Auckland Council v Paul - [2022] NZHC 1898

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-404-126

[2022] NZHC 1898

BETWEEN
AUCKLAND COUNCIL

Appellant

AND

JOANNE FRANCES PAUL

Respondent

Hearing: 7 June 2022

Appearances:

D J Collins and B V Magill for Appellant J B Carter for Respondent

Judgment:

3 August 2022

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 3 August 2022 at 2 pm

Registrar/Deputy Registrar

Solicitors:
James Carter Law, Hamilton

AUCKLAND COUNCIL v PAUL [2022] NZHC 1898 [3 August 2022]

Introduction

[1] Auckland Council (the Council) appeals against a decision of Judge Pecotic in the Auckland District Court on 25 March 2022 in which her Honour declined the Council’s application to impose a dog destruction order for a dog owned by Ms Joanne Paul (the respondent).1 The dog is a Shar Pei named “Zeus”. Zeus bit the hand of a person who was attempting to pat him.

[2] The respondent pleaded guilty to one charge of being the owner of a dog that attacked a person.2 Under s 57(3) of the Dog Control Act 1996, the court must make an order for the destruction of the attacking dog unless it is satisfied that the circumstances of the offence were exceptional and do not warrant destruction of the dog. Judge Pecotic found that there were exceptional circumstances which did not warrant Zeus’s destruction, and she declined to make an order for his destruction.3 She instead sentenced the respondent by imposing a fine of $1,000 and ordered that $500 of the fine be paid to the Council and $500 to the complainant as emotional harm reparation.

[3]The Council now appeals against that sentence.

Background

[4]The factual basis for the sentence was set out in an agreed summary of facts:

The [respondent] is the owner of a brown and white coloured male Shar Pei named Zeus.

On 23 June 2020 at approximately 10.00am the complainant visited Waiheke Movers for work purposes. On arrival he opened the sliding door to their office and closed the door behind him. The [respondent] was sitting at her desk. The [respondent]’s dog, which was known well by the complainant, was free to roam in the office area and came up to him. The complainant bent down and played with the [respondent]’s dog, scratching him on the bum and back all over. The [respondent]’s dog then picked up a shoe and brought it to him. The complainant took this as a sign the dog wanted to play and put his hand on the shoe to take it from the him. The [respondent]’s dog growled and the [respondent] said “don’t do that”. The complainant immediately stopped but kept rubbing the [respondent]’s dog on the bum and chest.

1 Auckland Council v Paul [2022] NZDC 7990 [District Court decision].
2 Dog Control Act 1996, s 57(2).
3 At [30].

When the [respondent] came off the phone they engaged in business which involved the complainant making a call on his mobile. While on…

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: [2022] NZHC 1898
Decision Date: 3 August 2022

CaseChat Overview and Summary

Auckland Council appeals against a decision of the Auckland District Court to decline the Council’s application to impose a dog destruction order for a dog owned by Ms Joanne Paul. The dog, Zeus, bit the hand of a person who was attempting to pat him. The respondent pleaded guilty to one charge of being the owner of a dog that attacked a person. Under s 57(3) of the Dog Control Act 1996, the court must make an order for the destruction of the attacking dog unless it is satisfied that the circumstances of the offence were exceptional and do not warrant destruction of the dog. The District Court Judge found that there were exceptional circumstances which did not warrant Zeus’s destruction, and she declined to make an order for his destruction. The Council submits that the Judge erred in law and in principle in applying the test under s 57(3) of the Dog Control Act. The Judge erred in finding that the complainant’s actions constituted provocation and that the location of the incident was “Zeus’ private space”. The respondent accepts that the two-step approach described in Hill applies and that prior history or post-attack conduct of the dog cannot be taken into account. The Court finds that the Judge erred in applying the test under s 57(3) of the Dog Control Act when she found that the circumstances of the offence were exceptional and do not warrant destruction of the dog. It follows that there must be an order for the destruction of Zeus. The Court makes an order for the destruction of the dog “Zeus” pursuant to s 57(3) of the Dog Control Act 1996.

Orders