Low v New Plymouth District Council
[2022] NZCA 612
•7 December 2022 at 10.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA307/2022 [2022] NZCA 612 |
| BETWEEN | ESTELLE GRETA LOW |
| AND | NEW PLYMOUTH DISTRICT COUNCIL |
| Hearing: | 14 September 2022 |
Court: | Brown, Goddard and Katz JJ |
Counsel: | J C Hannam for Appellant |
Judgment: | 7 December 2022 at 10.00 am |
JUDGMENT OF THE COURT
AThe application for leave to appeal is granted.
BThe appeal is dismissed.
___________________________________________________________________
REASONS OF THE COURT
(Given by Goddard J)
Is a dog walker an “owner” of the dog under the Dog Control Act 1996?
[1] The Dog Control Act 1996 imposes a number of obligations on owners of dogs. It creates a number of strict liability offences: for example, being the owner of a dog that attacks a person or a domestic animal.[1] The Act gives the term “owner” an extended definition that includes every person who owns the dog, or who has the dog in their possession, with certain specified exceptions.[2]
[1]Dog Control Act 1996, s 57(1).
[2]Section 2 definition of “owner”, paras (a)–(b).
[2] Is a dog walker who is temporarily looking after a dog, by agreement with its owner, treated as an owner of the dog for the purposes of the offence provisions in the Dog Control Act? We consider it is clear that the answer is “yes”, in light of the text of the legislation and the relevant authorities.
[3] It follows that the appeal must be dismissed. Our reasons are set out below.
Background
[4] Ms Low, the appellant, operates a dog day care service. On 22 June 2021 she was walking five dogs along Bell Block beach, north of New Plymouth. She was the owner of two of the dogs. The other three dogs belonged to clients. The dogs were not leashed.
[5] The complainant was riding her horse along the beach. Three of the dogs ran at the horse. The New Plymouth District Council (the Council) alleges that three of the dogs — Dante (owned by Ms Low) and Diesel and Richie (owned by clients) jumped up at the horse, biting at the horse’s legs and body. The complainant’s horse suffered a number of abdominal lacerations.
[6] The Council laid seven charges against Ms Low arising out of this incident:
(a)three charges that, being the owner of a dog, she failed to keep the dog under control (one charge in relation to each of the three dogs);[3]
[3]Sections 52(1) and 53(1).
(b)two charges of being the owner of a dog that rushed at an animal in a manner that caused a person to be endangered (one charge relating to each of the dogs Richie and Diesel);[4] and
[4]Section 57A.
(c)two charges of being the owner of a dog that attacked a domestic animal.[5]
[5]Section 57(1)(b), (2) and (3).
[7] Ms Low applied for the charges to be dismissed under s 147 of the Criminal Procedure Act 2011 on the basis that she did not come within the definition of an “owner” in relation to the dogs. The District Court dismissed the charges.[6] The High Court allowed an appeal by the Council.[7] Ms Low seeks leave to bring a further appeal to this Court.
[6]New Plymouth District Council v Low [2022] NZDC 5264 [District Court judgment].
[7]New Plymouth District Council v Low [2022] NZHC 1154 [High Court judgment].
Relevant provisions
[8] Section 2 of the Dog Control Act defines the term “owner” as follows:
owner, in relation to any dog, means every person who—
(a) owns the dog; or
(b) has the dog in his or her possession, whether the dog is at large or in confinement, otherwise than for a period not exceeding 72 hours for the purpose of preventing the dog causing injury, damage, or distress, or for the sole purpose of restoring a lost dog to its owner; or
(c) the parent or guardian of a person under the age of 16 years who—
(i) is the owner of the dog pursuant to paragraph (a) or paragraph (b); and
(ii) is a member of the parent or guardian’s household living with and dependent on the parent or guardian;—
but does not include any person who has seized or taken custody of the dog under this Act or the Animal Welfare Act 1999 or the National Parks Act 1980 or the Te Urewera Act 2014 or the Conservation Act 1987 or any order made under this Act or the Animal Welfare Act 1999.
