New Plymouth District Council v Low

[2022] NZHC 1154

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2022-443-33

[2022] NZHC 1154

BETWEEN

NEW PLYMOUTH DISTRICT COUNCIL

Appellant

AND

ESTELLE GRETA LOW

Respondent

Hearing:

24 May 2022

Counsel:

J E Bourke for Appellant

J C Hannam for Respondent

Judgment:

24 May 2022

JUDGMENT OF SIMON FRANCE J

[1]                  The applicant seeks leave to appeal the decision of the District Court dismissing charges under s 147 of the Criminal Procedure Act 2011.1 The charges were laid under the Dog Control Act 1996 (the Act), and the issue concerns the correct interpretation of the term “owner”. The respondent accepts that a question of law of general importance arises. I agree and leave to appeal is given.

[2]                  The definition of “owner” is found in s 2 of the Act, with the issue being the correct interpretation of the extended definition in (b):

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

1      New Plymouth District Council v Low [2022] NZDC 5264.

NEW PLYMOUTH DISTRICT COUNCIL v LOW [2022] NZHC 1154 [24 May 2022]

(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

[3]                  In the present case when the incident occurred that is the subject of the charges, Ms Low was walking five dogs. Two of the dogs were owned by her, and the other three by clients of her dog-care, dog-training and dog-walking business. The issue is whether a day-care situation such as applied here makes Ms Low owner of the dog at the relevant time within the meaning of the extended definition.

[4]                  The focus is the applicability of the 72-hour limitation. In supporting the District Court judgment to the same effect, Mr Hannam submits the time limit should be read as applying to the whole paragraph so that an owner cannot be:

(a)someone who has possession for less than 72 hours; or

(b)someone who has possession for the purpose of preventing the dog causing injury damage or distress, or for the purpose of restoring a lost dog to its owner.

[5]                  Support for this comes from a Court of Appeal observation in Auckland City Council v Hill:2

[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.

2      Auckland City Council v Hill [2020] NZCA 52, [2020] 3 NZLR 603 at [17].

[6]                  That passage apparently reads “owner” as being limited to those who possess for more than 72 hours.3

[7]                  A different reading can be found in Walker v Nelson City Council where a different Court of Appeal panel observed:4

[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.

[8]                  The effect is to capture as an owner all persons who have possession other than those who fit within the limited exception.

[9]                  The applicant submits High Court authority favours the Walker interpretation. In Haskett v Rotorua District Council Fisher J observed:5

It will be seen that one of the essential elements of an offence under s 56(4) is that the defendant must be the “owner” of the dog. That expression has an extended definition pursuant to s 2 of the Act. “Owner” in relation to any dog embraces a number of categories including one who “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”.

[10]               To like effect is the comment of Miller J in Turner v South Taranaki District Council:6

[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 possession, manage and dispose, and correlative obligations to care for the animal and prevent harm to others.

3      It can be noted that the passage does not expressly comment on possession for less than 72 hours, but the inference is that the extended definition is limited to possession for more than 72 hours.

4      Walker v Nelson City Council [2017] NZCA 526 at [10].

5      Haskett v Rotorua District Council HC Rotorua AP 76/26, 7 December 1992 at 4.

6      Turner v South Taranaki District Council [2013] NZHC 1603, [2013] NZAR 1046 at [15]–[16].

[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.

[11]               It can be noted the observations in Hill were obiter. The issue there was the correct approach to be adopted under s 57(3) of the Act which concerns exceptional circumstances allowing a Court to not order destruction of a dog. The comment concerning ownership was made in the context of outlining the statutory scheme but it was not a point in issue.

[12]               I agree with the approach of the High Court decisions which are consistent with Walker. For the purposes of the 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]               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.

[15]               The judgment under appeal followed the obiter comment in Hill, and for this reason is in error.

[16]               For completeness I also observe concerning one of the dogs in relation to which charges were laid, the Judge appears to have overlooked that Ms Low was the owner. The appeal would necessarily have succeeded on that limited point (without engaging whether that issue standing alone would merit a grant of leave).

Conclusion

[17]The application for leave to appeal is granted.

[18]               The appeal is allowed. The charges were incorrectly dismissed under s 147 of the Criminal Procedure Act, and are reinstated.

Simon France J

Solicitors:

Crown Solicitor, New Plymouth for Appellant Hannam & Co, New Plymouth for Respondent