Claridge v Auckland Council

[2013] NZHC 1806

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-000154 [2013] NZHC 1806

BETWEEN  PATRICIA ELLYN CLARIDGE Appellant

ANDAUCKLAND COUNCIL Respondent

Hearing:                   16 July 2013

Appearances:           Appellant in Person

V Tamatea for Respondent

Judgment:                16 July 2013

JUDGMENT OF VENNING J

This judgment was delivered by me on 17 July 2013 at 3.30 pm, pursuant to Rule 11.5 of the High

Court Rules.

Registrar/Deputy Registrar

Date……………

Copy to:            Auckland Council, Auckland (V Tamatea) Appellant

CLARIDGE v AUCKLAND COUNCIL [2013] NZHC 1806 [16 July 2013]

Introduction

[1]      On 25 February 2013 Judge Tremewan in the District Court at Waitakere found a charge under s 57(2) of the Dog Control Act 1996 (the Act) proved against the appellant, ordered her to pay reparation of $1,293.90, fined her $700.00 and ordered the destruction of a bearded collie cross dog, Lizzie.

[2]      Ms Claridge did not appear at the hearing in the District Court.  However, she lodged an appeal with this Court against the order for destruction.

[3]      The appeal is out of time.  It should have been filed by 25 March 2013.  It was not filed until 15 May 2013.  When this appeal was called on 28 June 2013 the Court directed the appellant to file an explanation for the delay by 5 July 2013.  On 5

July the appellant filed submissions in support of the appeal.  In those submissions she says she was and is under siege.  Her benefit has been cut completely and says she has not time to think about anything other than “damage control”.  She says she has had constant meetings with lawyers in relation to protest actions she has been involved in.   I take it that she advances those matters as her explanation for not appearing at the District Court and also for not filing the appeal within time.

[4]      Although the appeal is out of time, I propose to consider its merits.  If there is sufficient merit in the appeal then, despite the delay in lodging the appeal, given that an animal’s life is at stake, leave should be granted to bring the appeal out of time.

Background

[5]      The evidence of the incident is set out in the affidavit of the injured dog’s owner, Ms Po-Ching.  Ms Po-Ching has two small dogs.  The victim of the attack, Oscar, is a three-quarter Pekingese and one-quarter Chihuahua.   On 30 September

2012 at approximately 1.00 pm Ms Po-Ching was painting the fence at her property on the Te Atatu Peninsula.  Both dogs were with her inside the property.  Ms Po- Ching heard barking from her dogs and also from another dog she did not recognise. She ran to where her dogs were and saw that there was a big dog on top of Oscar who was yelping painfully.  Ms Po-Ching ran and pushed the big dog away.  The big dog came back for another go so Ms Po-Ching kicked it away.   Oscar was badly

injured.  His eye was full of blood and Ms Po-Ching thought his eyeball had come out.

[6]      It is accepted the big dog was Lizzie.   She lived with the appellant at an adjoining property.  Lizzie had jumped a gate, which was approximately 1.2 metres high, and  attacked  Oscar.   When the appellant  heard the commotion, she  came running out of her property, got Lizzie and took her back home.   After that the appellant ran back to Ms Po-Ching, introduced herself and offered to help her drive Oscar to the vet.  Ms Po-Ching declined and said she would take Oscar to the vet herself.

[7]      Unfortunately the veterinarians were ultimately unable to save Oscar’s eye.

However, he has recovered.

[8]      Ms Po-Ching then made a complaint to the animal management inspector, Mr Freeman on the next day, 1 October 2012.  Mr Freeman records in that complaint that:

[Ms Po-Ching] has told me that she isn’t looking for the owner to be fined or for the dog to be removed unless there is a real concern for public safety.

[9]      Ms Po-Ching also told Mr Freeman that someone she spoke to told her the dog had apparently nipped a child on the face a few months back.   It may be that prompted the complaint.   There is no direct evidence of any earlier attack.   The comment is clearly hearsay and I put it to one side.

[10]     Although the appellant’s initial response was appropriate and showed concern and consideration, unfortunately once the Council’s officers became involved her attitude changed.   She became difficult and confrontational.   Matters degenerated from there to the extent that, by the time the matter came before the Court the appellant felt constrained to lie to the authorities by advising that Lizzie had been put down.  That was clearly not the case, although the Judge was given that impression and referred to it when making the order for destruction.

