Ding v Auckland Council - [2022] NZHC 45

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-341

[2022] NZHC 45

BETWEEN
TIANMU DING

Appellant

AND

AUCKLAND COUNCIL

Respondent

Hearing: 22 November 2021

Appearances:

ME Goodwin for the Appellant

DJ Collins and LV Faletau for the Respondent

Judgment:

27 January 2022

JUDGMENT OF FITZGERALD J

This judgment was delivered by me on 27 January 2022 at 2.30pm

Registrar/Deputy Registrar

Date……………………………

Solicitors: M Goodwin, Auckland

And to: Auckland Council, Auckland

DING v AUCKLAND COUNCIL [2022] NZHC 45 [27 January 2022]

Introduction

[1] The appellant, Mr Ding, and his wife are the owners of a German Shepherd dog named Rocky. On 17 November 2019 while on a walk at a local park, Rocky attacked another dog, a French bulldog named Vinnie. The attack was reasonably serious, as Vinnie spent the next four days at the vet having his injuries treated.

[2] At a hearing in the District Court on 7 July 2020, Mr Ding pleaded guilty to the (strict liability) offence under s 57(2) of the Dog Control Act 1996 (the Act) of being the owner of a dog that makes an attack on, relevantly in this case, another dog. Judge Manuel convicted Mr Ding and ordered him to pay a fine of $563, to pay Vinnie’s owner’s veterinary costs of $800 and an emotional harm payment of $500, and to pay court costs totalling $130.1 Pursuant to s 57(3) of the Act, the Judge was also required to impose a dog destruction order “unless [she was] satisfied that the circumstances of the offence were exceptional and [did] not warrant destruction of the dog”. On the material before the Court, the Judge concluded that the circumstances of the offence were not exceptional and accordingly made an order for Rocky’s destruction.

[3] Mr Ding appeals against the Judge’s decision to make the dog destruction order.2 In doing so, he sought to adduce new evidence on the appeal, including expert dog behavioural evidence from Mr Mark Vette, a well-known animal behavioural consultant.

[4] At the hearing before me, I first heard argument on whether the new evidence should be adduced on the appeal. The Council opposed Mr Ding’s application, and said that if the application were granted, it would want to cross-examine the deponents of the affidavits to be filed on Mr Ding’s behalf, including Mr Vette. The Council also proposed to file evidence in response, being a further four affidavits including from Vinnie’s owner and Mr Ding’s counsel in the District Court. In turn, counsel for Mr Ding, Mr Goodwin, confirmed that he would want to cross-examine the deponents

1 Auckland Council v Ding [2020] NZDC 13206.
2 Mr Ding does not appeal against any other aspects of the Judge’s decision.

of the affidavits to be filed on behalf of the Council. For these reasons, in the event the parties were granted leave to adduce the new evidence, a full day had been set aside for the hearing.

[5] Having heard argument…

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 45
Decision Date: 27 January 2022

CaseChat Overview and Summary

In Ding v Auckland Council, Mr Ding appeals against the decision of the District Court to make an order for the destruction of his dog, Rocky, following an attack on another dog, Vinnie, at a local park. The appeal focuses on whether the District Court Judge erred in concluding that there were no exceptional circumstances warranting the destruction of Rocky under s 57(3) of the Dog Control Act 1996. The High Court dismisses Mr Ding's appeal.

The court examines the legal principles governing dog destruction orders, confirming that the focus should be on the immediate circumstances of the attack and whether those circumstances were sufficiently exceptional to warrant not destroying the dog. The Court of Appeal's decision in Auckland Council v Hill, which was followed by the District Court, confirms that post-attack behaviour or events and the dog's history are irrelevant to the "exceptional circumstances" inquiry.

Mr Ding sought to adduce new evidence on the appeal, including expert dog behavioural evidence, to argue that exceptional circumstances existed. The court, however, declined to admit the new evidence. The court was satisfied that even if all the proposed evidence had been before the District Court Judge and accepted by her, the Judge would still have been right to conclude that no exceptional circumstances existed. The suggested "constellation" of factors, including the presence of a ball, the dogs' genders, and their de-sexed status, were not particularly unusual or uncommon. The court held that the new evidence would not have affected the outcome in this case.

The appeal is dismissed, with the court expressing sympathy for Mr Ding and his family but noting the importance of maintaining public safety and deterrence under the Dog Control Act.

Orders