Newlands v Nelson City Council

[2020] NZHC 447

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CIV-2019-442-63

[2020] NZHC 447

UNDER

the Declaratory Judgments Act 1908

IN THE MATTER OF

an application for a declaratory judgment to clarify the liability imposed by s 5(1)(g) of the Dog Control Act 1996

BETWEEN

DONNA MARY NEWLANDS

Plaintiff

AND

NELSON CITY COUNCIL

Defendant

Hearing:	26 February 2020
Appearances:	K E Mitchell and J Marshbanks for Defendant No appearance by self-represented Plaintiff
Judgment:	9 March 2020

JUDGMENT OF ASSOCIATE JUDGE LESTER

This judgment was delivered by me on 9 March 2020 at 4.30pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar 9 March 2020

NEWLANDS v NELSON CITY COUNCIL [2020] NZHC 447 [9 March 2020]

[1]    Nelson City Council (“NCC”) applies to strike out Ms Newlands’ statement of claim in which she seeks orders under the Declaratory Judgments Act 1908.

[2]    In preparing this judgment, I have been greatly assisted by a judgment of Cull J in Newlands v Nelson City Council.1

Background

[3]    Ms Newlands is charged with two offences under s 57(2) and s 33EC of the Dog Control Act 1996 (“the Act”), namely that she is the owner of a dog, Baloo, which attacked a domestic animal, a dog named Jasmine, and that Baloo is classified as a menacing dog and was in a public place (Cable Bay Beach) without a muzzle.2

[4]    The issue Ms Newlands pursued before Cull J and raised in this proceeding is whether s 57(2) of the Act creates an offence of strict liability (“the issue”).

[5]    Ms Newlands first raised the issue at a case review hearing of the charges against her in the District Court. She requested in effect the hearing of a preliminary point at issue. The Judge declined to determine the issue as a preliminary point, considering it was best determined in the course of the hearing.

[6]    Ms Newlands applied for leave to appeal that decision and it was that application for leave to appeal which resulted in the decision of Cull J which I have already referred to.

[7]    A more detailed background to the offence is set out in her Honour’s judgment, and I need not repeat it here.

1      Newlands v Nelson City Council [2019] NZHC 1692.

2      Newlands, above n 1, at [2].

The issue in the District Court

[8]    Ms Newlands’ argument is that it is contrary to the New Zealand Bill of Rights Act 1990 (“NZBORA”) for s 57(2) of the Act to be treated as a strict liability offence. She asked the District Court to determine pre-trial whether or not there was a mens rea element to the offence.

[9]    Cull J determined that there was no right of appeal from the District Court decision and then went on to determine whether, if a right of appeal existed, the question Ms Newlands wanted to raise was a question of law. Her Honour concluded that the question of law as framed by Ms Newlands  required the determination at     a substantive hearing of the facts and law.3

[10]   Cull J then went on to find that if there had been a right of appeal, she would have declined leave because her Honour determined that it was well settled that an offence under s 57(2) was one of strict liability.4

[11]   Her Honour’s judgment was released on 18 July 2019. On 25 September 2019 Ms Newlands brought the present Declaratory Judgments Act proceeding. Under the heading “Questions of law for determination” Ms Newlands seeks declarations on the following:

(a)What is the liability imposed by s 5 of the Act in respect of the offence of attack?

(b)What is the mens rea element to the offence of attack under s 57(2) of the Act?

(c)Are all rules and principles of the common law that render any circumstances a defence applicable as per  s 20(1)  of  the  Crimes  Act 1961?

3 At [33].

4      At [37]-[38].

(d)Is the prosecution required to prove causative negligence and, if so, does this agree with the common law rule that there is no criminal liability without proof of want of care  –  (per  Blackburn J  in  Rylands v Fletcher, and Lord Hale in Pleas of the Crown)?5

(e)Are absolute and strict liability inconsistent with the NZBORA s 25(c)?

Strike out application

[12]   Here NCC has applied to strike out the statement of claim. NCC argues that the Declaratory Judgment Act statement of claim does not disclose a reasonably arguable cause of action as the questions sought to be raised have already been the subject of previous higher court determinations and have been settled law for some time.

[13]   It is said the proceeding is an abuse of process as it is a collateral challenge to the District Court’s refusal to address the issue pre-trial and it follows also a collateral challenge to the decision of Cull J.

