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…

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: [2013] NZHC 1806
Decision Date: 16 July 2013

CaseChat Overview and Summary

In Claridge v Auckland Council, the appellant, Patricia Claridge, appealed a decision made by Judge Tremewan in the District Court at Waitakere under section 57(2) of the Dog Control Act 1996. The appellant's dog, Lizzie, was found to have attacked another dog, Oscar, resulting in serious injury. Consequently, the District Court ordered Lizzie's destruction, imposed a fine on the appellant, and ordered her to pay reparation. The appellant did not appear in the District Court, but she lodged an appeal against the order for Lizzie's destruction, albeit out of time. Despite the delay, the High Court considered the appeal's merits due to the serious consequences of the potential destruction of an otherwise healthy animal.

The central legal issue was whether the circumstances of the offence were exceptional enough to warrant not destroying Lizzie. Under section 57(3) of the Act, the court must order the destruction of a dog unless it is satisfied that the circumstances were exceptional and did not warrant destruction. The appellant bore the onus to prove exceptional circumstances. Several factors were considered, including the nature and consequences of the attack, the owner's history as a dog owner, whether the dog had behaved similarly in the past, how the attack occurred, and what could be done to prevent future attacks.

The High Court found that the attack was serious but not prolonged, and Oscar had recovered from his injuries. The appellant had a good history as a dog owner, and there was no evidence that Lizzie had exhibited aggressive behavior before. The attack seemed to be an isolated incident, likely triggered by Lizzie's unfamiliarity with Oscar and the other dog on the property. Additionally, measures had been taken to prevent future attacks. The court concluded that the circumstances were exceptional and granted the appeal, quashing the order for Lizzie's destruction. However, the orders for reparation and the fine remained in place, reflecting the court's sanction of the appellant as the owner.

In summary, the High Court allowed the appeal on the ground that the attack was exceptional and did not warrant the destruction of Lizzie. The order for destruction was quashed, but the orders for reparation and the fine were upheld.

Orders