by the Dog Act 1976 section 29(3)(d)'. He is seen doing so on the BWC Footage.[30] It is also apparent that there were two copies of the Notice. The top copy was white. The bottom copy was yellow. The rear of the top copy was self-carbonating, meaning that the writing on the top white copy should transfer through to the bottom yellow copy.
[30] Exhibit 1, at 42.25 minutes into the footage.
The original yellow copy was given to Ms van der Berg. She was not able to find it to produce it to the court. However, on the scanned version which is Attachment 1 to the 7 May Affidavit, it is not apparent that either box is ticked.
Plainly what has happened is that the tick on the white copy did not transfer to the yellow copy.
In my view, this does not render the Notice defective or the seizure unlawful.
In any event, Mr Carney and those with him made it clear to Ms van der Berg the power that was being relied on to seize Ollie was that in Dog Act s 29(3)(a) and (d), and not a warrant.

Is the continuing detention of Ollie unlawful?

I pause at this point to record that, in my view, none of the challenges to the lawfulness of the seizure of Ollie were established, and that, as a consequence, his seizure and initial detention were lawful.
Ms van der Berg then asserts that the continuing detention of Ollie is unlawful.
The circumstances in which the City is required to release Ollie are set out in Dog Act s 29(4) and (8):
(4)Where a dog is seized pursuant to subsection (3) the authorised person may -
(a)cause it to be returned to the owner; or
(b)detain it,
and the owner shall be liable to pay to the local government detaining the dog, if so required by the local government and whether or not payable to the local government, before the dog is returned to the owner the reasonable cost of returning the dog or of maintaining it during the period of detention, or both where that is appropriate, together with any charges levied in relation to the seizure and impounding of the dog and any other fees or charges relating to that dog which ought to have been, but had not been, paid under this Act, including any penalties imposed on, or costs or expenses payable by, the owner in respect of an offence, whether or not the dog is returned to the owner.
…
(8)Where a dog is detained under subsection (3) - (a) if the dog is wearing a registration tag or is microchipped or the owner is otherwise readily identifiable, the authorised person causing it to be detained shall also cause notice to be given to the owner, or if the notice cannot be given to the owner to the owner's delegate, if any, in the prescribed manner and form as soon as is practicable; and Dog Act 1976 Part VI Control of dogs Division 1 Dogs generally s. 29 page 50 Official Version As at 28 Nov 2024 Published on [PCO 08-b0-00] (b) if the dog is wearing a registration tag or is microchipped or the owner is otherwise readily identifiable, the dog is to be kept and maintained for a period of at least 7 days next following the giving of the notice under paragraph (a); and (c) if the dog is not readily identifiable, the dog is to be kept and maintained for a period of at least 72 hours next following the time the detention commenced, but, subject to this section, to the prior payment of any moneys required in accordance with subsection (4), to be paid to the local government detaining the dog, and to section 33G, or unless the dog is required to be detained as evidence of an offence, shall be delivered up to a person who produces satisfactory evidence of ownership or of his authority to take delivery of it.
The effect of Dog Act s 29(4) and (8) is that, with one caveat, where (as in this case), the dog is microchipped and the owner is readily identifiable, the dog is required to be delivered to the owner unless:
(a)the owner has not paid the fees due pursuant to s 29(4); or
(b)s 33G applies; or
(c)the dog is required to be detained as evidence of an offence.
The caveat is the application of s 29(10), to which I return later in these reasons.
As to the precondition in [97(c)], as mentioned ([51]), counsel for the City notified the court that Ollie is no longer required to be detained as evidence of an offence.
Counsel also advised the court that the City did not assert that Dog Act s 33G applied. This is because this section is only enlivened when the dog was already a 'dangerous dog' when the alleged attack justifying the seizure occurred. In the present case, Ollie was only declared to be a dangerous dog after the attack is said to have occurred (see [47]).
That leaves the fees. Counsel for the City informed the court that as at 13 May 2025, the fees owing pursuant to Dog Act s 29(4) were $258. This was for 7 days detention. Ms van der Berg asserted that the court could exercise its judicial review powers in respect of these fees and determine that this amount was not reasonable. In particular, Ms van der Berg said that she was a concession card holder and that she did not currently have $258.[31]
[31] Transcript 13.5.25, page 158.