[9] Section 5(1) sets out the obligations imposed on dog owners by the Act:
(1)The obligations imposed on dog owners by this Act require every owner of a dog—
(a)to ensure that the dog is registered in accordance with this Act, and that all relevant territorial authorities are promptly notified of any change of address or ownership of the dog:
(b) to ensure that the dog is kept under control at all times:
(c)to ensure that the dog receives proper care and attention and is supplied with proper and sufficient food, water and shelter:
(d) to ensure that the dog receives adequate exercise:
(e)to take all reasonable steps to ensure that the dog does not cause a nuisance to any other person, whether by persistent and loud barking or howling or by any other means:
(f)to take all reasonable steps to ensure that the dog does not injure, endanger, intimidate, or otherwise cause distress to any person:
(g)to take all reasonable steps to ensure that the dog does not injure, endanger, or cause distress to any stock, poultry, domestic animal, or protected wildlife:
(h)to take all reasonable steps to ensure that the dog does not damage or endanger any property belonging to any other person:
(i)to comply with the requirements of this Act and of all regulations and bylaws made under this Act.
[10] The Act includes a number of offence provisions that apply in relation to dog owners, including the following relevant provisions:
53 Offence of failing to keep dog under control
(1)Every person commits an offence and is liable on conviction to a fine not exceeding $3,000 who, being the owner of a dog, fails to keep that dog under control.
…
57 Dogs attacking persons or animals
(1)A person may, for the purpose of stopping an attack, seize or destroy a dog if—
(a)the person is attacked by the dog; or
(b)the person witnesses the dog attacking any other person, or any stock, poultry, domestic animal, or protected wildlife.
(2)The owner of a dog that makes an attack described in subsection (1) commits an offence and is liable on conviction to a fine not exceeding $3,000 in addition to any liability that he or she may incur for any damage caused by the attack.
(3)If, in any proceedings under subsection (2), the court is satisfied that the dog has committed an attack described in subsection (1) and that the dog has not been destroyed, the court must make an order for the destruction of the dog unless it is satisfied that the circumstances of the offence were exceptional and do not warrant destruction of the dog.
(4)If a person seizes a dog under subsection (1), he or she must, as soon as practicable, deliver the dog into the custody of a dog ranger or dog control officer.
…
57A Dogs rushing at persons, animals, or vehicles
(1) This section applies to a dog in a public place that—
(a)rushes at, or startles, any person or animal in a manner that causes—
(i)any person to be killed, injured, or endangered; or
(ii)any property to be damaged or endangered; or
(b)rushes at any vehicle in a manner that causes, or is likely to cause, an accident.
(2) If this section applies,—
(a)the owner of the dog commits an offence and is liable on conviction to a fine not exceeding $3,000 in addition to any liability that he or she may incur for any damage caused by the dog; and
(b)the court may make an order for the destruction of the dog.
(3)A dog control officer or dog ranger who has reasonable grounds to believe that an offence has been committed under subsection (2)(a) may, at any time before a decision of the court under that subsection, seize or take custody of the dog and may enter any land or premises (except a dwellinghouse) to do so.
District Court and High Court decisions
[11] In the District Court Judge A S Greig dismissed the charges. He held that Ms Low was not the owner of the dogs on this occasion, so the prosecution could not succeed.[8]
[8]District Court judgment, above n 6, at [12].
[12] The Judge considered that the definition of “owner” was “incomprehensibly worded”.[9] After referring to a number of decisions of this Court and of the High Court, the Judge construed the provision in the manner most favourable to Ms Low. He preferred the approach suggested in Auckland Council v Hill, where this Court said:[10]
[9]At [9].
[10]Auckland City Council v Hill [2020] NZCA 52, [2020] 3 NZLR 603.
