James v Auckland Council

[2020] NZHC 3222

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2020-404-349

[2020] NZHC 3222

BETWEEN

ARRAN ADAM WILLIAM JAMES

Appellant

AND

AUCKLAND COUNCIL

Respondent

Hearing:	7 December 2020
Appearances:	No appearance for Appellant D J Collins for Respondent
Judgment:	7 December 2020

ORAL JUDGMENT OF DUFFY J

Solicitors:

Auckland Council, Auckland

JAMES v AUCKLAND COUNCIL [2020] NZHC 3222 [7 December 2020]

[1]                 Today this appeal was called for hearing and there was no appearance by the appellant, Mr James.

[2]                 On 30 November 2020 Downs J issued a minute in which he recorded that on 17 November 2020 Palmer J had granted Mr James an adjournment. That adjournment was granted on the basis Mr James had influenza. At the time, Palmer J recorded that it was not likely there would be further adjournments.

[3]                 On 30 November 2020 Mr James sent an email to the court saying he was “still sick.” He requested an adjournment of the 7 December 2020 fixture. Downs J declined the application. It was not supported by medical evidence and the Judge observed the appeal had an unfortunate history.

[4]                 The incident in question that has led to Mr James being charged occurred on 28 May 2017.   The Council was not able to serve the dog destruction  order on     Mr James until August 2020, and on 24 August 2020 he file an appeal against both conviction and sentence.

[5]                 I am satisfied that Mr James has had every opportunity to appear and advance his appeal. The Court has been indulgent in granting him adjournments in the past. Today there is no explanation before me from Mr James as to why he could not attend Court.

[6]                 The subject dog, an English Bull Terrier named Albi, has been detained at the Auckland Council pound since the day of the incident, 28 May 2017. It is not satisfactory that Auckland Council has been delayed from proceeding with this issue in the way provided for in the Dog Control Act 1996.

[7]                 I consider there is an animal welfare issue involved here as well. The dog has been held at the Auckland Council pound since the date of the incident, 28 May 2017. The pound, to my understanding, is set up as a temporary holding for dogs and perhaps other animals. Mr Collins for the Council has confirmed to me that the facilities at the pound are not designed to detain a dog for any considerable length of time, and I do not consider it appropriate that a dog should have been held in those conditions from

28 May 2017 until today. I make no criticism of the Council because they could not proceed with destruction of the dog prior to service of the destruction order on      Mr James, and since then he has taken steps to stop the destruction proceeding.

[8]                 I am satisfied this situation cannot be allowed to continue. It is appropriate in these circumstances when an appellant has failed to appear more than once in this Court and has not advanced a proper excuse for his absence for the Court to dismiss the appeal. Here there is the added animal welfare concern if the present state of affairs is allowed to continue. I am satisfied that it is appropriate today for me to dismiss the appeal.

[9]Accordingly, the appeal against conviction and sentence is dismissed.

Duffy J