Millar v Invercargill City Council - [2018] NZHC 335

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2017-425-000043 [2018] NZHC 335

BETWEEN
LINDA MILLAR

Appellant

AND

INVERCARGILL CITY COUNCIL Respondent

Hearing: 5 March 2018

Appearances:

R T Chapman for Appellant
M D Morris for Respondent

Judgment:

7 March 2018

JUDGMENT OF GENDLL J

Introduction

[1] On 18 September 2017, following a guilty plea, Judge Callaghan in the District Court at Invercargill sentenced the appellant, Ms Millar for being an owner of a dog that has attacked a domestic animal.1 Ms Millar was fined $400 and ordered to pay court costs of $130.2 Furthermore, under s 57(3) of the Dog Control Act 1996, (the Act) the Judge made an order for the destruction of the dog, as he was unable to be satisfied that the circumstances of the offence were exceptional. Ms Millar appeals, but only against the Judge’s destruction order, submitting that the Judge erred in law
by finding that the circumstances were not exceptional.

1 Dog Control Act 1996, s 57.
2 Invercargill City Council v Millar [2017] NZDC 21143.

MILLAR v INVERCARGILL CITY COUNCIL [2018] NZHC 335 [7 March 2018]

Background

[2] Ms Millar owns the dog in question, a male German Shepherd cross named Louis. Louis previously lived in Vanuatu with Ms Millar and her husband. When they relocated to New Zealand, he was transported to Auckland. He stayed there in quarantine between 1 and 10 March 2017. On 11 March 2017, he was flown to Queenstown where the Millars picked him up and moved him to their temporary accommodation in Invercargill.

[3] Two days later, on 13 March 2017, Louis escaped the property which was in an urban location and was involved in a minor altercation with another dog. Following that, Mr Millar checked the property, which was fenced with hedges, some of which had fences inside them. The Millars had been given the impression that the property was secure for animals. Mr Millar obtained some steel reinforcing mesh and plugged some discrepancies in the hedges. Notwithstanding that work, Louis later escaped the property again, giving rise to the present offending.

[4] On 4 April 2017, the attacked dog, a Jack Russell Terrier called Penny, was in the yard of its house. The owner, who was inside, was alerted by the barking of her dogs. She looked out and saw that her driveway gates were bent inward. She then saw a woman trying to catch Louis. By the time she got out of the house, Louis and the woman were gone and one of her dogs, Penny, was injured. She then took Penny to the vet. The dog required significant stiches just above its front left paw.

[5] After the attack, the Millars moved to a rural property. The council insisted on further additional fencing, which the Millars carried out. There was then a series of different decisions by the council on whether or not there would be a prosecution, and whether or not Louis was…

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: [2018] NZHC 335
Decision Date: 7 March 2018

CaseChat Overview and Summary

The High Court of New Zealand was asked to determine whether the District Court Judge had correctly concluded that the circumstances of a dog attack were not exceptional and warranted the destruction of the dog, Louis, under section 57(3) of the Dog Control Act 1996. The appellant, Ms Millar, owner of Louis, appealed against the Judge’s destruction order, arguing that the circumstances were exceptional due to the stress caused by the dog’s relocation and the lack of previous aggressive behavior.

The legal issue before the Court was whether the District Court Judge had correctly applied the statutory criteria for determining if the circumstances of the dog attack were exceptional. The Court considered the relevant factors, including the nature of the attack, the dog's history, steps taken by the owner to prevent such incidents, and the reasons for the failure of those steps. The Court also examined relevant case law, which established that 'exceptional circumstances' require unique, special, or substantially unusual conditions, and that past behavior is the best predictor of future behavior.

The Court found that the circumstances of the present case did not meet the high threshold for being deemed exceptional. Louis had attacked another dog on two separate occasions, with the second incident resulting in serious injury. The Court noted that while the dog had not previously shown aggressive behavior, the two incidents of aggression, coupled with Louis's ability to escape the property, indicated a real risk of future attacks if given the opportunity. The Court also highlighted that the exceptional circumstances must be present at the time of the offence and could not be based on post-incident events, such as Louis remaining under control in the appellant’s custody since August 2017.

The appeal was dismissed, and the order for the destruction of Louis was upheld.

Orders