[17] The extended definition of the term “owner” means that a person who has possession of a dog for more than 72 hours has all the duties of an owner under the Act, and commits an offence under s 57(2) if the dog attacks a person or an animal during that period. Conversely, during that period the actual owner of the dog is not exposed to criminal liability for attacks by the dog.
[13] Adopting that approach, the Judge held that a person is only the owner of a dog if they have the dog in their possession for more than 72 hours. That did not apply to Ms Low, so the charges should be dismissed.[11]
[14] The appeal to the High Court was heard by Simon France J.[12] He held that for the purposes of the Dog Control Act the owner is the person who owns the dog and also anyone who has possession of the dog. However certain types of possession do not constitute ownership for the purposes of the Act. Those types of possession are:
(a)when it is for the purpose of controlling the dog or returning it to the owner; and
(b)the possession does not exceed 72 hours.[13]
[15] The Judge set out his analysis of the way in which the Dog Control Act deals with possession of a dog as follows:
[11]District Court judgment, above n 6, at [10]–[13].
[12]High Court judgment, above n 7.
[13]At [12].
[13] To state it another way: possession for more than 72 hours always makes the person an owner. Possession for less than 72 hours normally makes the person an owner, but may not do so if the possession is for one of the identified purposes. As an alternative to “otherwise than”, if the language were instead “except” no real doubt would exist. It is difficult to see that “otherwise than” is intended to introduce a wholly different reading.
[14] My interpretation of the section is that its intent is to say (and that it does using other words say):
an owner is also someone who has the dog in his or her possession …, unless that possession is for the purpose of preventing the dog causing injury … and lasts no longer than 72 hours.
[16] It followed that Ms Low came within the definition of the term “owner” in relation to the dog Dante (which she owned) and also the dogs Diesel and Richie (which she was looking after for clients). The appeal was allowed.
Submissions on appeal
[17] As already mentioned, one of the dogs in relation to which charges were laid was in fact owned by Ms Low. The appeal to this Court relates only to the two dogs that were in Ms Low’s possession in connection with her dog care business.
[18] Mr Hannam, who appeared for Ms Low, submitted that the definition of the term “owner” is a difficult provision that should be read in the manner referred by the District Court Judge. He relied on the decision of this Court in Auckland Council v Hill.
[19] In the alternative, Mr Hannam argued that even if a person who has possession of a dog for less than 72 hours can be an owner, Ms Low came within the exception in the definition because of the role that dog walkers undertake. A dog walker, he submitted, will act to prevent the dog causing injury, damage or distress. A dog walker has possession in the same way that a dog rescuer would have, with the only difference being the consent and knowledge of the owner.
[20] Mr Bourke, for the Council, submitted that the decision of the High Court Judge was consistent with appellate authority in relation to the definition of “owner” under the Dog Control Act. This Court’s comments in Auckland Council v Hill were obiter, as that issue was not the focus of the appeal. Those comments should not be read as departing from the established interpretation of that term in the earlier authorities.
Discussion
Leave to appeal
[21] Ms Low requires leave to bring her appeal to this Court.[14]
[14]Criminal Procedure Act 2011, s 303.
[22] The issue raised by the appeal is of general and public importance. There are conflicting authorities. It is desirable for this Court to determine the question whether a person in possession of a dog with the consent of its owner, such as a dog walker, is treated as an “owner” of the dog under the Dog Control Act. We therefore grant leave to bring a second appeal.
Authorities
[23] In Haskett v Rotorua District Council this Court determined an appeal on a question of law concerning whether more than one person can simultaneously qualify as the statutory “owner” of a dog in terms of s 2 of the Dog Control and Hydatids Act 1982 (the precursor to the current Dog Control Act).[15] That definition read as follows:
[15]Haskett v Rotorua District Council CA113/93, 13 July 1993.
