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 to be seized or could stay at the property.  It is of note that while in the pound, Louis engaged in no untoward behaviour.

District Court Decision

[6]      In the District Court, Judge Callaghan acknowledged that there had been no further incidents since the two described above.  The Millars deposed that Louis had not acted in this way previously and they maintained that these were isolated incidents

caused by the stress of the relocation.  They say that the dog is an integral member of the family and is not used to being separated from its owner, as it was during the relocation.

[7]      The Judge noted a 7 September 2017 affidavit which was before the Court from a dog trainer, Mr Gerrit Oostendorp, who assessed Louis. The trainer’s view was that the attack was the result of stressors and Louis was not under proper control at the time of the attack.  Mr Oostendorp stated that the owners had demonstrated a high level of responsibility and cooperation and that “training and behaviour modification will provide good opportunities to desensitise the dog to the impact of threat by or desire to threaten another dog for whatever reason”.  He believed, too, that the dog would have to be kept very well secured to ensure it could not repeat this behaviour.

[8]      In considering s 57(3) of the Act, Judge Callaghan said that ‘exceptional’ is a high standard and there is a requirement to consider whether or not there is a possibility of repeat. The relevant factors were that Louis left the property shortly after he arrived there and attacked another animal.  Two weeks later he did so again, causing serious injuries. There were steps taken between the first and second incidents, but these had not prevented the attack occurring.  The Judge was unable to find the circumstances to be exceptional.  He considered that Louis showed an unpredictable side and the behaviour is exacerbated by the fact that the dog, when given the opportunity, did attack.

[9]      The Judge therefore ordered Louis to be destroyed.

Law

[10]     The relevant provisions under section 57 of the Act provide:

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.

…

[11]     The issue in the present appeal is whether the Judge correctly concluded that the circumstances of the attack were not exceptional in terms of s 57(3) and that they did not warrant destruction of the dog.

[12]     The meaning to be given to the closing words in s 57(3) has been considered in several decisions of the High Court.3  The words “exceptional circumstances” create a high threshold.  This Court has said in the past that “exceptional” means “unique, special or substantially unusual although the circumstances need not be extreme”.4    It has also been said that this high threshold is such that the owner of a dog that has attacked a person will find it difficult to meet that requirement.5  In what has been seen as a leading decision in this area, Halliday v New Plymouth District Council, Heath J held that, under s 57(3), the Court should focus its attention on the need for a predictive assessment of whether the dog is likely to behave in a similar way in the future.6   In making that assessment, the Court is entitled to have regard to: 7

(a)        the nature of the attack, including whether injury resulted;

(b)      the past history of the dog and its owner;

(c)       the steps taken to prevent such an attack occurring; and

3      See for example: Halliday v New Plymouth District Council HC New Plymouth CRI-2005-443-

011, 14 July 2005; Orr-Walker v Auckland District Council [2013] NZHC 1541; Jorion v Kapiti

District Council HC Palmerston North CRI-2010-454-022, 4 August 2010.

4      Pomona v Police (HC) Dunedin AP 8/1997, 8/4/1997.

5      Te Kahu v Police HC Invercargill AP23/99 1 September 1999; Peteru v Manukau City Council

HC Auckland A70/00 6 July 2000; Halliday v New Plymouth District Council, above n 3.

6 At [44].

7      Halliday v New Plymouth District Council, above n 3, at [48].

(d)the reasons why preventive steps taken by the owner failed to prevent the attack occurring.

Analysis

[13]     I will begin by considering the Halliday factors. The nature of the unprovoked attack involved Louis exiting the appellant’s property and, upon finding another dog, pushing through a metal gate in order to attack it.  It is accepted that Louis has no previous history of attacks.  Since arriving in New Zealand, however, he escaped and attacked other dogs twice in two weeks.   The Millars, without question, seem to be responsible dog owners and they attempted to secure their property to prevent Louis escaping. However, this was not sufficient to stop him getting out.  While they then moved to a house in the country that may be more secure and is possibly away from strange dogs, there was still a risk that he might attack if given the opportunity.  And that situation has changed again, with the Millars since late February 2018 relocating back into town in Invercargill, as I note at [20] following.

[14]     Judge Callaghan noted the dog trainer’s opinion that “more training would be required to prevent any behaviour being repeated” and that Louis needs to be kept well secured. The Judge found this concerning and to an extent I agree.

[15]     Destruction of a dog which has attacked or caused serious injury to another dog will be unwarranted only if the Court is satisfied that the dog was unlikely to attack or cause serious injury again.  This is because the underlying principle of the Act seems to be that past behaviour is regarded as the best predictor of future behaviour.  The fact that Louis escaped and attacked a dog (without causing serious injury) two weeks before, and then attacked again, would seem to indicate that there is a real risk that, if given the opportunity, he may attack again.

