Hedges v Whangarei District Council HC Whangarei CIV 2011-488-796

[2011] NZHC 2024

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV 2011-488-796

BETWEEN  DONALD MITCHELL HEDGES Applicant

ANDWHANGAREI DISTRICT COUNCIL First Respondent

ANDENVIRONMENT NORTH LTD Second Respondent

Hearing:         2 December 2011

Counsel:         C Muston for Applicant

P Magee for Responents

Judgment:      21 December 2011

JUDGMENT OF HEATH J

This judgment was delivered by me on 21 December 2011 at 3.00pm pursuant to Rule 11.5 of the High

Court Rules

Registrar/Deputy Registrar

Solicitors:
Thomson Wilson, PO Box 1042, Whangarei
Copy to:

Mr Hedges, in person

HEDGES V WHANGAREI DISTRICT COUNCIL HC WHA CIV 2011-488-796 21 December 2011

The application

[1]      Mr  Hedges  seeks  judicial  review  of  decisions  taken  on  behalf  of  the Whangarei  District  Council  and  Environment  Northland  Ltd.   The central  issue involves an alleged decision by the District Council to disqualify Mr Hedges as a dog owner.[1]

Background

[1] Dog Control Act 1996, s 25.

[2]      In 2004, Animal Control Northland prosecuted Mr Hedges on a charge of owning a dog, Wally, while disqualified.[2]   The offence was alleged to have occurred between  1 August  and  1  September  2003,  at  Mr Hedges’ home  address.    In  a reserved judgment given on 15 February 2005, in the District Court at Whangarei, Judge Rota dismissed that charge.   He was not satisfied that the prosecution had proved  beyond  reasonable  doubt  that  Mr  Hedges  was,  at  the  relevant  time,

[2] Ibid, s 28(5)(c).

disqualified from owing a dog.   Indeed, Judge Rota made the following express findings:[3]

[3] Animal Control Northland v Hedges DC Whangarei CRN 3088510345, 15 February 2005 at p 8.

2.There  remains  a  question  as  to  whether  “the  Council”  formally exercised its authority and discretion to disqualify.  It did not do so by its delegated Environment Services Committee on 21 December

2000.  It may not have done so itself on 15 February 2011 by that body comprising less than a full complement of WDC councillors.

3.The notice issued and served pursuant to the 21 December recommendation had no legal basis and was ineffective to disqualify. The  notice  copied  and  served  following  the  15  February  2011 meeting was probably without legal effect because of the wording of the motion passed by that meeting, but was certainly without legal force and effect as it was the same notice served on 21 December

2000.

4.Accordingly,   at   the   material   times,   the   defendant   was   not disqualified from owning a dog.

[3]      The present proceeding arises out of Mr Hedges’ concern about what he

terms “considerable public ill-will and humiliation” suffered by him as a result of the

Council treating him as a “disqualified dog owner for several years”.  These include statements   allegedly   made   by   a   representative   of   Environment   Northland, Mr Thompson, that were published in the local newspaper saying that Mr Hedges was  “the most  infringed  dog owner in  Northland”.    Mr Hedges  asserts  that  he remains “penalised by the SPCA and Police because of previous dog destruction orders that were obtained”, in respect of which he was unable to obtain legal representation “to challenge them as classified as dangerous dogs for rushing incidents and then destroyed”.

[4]      Mr Hedges says the reason for the delay in bringing the present proceeding is due to his ill health over the past few years; something evidenced, at least to a degree,  by a letter from  a medical  practitioner dated 15  November 2011.   The medical practitioner states:

[Mr Hedges] was seen by me on 15 Nov 2011 and over the last 15 years has had chronic fungal infections and a history of stroke which has affected his concentration.  He also has a sight and hearing defect.  He has not been fit enough to concentrate on previous legal matters.  More recently he has had improvement in memory and concentration.

Analysis

[5]      A telephone conference was held on 2 December 2011.   At that time,  I expressed concern about whether the proceeding identified a decision capable of being subject to judicial review proceedings.   I directed that Mr Muston, for Mr Hedges, file a memorandum to put Mr Hedges’ position as clearly as possible.   I indicated that, on receipt of the memorandum, I would consider whether there were grounds for the proceeding to continue.   If not, I proposed to give a  judgment in writing, on the papers, without the need for further input from counsel.  The parties agreed with that procedure.

[6]      Mr Hedges has, as a result of those directions, filed a further affidavit and Statement  of  Claim.    His  affidavit  alleges  that  on  28 April  1999,  the  Council classified  three  of  his  dogs  as  dangerous.[4]      He  asserts  that  he  challenged  that

classification unsuccessfully and that the dogs were destroyed thereafter.  It appears

that a fourth dog (Timmy Timid) was on the property, though that was not disclosed to the courts that dealt with Mr Hedges’ challenges to the “dangerous dog” classifications.

[4] Dog Control Act 1996, s 31.

[7]      Mr Hedges’ concern is based on his view that the Council had no right to

declare him to be a disqualified dog owner.  In his most recent affidavit he deposes:

12.I don’t believe there was a legal basis justifying my declaration by Council as being a disqualified dog owner, classifying the dogs as dangerous and destroying them because of those classifications and a minor infringement.

13.That following the seizure of my three cattle dogs on the 9.2.1999 I re-housed the dog Timmy Timid at a farm where I assisted and grazed my cattle.

14.      While he was supposedly under the control of the owner he strayed

onto a neighbour’s property and worried some sheep and was shot.

15.I appealed in 2001 and 2002 to the Whangarei District Council to have my Disqualified Dog Ownership cancelled without any success and it remained up until Judge Rota dismissed the charge of having control of a dog whilst disqualified called Wally.

16.I needed several cattle dogs to assist me droving cattle and rounding them up from unfenced bush areas where I grazed them on several properties.

17.Such a loss of dogs has meant that I have been unable to pursue any farming activity for income and a beneficial health past time.

[8]      In my view, there are three reasons why this proceeding cannot succeed and must be dismissed at this stage:

(a)      One of the decisions that Mr Hedges is challenging involves his classification as a disqualified dog owner.  But, Judge Rota made an affirmative finding on 15 February 2005 that Mr Hedges was not disqualified.   His concerns about the classification of the dogs as dangerous has no basis.  Timmy Timid was not classified as such and the other three dogs have been destroyed.

(b)The decisions in issue were made almost 10 years ago.  The medical evidence is insufficient to excuse delay on that basis.  Indeed, there is evidence that Mr Hedges has been able to prosecute other claims and

defend other charges in the meantime.   The claim is so stale that it could not possibly succeed, even if there were a decision fit to challenge.

(c)      Some of the issues (particularly those involving the dogs that have been destroyed) appear to be moot.  Courts do not generally engage in determining academic questions.[5]     Judicial review is not concerned with  the  vindication  of  reputations.    There  are  other  means  of

achieving that objective, were it an appropriate goal.

Result

[5] Generally, see R v Gordon-Smith (on appeal from R v King) [2009] 1 NZLR 721 (SC).

[9]      For the reasons given, the proceeding is dismissed.

[10]     Because of the way in which the issues were dealt with in this Court, little cost has been incurred by the Council and Environment Northland Ltd.  Even so, a small contribution to their costs is justified, given the hopeless nature of the claims. A global sum (for one set of costs and disbursements) of $250 is awarded in their

favour.

P R Heath J

Delivered at 3.00pm on 21 December 2011