“Owner”, in relation to any dog, means every person who—
(a) Owns the dog; or
(b) Has the dog in his possession, whether the dog is at large or in confinement, otherwise than for the purpose of preventing the dog causing damage or for the sole purpose of restoring a lost dog to its owner; or
…
but does not include any person who has seized or taken custody of the dog under this Act or the Animals Protection Act 1960 or any order made under this Act or that Act, or who has possession of the dog for the purpose of examining or treating the dog for hydatids in accordance with this Act:
[24] This Court said:[16]
It seems clear on the face of the definition that the term “owner” includes not only the person who owns the dog, but any person who has the dog in his possession, so that where these are different people, more than one person will be within the definition. There is nothing in the nature of possession to preclude more than one person having possession of a dog, so that within the ordinary meaning of the words of the statute there could also be more than one person within the definition by virtue of having simultaneous possession.
[25] It followed that the effect of the legislation was in some cases to make more than one person liable for the same injury. The question of whether more than one person can simultaneously qualify as the statutory “owner” of a dog in terms of s 2 of the Dog Control and Hydatids Act 1982 was answered in the affirmative.[17]
[26] The definition of the term “owner” in the current Act, which is set out at [8] above, was considered by this Court in Walker v Nelson City Council.[18] The Court said:[19]
[10] First, the effect of the definition of owner in s 2 is to impose statutory liability for controlling the behaviour of a dog upon any person who owns the dog and any person who has possession of the dog at any time, except in limited circumstances. Possession imports the element of control. That serves the legislative scheme of strict liability for breaches of the obligations under the Act. Nothing in the wording of the definition, or the Act generally, compels the conclusion that two or more people cannot be the co-owners of a dog at the same time.
[27] To similar effect is the decision of the High Court in Turner v South Taranaki District Council.[20] A dog bit and wounded a passing pedestrian. The dog was owned by Mr Turner. It was being walked by a boarder in Mr Turner’s house. Mr Turner was convicted under s 57(2) of the Dog Control Act of being the owner of a dog that attacked a person. Miller J said:[21]
[16]At 3–4.
[17]At 5.
[18]Walker v Nelson City Council [2017] NZCA 526.
[19]Footnote omitted.
[20]Turner v South Taranaki District Council [2013] NZHC 1603.
[21]Footnotes omitted.
[15] “Owner” receives an extended definition, meaning relevantly every person who owns the dog or has it in his or her possession, whether the dog is at large or in confinement. Several points may be made about this definition. First, it includes anyone who owns the dog in law. Such a person enjoys the usual incidents of ownership, which relevantly include rights to possess, manage and dispose, and correlative obligations to care for the animal and prevent harm to others.
[16] Second, the definition includes someone who has the dog in his or her possession. I take “possession” to have its normal meaning in criminal law, namely that the defendant knowingly had actual or potential physical control of a thing in circumstances showing that he or she assented to being in control. Under the Act possession does not depend on the dog actually being in confinement or under control at any given time. On the facts, Mr Schrider was an owner as defined, for he had chosen to assume control of the dog in order to exercise it in public.
[17] Third, “owner” includes every person who fits the definition. So Mr Turner and Mr Schrider were both owners when Floyd made the attack. Both men might have been charged. Mr Schrider was not.
[18] Fourth, the Act imposes stringent obligations upon dog owners without distinguishing between those who own dogs in law and those who merely possess them. For example, every owner of a dog must ensure that it is registered, exercised and cared for. Every owner must ensure that when the dog is on land or premises occupied by the owner it is either under the direct control of a person or confined to the land or premises. Every owner must carry a leash when with the dog in a public place. Every owner must ensure that the dog is kept under control at all times, and every owner must take all reasonable steps to ensure that the dog does not injure, endanger, intimidate or otherwise cause distress to any person or stock etc.
[19] Fifth, although these obligations attach to every owner some apply more readily to an owner in law than to a person in immediate possession, and vice versa. The Act does not preclude a court from recognising that when assessing the circumstances of any given offence.