[16]     The  main  factor  the  appellant  identifies  to  suggest  the  present  case  is exceptional is the stress brought about by Louis’s recent relocation, his air travel and the time spent in quarantine. The appellants point to the fact that he has not previously been aggressive and that there have been no issues since, despite him interacting with other dogs while impounded.  As Louis will not be relocated in such a major way again, they argue that the circumstances giving rise to the attack are exceptional and

that there is little risk of him attacking another animal in the future.  This argument is supported by the dog trainer’s assessment that being shipped from Vanuatu to New Zealand in a cage and on an airplane can be unsettling for a dog.

[17]     The hallmarks of cases in which dogs have escaped destruction seem to me to involve situations where for example very responsible dog owners with dogs that are ordinarily controlled, for understandable reasons, lose control of the dog on a particular occasion.8  For example, in Tekotia v Manukau City Council the dog, Tama, was taken for a walk by Mr Tekotia’s daughter.9    While off his lead, Tama ran at another dog and bit his leg.  On appeal, the Judge found that the circumstances were exceptional because Tama had only ever been taken for a walk while Mr Tekotia or his wife were present and always on a lead.  The daughter here had taken him out without permission. Tama had no history of aggression. The Judge considered that the fact that there had been no previous complaints meant that the circumstances were exceptional. Therefore, the order to destroy Tama was quashed.

[18]     In Claridge v Auckland Council,10 the appellant’s dog, Lizzie, jumped a gate to an adjoining property and attacked the complainant’s dog, who was badly injured and lost its eye.  The gate in question joined the two properties.  Previous occupants of the adjoining property (prior to the complainant who had recently moved in), had allowed Lizzie free run of their property. The Judge considered it was understandable that Lizzie viewed the complainant’s property as hers and that she viewed the new dogs as a threat.  The gate had since been replaced with a high wall so there was no further threat.  He found that the circumstances were exceptional and Lizzie was not a danger.

[19]     In light of the case law and the factors I have outlined above, I do not consider that the present circumstances of this offending are sufficient to meet the standard of “exceptional”, nor that the almost mandatory order for destruction of Louis may not be warranted here.   Unlike Tekotia and Claridge, Louis acted aggressively on two

separate occasions, the second involving serious injuries to the Jack Russell Terrier,

8      Snodgrass v Kapiti Coast District Council [2014] NZHC 1333 at [41].

9      Tekotia v Manukau City Council HC Auckland CRI-2010-404-234.

10     Claridge v Auckland Council [2013] NZHC 1806.

Penny.  He did so by escaping the property, despite attempts to prevent him doing so. That makes the situation more serious than that in Tekotia where Tama was taken out for a walk without proper supervision. It is also, in my view, more serious than Lizzie jumping into a neighbour’s yard to attack another dog in Claridge.   In that case too, as Lizzie was, in her mind, no doubt, merely protecting what was previously her own property.  The test for exceptional circumstances is a high one, and, given the two different acts of aggression, the present case simply cannot be considered one that meets this test.

[20]     For completeness, one additional matter is appropriately mentioned here. This is the fact that became apparent at the 5 March 2018 hearing of this appeal before me, that since August 2017 Louis has, with the respondent’s consent, remained in the appellant’s custody throughout.   This has been at the appellant’s rural property at West Plains Road until 21 February 2018 and then, from 22 February 2018 relocated to a new property at 30 Duke Street, Invercargill, this latter property since inspected and approved by a Dog Control Officer of the respondent Council.  I am told that this has been without incident. This presumably provides some confirmation for the view, urged upon me by Mr Chapman for the appellant, that Louis is a dog now clearly under the control of its owner and accordingly the suggestion is made that he shows little risk of any future out of control attack.

[21]     Whilst this is commendable and must reflect well on the Millars and their efforts with Louis, regrettably that does not to a significant extent assist the appellant here. The authorities are clear, as Clifford J notes in Snodgrass v Kapiti Coast District Council11 that:12

Factors which post-date the [s 57] offence are not to be considered at this stage [when determining whether the circumstances of an offence were exceptional] as “the circumstances of the offence cannot include any circumstance that has not yet occurred.”

[22]     According to the affidavit of the appellant’s husband, Daryl Millar, the Millars own two other dogs. Louis is their third dog and is clearly much loved by the Millars.

11     Snodgrass v Kapiti Coast District Council [2014] NZHC 1333 at [38].

12     Whangarei District Council [2014] NZHC 424 at [14]; Orr-Walker v Auckland City Council

[2013] NZHC 784 at [22]; Halliday v New Plymouth District Council, above n 3 at [43].

Unfortunately, the law is clear that dogs who have proven themselves to be a danger to other animals or people must be destroyed unless the circumstances of the offending were exceptional.  There are no exceptional circumstances here which can override that requirement.

Result

[23]     I consider that Judge Callaghan, being bound by the statutory discretion in s

57(3) of the Act, did not err in finding that no exceptional circumstances existed here that warranted his refusing an order that Louis be destroyed.  This appeal is therefore dismissed.

...................................................

Gendall J

Solicitors:

Cruickshank Pryde, Invercargill

Copy to Invercargill City Council