Cootes v Auckland Council

[2013] NZHC 152

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-246 [2013] NZHC 152

BETWEEN  SANDRA LEE COOTES Appellant

ANDAUCKLAND COUNCIL Respondent

Hearing:         11 February 2013

Counsel:         Appellant in person

VJ Tamatea for Respondent

Judgment:      11 February 2013

JUDGMENT OF BREWER J

SOLICITORS

Auckland Council (Auckland) for Respondent

(Copy to Appellant in person)

COOTES V AUCKLAND COUNCIL HC AK CRI-2012-404-246 [11 February 2013]

[1]      On 3 July 2012 in the District Court at North Shore, Judge EM Aitken found proved against the appellant two charges under the Dog Control Act 1996.   As a consequence of those findings, the District Court Judge ordered the destruction of a dog belonging to the appellant.

[2]      The appellant has appealed against her conviction and this order.  Her main ground for doing so is that she was unaware of the hearing on 3 July 2012 and that is why she did not appear to defend the charges.

[3]      The matter came to callover on 14 September 2012 before Woolford J.  At that callover, Ms Cootes was ordered to file affidavit evidence relating to her version of events.   Ms Cootes failed to do that.   Ms Cootes did file submissions which occupy a third of a page and which simply set out her view of the facts.

[4]      Counsel for the respondent opposes the appeal.   He has complied with his duty to the Court and has filed all of the affidavits required to give me a proper background to the case.

[5]      Ms Cootes has appeared today and wishes to proceed notwithstanding the lack of any evidence to support her claim.

[6]      As I have said to Mr Tamatea, if this were simply a matter of an order in the nature of a fine, I would dismiss Ms Cootes’ appeal.  But the destruction order for the dog is the point that makes the difference.  I cannot decide on the material before me whether Ms Cootes had been informed of the hearing before Judge Aitken or not, but I cannot discount the reasonable possibility that Ms Cootes, because she had changed her address, did not receive the notification.   I cannot allow a dog to be destroyed with that reasonable possibility in the background, notwithstanding that it seems that on the material provided by Mr Tamatea there is a factual basis for the order made by the District Court Judge.

[7]      Accordingly, I allow the appeal.   I quash the conviction and set aside the order for the destruction of the dog.  I remit the case back to the District Court for a rehearing.  I note for the record that today Ms Cootes has told me that her address

currently is 29A Wolsley Avenue, Milford, Auckland.  That is the address to which the District Court should now refer its notice of the further hearing.  Under the

circumstances I will leave costs to the District Court to determine in due course.

Brewer J