[11]     The appellant has not acted well in this matter.  By her actions she put Lizzie in the position that the Judge in the District Court was left with no real alternative

but to make the orders sought.  Lizzie’s case was not heard.  I accept the force of Mr Tamatea’s submission that this Court should not generally sanction or approve a party, such as the appellant, refusing to engage with the initial hearing in the District Court  then  seeking  to  raise  matters,  which  should  have  been  raised  before  the District Court, at this stage.  However, the destruction of an otherwise healthy animal is a serious matter.  I return to the merits of the appeal.

Decision

[12]     Under  s 57(3)  of  the  Act  the  Court  is  directed  to  make  an  order  for destruction:

unless it is satisfied that the circumstances of the offence were exceptional and do not warrant destruction of the dog.

The onus is on the appellant to satisfy the Court the circumstances of the offence were exceptional.   In that regard in Halliday v New Plymouth District Council[1]

[1] Halliday v New Plymouth District Council HC New Plymouth CRI-2005-443-11, 14 July 2005.

Heath J suggested a number of factors that might be relevant in determining whether there were exceptional circumstances.  Borrowing from those, but applying them to this case, I consider the following to be particularly relevant:

(a)       the nature of the attack and the consequences; (b)       the owner’s history as a dog owner;

(c)       whether the dog had behaved this way in the past;

(d)      how the attack occurred and what, if any, reason there was for it; (e)  what could be (have been) done to prevent such an attack.

[13]     The factors are not exhaustive but provide a useful starting point.

The nature and consequences of the attack

[14]     In the present case the attack on Oscar was serious and resulted in serious injury.  However, it was not a prolonged attacked.  It is relevant that Ms Po-Ching was able to push Lizzie away without any suggestion that Lizzie was threatening or aggressive towards her.  Finally, it is relevant that, although badly injured, Oscar has recovered.

The owner’s history of dog ownership

[15]     In the course of addressing the Court the appellant stated that she was a licensed dog owner, had owned dogs all her life and had never had a problem such as this in the past.  Although at the time of the attack Lizzie was not registered, the appellant explained that was because of her financial position.   Lizzie has subsequently been registered.  Mr Tamatea accepted that the appellant was known to be a good dog owner.

Past behaviour

[16]     There is no evidence that Lizzie had behaved this way in the past.  Lizzie is now 14 years old.  The appellant confirmed that this was a first attack.  It appears quite out of character.

[17]     A number of people filed submissions in support of the appeal.  Apart from relatives of the appellant, other neighbours have written to confirm that in the time they have known Lizzie they have seen her interact with other dogs and people, both adults and children, and have never observed aggressive behaviour from her.   A neighbour says that she has lived next door to the appellant for approximately 10 years and had got to know Lizzie, who had never shown any sign of being an aggressive dog.   Lizzie had never done any harm to her three cats who used to wander over to the appellant’s house, nor has Lizzie attacked or threatened her dogs. In addition, Dr Cathy Casey has written to the Court expressing her support for Lizzie, noting that she has a limited life left in any event as she is approximately 15 years old.

How the attack occurred/what can be done to prevent another attack

[18]     The circumstances of how and why the attack occurred are also relevant.  As the appellant explained, the former neighbours living at Ms Po-Ching’s property had lived there for a number of years.   There was a gateway between the properties which was used freely.   Lizzie had free run of the neighbouring property.   It is understandable that she came to think of it as part of her own area.  The gateway was left when Ms Po-Ching moved into the property as the appellant hoped for a similar relationship with the new occupiers of the property.   However, when Lizzie saw Oscar and the other dog on the property which formerly she had had free run over, she considered them to be a threat.  That provides some background to why such an out of character attack might have occurred.

Steps to prevent future attacks

[19]     The gate that Lizzie jumped over has been replaced with a six foot fence. There does not appear any prospect that Lizzie could attack Ms Po-Ching’s dogs again, even if minded to, which seems unlikely.

[20]     After hearing the appellant’s submissions and discussion with the Court, Mr Tamatea was prepared to accept that the circumstances of the offence could, in this case, be described as exceptional.  I agree.

[21]     While the appellant has not behaved with particular credit in her dealings with the Council or her failure to engage with the hearing in the District Court, for the reasons given above I am satisfied the attack was exceptional and does not warrant destruction of Lizzie. To that extent the appeal will be allowed.

Result/orders

[22]     Leave is granted to the appellant to bring this appeal out of time. [23]           The order for destruction is quashed.

[24]     The order for  reparation  and  the fine,  however,  remain.     Oscar  required extensive treatment as a result of the attack.   A fine is appropriate to record the

Court’s sanction of the appellant as owner.

Venning J