Wilson v City of Onkaparinga

Case [2024] SASC 139

SUPREME COURT OF SOUTH AUSTRALIA

(Appeal to a Single Judge)

WILSON v CITY OF ONKAPARINGA

[2024] SASC 139

Judgment of the Honourable Justice B Doyle  

5 December 2024

ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

ANIMALS - LIABILITY OF OWNERS AND KEEPERS IN RESPECT OF INJURIES BY ANIMALS - STATUTORY PROVISIONS - SOUTH AUSTRALIA

The applicant sought leave to appeal a decision of the South Australian Civil and Administrative Tribunal ('the Tribunal') affirming the decision of the City of Onkaparinga Council to make a prohibition order against the applicant pursuant to s 59A of the Dog and Cat Management Act 1995 (SA).

The prohibition order prohibited the applicant from acquiring or becoming responsible for the control of any dog for a period of five years and required that each dog in the control of the applicant be surrendered to the respondent and destroyed.

The applicant sought orders that the dog not be destroyed and be returned to him under his care and control.

Held, granting leave to appeal, allowing the appeal in part to reduce the duration of the prohibition order but otherwise dismissing the appeal:

1.The applicant was not denied procedural fairness by the Tribunal.

2.The criteria for making a prohibition order were established.

3.The Tribunal should have found that the preferable order was of a lesser duration.

4.The Tribunal did not otherwise err in finding that the prohibition order, requiring the destruction of the applicant's dog, was the correct and preferable decision.

Criminal Code 1899 (Qld) s 31(2); Criminal Law Consolidation Act 1935 (SA) s 50; Dog and Cat Management Act 1995 (SA) ss 25D, 43, 44, 47, 50, 51, 55, 59A, 72 and 86; Freedom of Information Act 1991 (SA) sch 1 cl 12; South Australian Civil and Administrative Tribunal Act 2013 (SA) ss 34, 37, 39, 50 and 71, referred to.
Aldridge v Registrar of Firearms (SA) [2022] SASC 5; Aldridge v Whyalla City Council [2020] SACAT 13; Allen v Chadwick (2015) 256 CLR 148; Ash v City of Burnside (Unreported, District Court of South Australia, Master Rice, 3 March 2016); Briginshaw v Briginshaw (1938) 60 CLR 336; Chiro v The Queen (2017) 260 CLR 425; Fletcher v Australian Health Practitioner Regulation Agency [2023] SASCA 36; Gassy v The King [2023] SASCA 90; GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857; Henderson v South Australian Housing Trust [2024] SASCA 55; House v The King (1936) 55 CLR 499; Jackson v Lepp Investments Pty Ltd [2016] SASC 62; JJK v Police [2023] SASCA 73; Khoo v Bartholomaeus [2020] SASCFC 122; Maroulis v Pscyhology Board of Australia [2021] SASC 16; Martincic v Ethnic Broadcasters Inc [2024] SASCA 33; Minister for Immigration & Border Protection v SZVFM (2018) 264 CLR 541; Minister for Primary Industries and Regional Development v Scali [2024] SASC 4; Norcock v Bowey [1966] SASR…

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Wilson v City of Onkaparinga [2024] SASC 139
Case
[2024] SASC 139
Decision Date

CaseChat Overview and Summary

In the matter of Wilson v City of Onkaparinga, the South Australian Civil and Administrative Tribunal (SACAT) was tasked with determining the appropriate response to the City of Onkaparinga's application for a prohibition order under the Animals (Control and Protection) Act 2002 (SA). The City sought the order following multiple incidents involving an aggressive dog, Stella, owned by the appellant, Mr Wilson. The City argued that the dog had caused significant distress and attacks on other dogs and people, necessitating the prohibition order to prevent future incidents. Mr Wilson contested the application, arguing that the proposed duration of the order was excessive and that alternative measures could be effective.

The primary legal issues before the court were whether a prohibition order should be imposed on Mr Wilson and, if so, the appropriate duration of the order. The court had to consider the statutory framework, the previous incidents involving Stella, the impact of the order on Mr Wilson, and the necessity of the order to prevent future attacks. The court also needed to assess whether the Tribunal had considered all relevant factors and whether there was any error in principle that would warrant interference with the Tribunal's decision.

In its reasoning, the court examined the Tribunal's decision to impose a prohibition order, noting that the Tribunal had considered the impact on Mr Wilson and Stella, the inefficacy of previous measures, and the distress caused by Stella's attacks. The court found no error of principle in the Tribunal's decision and concluded that the order was both correct and preferable under the statutory framework. Regarding the duration of the order, the court noted that while the Tribunal did not provide a detailed explanation for the five-year period, other cases suggested a period of 18 months to three years was more appropriate in similar circumstances. The court concluded that the five-year period was excessive and did not consider it materially relevant to the question of the appropriate duration of the prohibition order.