[28] A different, narrower approach to the term “owner” was suggested in the recent decision of this Court in Auckland Council v Hill. The focus of that case was on the circumstances in which a Court may decline to make an order under s 57(3) of the Dog Control Act for the destruction of a dog that has attacked a person because the court is satisfied “that the circumstances of the offence were exceptional and do not warrant destruction of the dog.”
[29] That case did not depend in any way on the definition of the term “owner”: Mr Hill was the registered owner of the dog in question. But in the course of providing an overview of the Dog Control Act, the judgment set out the definition of the term “owner” and made the comment relied on by the District Court Judge, which we repeat for ease of reference:
[17] The extended definition of the term “owner” means that a person who has possession of a dog for more than 72 hours has all the duties of an owner under the Act, and commits an offence under s 57(2) if the dog attacks a person or an animal during that period. Conversely, during that period the actual owner of the dog is not exposed to criminal liability for attacks by the dog.
[30] That reading of the definition was also reflected in observations made in paras [47] and [68].
Our analysis of the term “owner”
[31] The observation in Auckland Council v Hill about who qualifies as an “owner” of a dog was clearly obiter. Nothing in that appeal turned on the extended definition of the term “owner” in s 2 of the Act. And this obiter comment was in our view clearly incorrect.
[32] We agree with, and adopt, the approach set out by Simon France J in the High Court quoted at [15] above. The definition of the term “owner” in s 2 of the Dog Control Act is somewhat convoluted, and we sympathise with the frustration expressed by the District Court Judge when attempting to construe it. But on a careful analysis, the text of the provision admits of only one reading. A person who has a dog in their possession, however briefly, is the owner of the dog for the purposes of the Act unless:
(a)that possession is for the purpose of controlling the dog or returning it to the owner; and
(b)the possession does not exceed 72 hours.[22]
[22]High Court judgment, above n 7, at [12].
[33] That reading is consistent with the purpose of the statute. As this Court explained in Walker v Nelson City Council, possession of a dog imports the element of control.[23] Imposing liability on the person who has the dog in their possession, even for a period less than 72 hours, serves the legislative scheme of strict liability for breaches of the obligations imposed by the Dog Control Act. The only exception is where a person has the dog in their possession for the (sole) purpose of preventing the dog causing injury, damage, or distress, or for the sole purpose of restoring a lost dog to its owner and that possession is for a period not exceeding 72 hours.
[23]Walker v Nelson City Council, above n 18, at [10].
[34] The 72-hour limit to the exception was inserted at the Select Committee stage of the Dog Control Bill 1995. It appears to have been intended to limit the operation of the exception, requiring a person wishing to avoid liability for a dog’s behaviour to return the dog to its true owner, or otherwise deal with it, within the 72-hour window. It seems clear that this amendment to the definition was not intended to create a new safe harbour protecting people from liability under the Act whenever they had a dog in their possession for less than 72 hours, regardless of the purpose for which the dog was in their possession.
Ms Low qualifies as an owner in this case
[35] It follows that Ms Low comes within the definition of the term “owner”, even though she had some of the dogs in her possession for less than 72 hours, unless she can bring herself within the exception in the extended definition.
[36] Mr Hannam submitted, albeit somewhat faintly, that Ms Low and other dog walkers have possession of dogs “for the purpose of preventing the dog causing injury, damage or distress”. We cannot accept that submission. Ms Low had possession of the dogs in her care for the purpose of looking after them generally. She had not taken possession of them in order to prevent them causing injury, damage or distress. It is not enough that while she had the dogs in her possession in order to care for them generally, one of her objectives was to prevent them causing injury, damage or distress. That is not a natural reading of the provision, and that reading would significantly undermine the purpose of the Act.
[37] We therefore agree with the High Court Judge that Ms Low was the owner of the dogs in her care for the purposes of the Dog Control Act. The appeal to this Court must be dismissed.
Result
[38] The application for leave to appeal is granted.
[39] The appeal is dismissed.
Solicitors:
Hannam & Co Lawyers Ltd, New Plymouth for Appellant
C & M Legal, New Plymouth for Respondent
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