Based on the principles relating to judicial review set out at [8], it is not open to the court to review a decision of the City that the costs it asserts are not, as a matter of fact, 'reasonable' within Dog Act s 29(4). This would be a review of the merits of this decision. As noted in the passage from the decision in Reid which I have quoted at [8], it is open to the court to review this decision on the basis of 'legal unreasonableness'. Perhaps the widest expression of this ground is that a decision may be legally unreasonable if it 'lacks an evident and intelligible justification'.[32] Another wide expression is that 'the result itself bespeaks error'.[33] On neither of these grounds has Ms van der Berg persuaded me that fees of $258 for 7 days detention is legally unreasonable. There is no other basis on which the decision to set fees at this rate is open to the court to review in judicial review proceedings.
[32] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 [76] (Hayne, Kiefel and Bell JJ), also [25] (French CJ) and [105] (Gageler J) (Li); Medical Board of Australia v Arukalaivanan [2023] WASCA 117 [68] - [69] (judgment of the court); Silkchime Pty Ltd v Valuer-General [2023] WASCA 114 [79] - [82] (judgment of the court) (Silkchime).
[33] Li [85]; Silkchime [82].
Counsel for the City also argued that there is a further barrier to release, being that created by Dog Act s 29(10). That subsection provides:
(10)Where a dog has been seized and detained, whether or not under this section, and -
(a)the dog is not claimed; or
(b)the person in whose name the dog is registered declines to resume possession of the dog; or
(c)any moneys due in relation to the dog are not paid; or
(d)section 33G(6) applies; or
(e)an authorised person is satisfied that to deliver up the dog under subsection (8) or (8A) would create circumstances that give rise to an offence against this Act,
an authorised person may cause the dog to be destroyed
The City does not assert that Ollie should be destroyed. Rather, its position is that the effect of Dog Act s 29(10)(e) is that it allows the City to continue to detain Ollie if an 'authorised person is satisfied that to deliver up the dog under subsection (8)… would create circumstances that give rise to an offence against this Act'. In effect, local governments have the ability to detain a dangerous dog until satisfied that the dog can be safely returned to its owner. This position is said to reflect the purpose for which the amendments to the Dog Act in 2013 relating to dangerous dogs were introduced, one of which was to 'provide greater protection to the community'[34] I agree with this interpretation.
[34] Explanatory Memorandum for the Dog Act Amendment Act 2013, page 1[1] - [2]; see par 9.3 of the City Submissions.
Given that Ollie has been declared a dangerous dog, there were two particular offences in the Dog Act which the City asserts fall within in s 29(10)(e). The first is s 33GA(2). which creates an offence where the dangerous dog is not kept in a complying enclosure. The second is s 33GA(5) which creates an offence where dangerous dog signage is not displayed at the nominated premises.[35] The City's position is that until it can be satisfied that the premises to which Ollie is to be released to comply with these provisions, an authorised person could not be satisfied that to deliver up the dog would not create circumstances that give rise to an offence against the Dog Act.
[35] Transcript 13.5.25, page 147.
In response, Ms van der Berg argues that it is impossible for her to comply with these requirements as she is only in Perth visiting a sick relative for a short period of time. She tells me that her unit in Sydney would comply with the enclosure requirements and that she would be prepared to comply with the signage requirements at her unit. However, it is not possible for her to comply with either the enclosure or signage requirements whilst in Perth.
Again, the issue for the court is whether there is a basis for judicial review of the decision of the City to continue to detain Ollie in reliance on Dog Act s 29(10)(e). My conclusion at [103] means that the decision is one that it is open to the City to make, in other words, the decision is within its jurisdiction to make.
It is again open to Ms van der Berg to challenge this decision in judicial review proceedings. For the same reasons I set out at [8], it is not open to her to assert that there was insufficient evidence to justify the decision. It is only if there is no evidence to justify the decision that it will be open to being set aside. In my view, there is a clear factual basis for the decision to continue to detain Ollie on the ground set out in Dog Act s 29(10)(e). Moreover, the decision to do so is not open to challenge on the basis that it is legally unreasonable in the sense discussed at [101].
In my view, as matters stood at the time of the hearing on 13 May 2025, there was no basis on which the decision of the City to continue to detain Ollie could be set aside in judicial review proceedings.