The court ultimately determined that the prohibition order should be confirmed, but with a reduced duration of three years, acknowledging the significance of the preclusion period and the need for a balanced approach considering the interests of all parties involved. The court refrained from accepting additional affidavits submitted by the City, as they did not significantly impact the assessment of the duration issue.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

It may be that in some cases those three matters (whether to make the order, for what duration, and the appropriate order to be made with respect to the dogs in the person’s possession) ought to be considered together, rather than strictly sequentially or distinctly,[39] but for convenience, I will address them in turn.[39] Given that a Prohibition Order requires that each dog for which the person is responsible must be destroyed or otherwise disposed of, in a case in which some other form of disposal is not practicable, this may bring into more sharp focus the question whether it is appropriate for the Prohibition Order to be made at all in a given case, particularly if one or more of the dogs that would be affected has not been involved in serious or repeated attacks and if the impact upon the owner of the destruction of the dog may be even more pronounced than may be expected in other circumstances.Decision to make an order In deciding whether to impose a Prohibition Order in this case, the Tribunal recognised that there were a number of factors to be brought to bear. Those included the impact of making the order on the applicant, and Stella, but they needed to be considered in the context of the inefficacy of previous less drastic measures and the significant distress caused to the owners of dogs attacked by Stella on five, if not six, occasions, and the impact of those attacks on the dogs themselves. It was also appropriate to have regard to the applicant’s response to previous orders served upon him. The Tribunal’s reasoning at Reasons [65]-[69] appears to me to involve a consideration of the relevant considerations and does not reveal that significance has been attached to any irrelevant considerations. I discern no error of principle that would justify interfering with the decision to impose a Prohibition Order if the ‘deferential standard’ applies. Even if the ‘correctness standard’ applies, I am not persuaded that the Tribunal was wrong in considering that the decision to make a Prohibition Order was, having regard to the statutory framework in which it was required to make its assessment of the issue, both ‘correct’ and ‘preferable’. I should add at this point that shortly prior to the hearing of the appeal, the respondent filed and, at the hearing, sought permission to rely upon, two further affidavits which it contended were relevant to the question whether a Prohibition Order against the applicant was appropriate. In his affidavit of 25 September 2024,[40] Mr Jeffery describes (and annexes evidence of the content of) a telephone call made to him on 2 September 2024 in which the applicant spoke aggressively and abusively towards him. He also states that immediately before and after the directions hearing on 4 September 2024 in this Court, the applicant made threatening gestures and statements to him. In his affidavit of the same date,[41] Mr Trevor Ashenden gives a similar account of the events on 4 September 2024. He also refers to a telephone call on 18 September 2024 during which the applicant made threatening comments.[40] FDN 10.[41] FDN 9.

Ratio Decidendi

Legal Principle Established

In circumstances where I am not persuaded that the decision to make a Prohibition Order was wrong, the only reason to receive the affidavit would be if it bore on the question of the duration of the order. However, if I were to receive the affidavits and accept them as proof of the facts described, I do not consider they would have a significant bearing on my assessment of that issue, because I consider that if the facts were as described, they mainly reflect that the applicant is presently extremely emotional and distressed about these proceedings. There is also a suggestion of the involvement of alcohol in one incident described. Without wishing to trivialise what might, if established, be very serious conduct, I do not think it bears materially on the question of whether the applicant ought, in say two, rather than five, years, be in a position where he should not be precluded from owning and caring for any kind of dog.Duration of prohibition I turn then to the duration of the prohibition order. The reasons given by the respondent for its decision, to which I referred earlier, do not contain a detailed explanation of the particular reasons why it was considered that a preclusion of as long as five years was appropriate. In the Tribunal, it was observed (at Reasons [71], as set out earlier) that the applicant did not make any submission concerning the period of the order, and that his primary concern was the aspect of the order requiring Stella to be destroyed. In its written submissions in this Court, the respondent concluded by submitting that:Accordingly, the Respondent submits the imposition of the Order is the correct and preferable decision. In the alternative, if the Court is not minded to confirm the Order in its present terms, then [the] Respondent submits that the Court ought, at the very least, to impose a Prohibition Order upon the Applicant, but perhaps for a lesser period than that imposed by the Respondent. That was not a concession that the Tribunal erred in affirming the duration of the Prohibition Order, but it was a fair and appropriate recognition of the fact that the length of the preclusion imposed in this case was significant. Whilst I am not bound by previous decisions which, in any event, each have to be determined on their facts, my impression from other decisions is that a period of preclusion of in the range of 18 months to three years has been considered appropriate in other cases where there have been repeated failures on the part of the dog owner, but where there is reason to think both that the person now has a better insight into the importance of responsible dog management and that the impact of depriving them of the companionship of a dog will have a very deleterious effect on their health.[42][42] See, eg, Selvanera v City of West Torrens [2018] SACAT 14 at [88]-[92] and the decisions referred to therein. When I asked him during the course of the appeal before me what he said about the length of time, the applicant’s initial response was that:I think that’s very excessive, five years, you know, that’s – what am I, I’m 60? That could be half of the rest of my life, you know what I mean? Five years is a long time.