Naik v Auckland Council - [2020] NZHC 2877

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-335

[2020] NZHC 2877

BETWEEN
ELIZABETH NAIK

Appellant

AND

AUCKLAND COUNCIL

Respondent

Hearing: 2 November 2020

Appearances:

No appearance by or on behalf of appellant V-L Schaaf for Respondent

Judgment:

3 November 2020

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 3 November 2020 at 12:00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
V-L Schaaf, Auckland Council

NAIK v AUCKLAND COUNCIL [2020] NZHC 2877 [3 November 2020]

[1] Ms Elizabeth Naik (the appellant) appeals against an order made by Judge A C Roberts in the District Court at Auckland on 3 July 2020 for the destruction of the appellant’s male Mastiff-cross dog named “Juno”.1

Background

[2] On 25 August 2018, at approximately 11.30 pm, the complainant woke to the sound of dogs barking outside her bedroom window. The complainant looked out the window and saw the appellant at the bottom of the driveway yelling at the barking dogs. The complainant could not see the dogs, but she could hear the sound of the dogs attacking something. When she heard a cat’s scream, she ran outside. She saw Juno underneath her truck and the other of the appellant’s dogs circling her truck, barking. The complainant and her husband tried yelling at the dogs in an attempt to break off the attack. After several minutes both of the dogs retreated back down the complainant’s driveway. The complainant then found her cat under the truck, severely injured, but still breathing.

[3] The complainant immediately took her cat to a veterinary clinic for urgent attention. However, the severity of the injuries it had sustained as a result of Juno’s attack were such that it was beyond treatment and had to be euthanised. Juno was seized and impounded but subsequently released on strict conditions relating to his management. The appellant was charged with owning a dog that attacked a domestic animal under s 57(2) of the Dog Control Act 1996 (the Act):2
57 Dogs attacking persons or animals

…

(2)The owner of a dog that makes an attack [on a domestic animal inter alia] 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

1 Auckland Council v Naik [2020] NZDC 12733.
2 Dog Control Act 1996, s 57(2); maximum penalty fine not exceeding $3,000 in addition to any liability incurred for any damage caused by the attack and mandatory destruction of the dog.

the offence were exceptional and do not warrant destruction of the…

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: [2020] NZHC 2877
Decision Date: 3 November 2020

CaseChat Overview and Summary

Ms Elizabeth Naik appeals against an order made by the District Court for the destruction of her dog, Juno, a Mastiff-cross, following an attack on a cat. The appellant was charged under the Dog Control Act 1996 for owning a dog that attacked a domestic animal. The primary legal issue in this case is whether the District Court erred in making an order for the destruction of Juno. The appellant argues that the circumstances of the attack were exceptional and do not warrant destruction of the dog. The respondent contends that the attack was not exceptional and the destruction order was appropriate.

In assessing whether the circumstances of the offence were exceptional, the court considered the definition provided by the Court of Appeal in Auckland Council v Hill. According to Hill, exceptional circumstances are an unusual or one-off occurrence that is most unlikely to be repeated. The court found that Juno's attack on the complainant's cat demonstrated a tendency towards unpredictable aggressive and dangerous behaviour, indicating a real risk of repetition. The appellant's proposed measures, such as taking a dog owner's course or muzzling Juno in public, do not negate the risk of future attacks. Given these findings, the court upheld the District Court's order for the destruction of Juno. The appeal is dismissed.

Orders