What final orders are appropriate?

It was readily apparent towards the end of the hearing on 13 May 2025 that Ms van der Berg was becoming increasingly distressed at the prospect that she would not be able to secure the release of Ollie, either immediately or at all. In particular, the point at [105] placed her in an impossible position.
I sought to explore with the parties whether there was a pragmatic course which:
(a)respected the fact that at all times the City had acted lawfully;
(b)recognised the difficult situation that Ms van der Berg was in; and
(c)was consistent the with judicial review powers of the court.
In the end, I consider that the following orders chartered a course which met the constraints in [110]:
1.Upon the plaintiff:
(a)paying the City of Perth the reasonable cost of maintaining the dog Ollie the subject of these proceedings (the Dog) during the period of detention pursuant to Dog Act 1978 (WA) s 29(4) fixed in the amount of $258; and
(b)signing, serving on the defendant and filing the written undertaking to the court annexed to this order to:
(i)commence travel by car to her residence in Sydney within 12 hours of collecting the Dog;
(ii)notify the court once that journey has commenced by email to [email protected]; and
(iii)keep the Dog in a hard sided carrier when in public whilst in Western Australia,
the Dog is to be released by the defendant to the plaintiff.
2.The order in paragraph 1 is does not affect the power of the defendant to release the Dog from detention if it otherwise considers it appropriate to do so.
3.The application is otherwise dismissed.
4.The plaintiff pay the defendant's costs of the application to be taxed if not agreed.
A draft undertaking was attached to the orders which were extracted.
Counsel for the City did not oppose orders in these terms.
Ms van der Berg left the court in an angry and distressed state part way through the discussion. Her position to the point of her departure was that the orders proposed did not go far enough to allow her to secure the immediate release of Ollie.
In relation to paragraph 1(a) in [111], as there is no basis to challenge the decision of the City to require Ms van der Berg to pay the reasonable costs of detention, she must do so before Ollie can be released. I did fix those costs as at 13 May 2025 in order to give certainty to the order. As counsel for the City correctly pointed out, these costs will continue to increase if detention continues. I have only fixed the costs for the purposes of the orders. If Ms van der Berg seeks the release of Ollie in the usual application of Dog Act s 29(4) and (8), the City is entitled to require her to pay those additional fees. Paragraph 2 makes it clear that the other avenues open to Ms van der Berg to secure the release of Ollie pursuant to Dog Act s 29 continue to apply.

In relation to paragraph 1(b), if Ollie is removed from Western Australia, then there would no factual basis for an authorised officer to be satisfied that 'to deliver up the dog under subsection (8)… would create circumstances that give rise to an offence against this Act'. The Dog Act does not apply to New South Wales. In this specific scenario, the decision to continue to detain Ollie would become open to judicial review. Counsel for the City was concerned as to how the City could be satisfied that Ms van der Berg would in fact leave Western Australia once Ollie was released to her custody. I formed the view that this could be addressed using an undertaking to the court. Breach of an undertaking to the court is a contempt of court.[36]
[36] See for example: Attorney-General v Morrison [No 2] [2022] WASC 295 [21] (Curthoys J).
In relation to paragraph 3, as none of the grounds relied on by Ms van der Berg to challenge the seizure and detention of Ollie had merit, the Application should otherwise be dismissed.
As to paragraph 4, as the City is the successful party, it should recover its costs.[37]
[37] RSC O 66 r 1(1).

ANNEXURE A

ANNEXURE B

ANNEXURE C

ANNEXURE D

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
OB
Associate to the Hon Justice Gething
22 MAY 2025