[14]   As  the  charges  against   Ms Newlands  are  set  down  for  a  hearing  on   18 March 2020, it is also said that this proceeding will cause prejudice and delay. It is said that the District Court is seized of the matter. A hearing is scheduled at which Ms Newlands can raise the legal arguments she wishes and that is the appropriate forum to raise the issue as  determined  by the  District  Court  and  confirmed  by her Honour  Cull  J.   It  is  submitted  that  this  Court  should  not,  in  the  guise  of a Declaratory Judgments Act application, interfere with the process of the District Court hearing.

Notice of opposition

[15]   Ms Newlands’ notice of opposition does not directly engage with the proposition that she is seeking, in effect, to sidestep the rulings made in the District Court and the High Court or that the hearing of the charges against her is where she

5      Rylands v Fletcher [1866] LR 1 Exch 265; Sir Matthew Hale The History of the Pleas of the Crown

(London, 1736).

should raise the questions she wants addressed. Her notice of opposition asserts that the questions she wants to raise are appropriate questions of statutory interpretation to refer to this Court under the Declaratory Judgments Act.

[16]   Ms Newlands says she will be prejudiced if she does not have a chance to seek declarations as to the questions she has raised.

[17]    The legal principles applying to a strike out are well established. The cause of action must be clearly untenable, being “so certainly or clearly bad” that it should be precluded from going forward and the Court can be certain that it cannot succeed.6

[18]   The NCC says in this case there is no reasonably arguable cause of action because the question of whether s 57(2) is a strict liability offence has already been conclusively determined by the courts. Counsel submits that the question has been the subject of extensive litigation between NCC and individual called Walker in a series of cases.7

[19]   The Court of Appeal in Epiha v Tauranga City Council confirmed that s 57(2) is a strict liability offence.8 That decision was followed in the Walker v Nelson City Council proceedings.9 When the Walker proceedings reached the Court of Appeal, that Court declined leave for a further appeal and referred to Epiha.10

[20]   The short point is that Ms Newlands raises no new argument in respect of this issue. In Epiha the Court of Appeal noted that the strict liability analysis of s 57 extended back at least as far as 1984 in the context of former legislation.11

[21]   Given the law has been settled for an extended period and the fact the Court of Appeal had an opportunity to re-examine the issue in its leave application in Walker,

6      Attorney General v Prince [1998] 1 NZLR 262 (CA), endorsed by the Supreme Court in

Couch v Attorney General [2008] NZSC 45, [2008] 3 NZLR 725 at [33].

7      Walker v Nelson City Council [2017] NZCA 526.

8      Epiha v Tauranga City Council [2017] NZCA 511, [2017] NZAR 1664 at [6].

9      Walker v Nelson City Council, above n 7 at [21]-[25].

10     At [10], [15] and n 5.

11     Epiha, above n [8] at [6].

I accept the submission of counsel for NCC that the strict liability/mens rea question is settled law. In short, there is no issue to be addressed.

[22]   As to question (c) of Ms Newlands’ application, that is applicable defences available under s 20(1) of the Crimes Act 1961, this has also been determined by the Court.  Williams J in Walker  v Nelson City Council said that s 20 confirmed that   the total absence of fault defence is available to a s 57(2) charge, albeit the standard to be met is a high one.12 Cull J also dealt with this point directly in her judgment in Newlands v Nelson City Council.13

[23]   Question (a) raised by Ms Newlands refers to s 5 of the Act. At [40] of Cull J’s decision, she recorded:

The Court in Tauranga City Council v Julian held that when the Act was viewed as a whole, it was not intended that s 5 would provide a statutory defence to any of the operative provisions of the Act,14 and s 57(2) is therefore not qualified by a requirement to “take all reasonable steps”.

[24]   As to question (d) that related to the strict liability question, but again Cull J touched on this issue referring to the High Court decision in Walker v Nelson City Council, where the High Court said:15

The owner need not intend an attack. Nor need she be reckless or negligent in that regard. But the owner has a defence at common law if she can show total absence of fault.

[25]   Finally, there is the question at [11(e)] as to whether absolute and strict liability offences are inconsistent with NZBORA. In a sense, this question assumes that s 57(2) is a strict liability offence. Even if s 57(2) was inconsistent with NZBORA (and I am not saying that it is), such would not afford Ms Newlands a defence. As recorded in Epiha, strict liability under s 57(2) represents priority being given to public welfare in the public interest.16

12     Walker v Nelson City Council, above n 7 at [21]-[25].

13     Newlands v Nelson City Council, above n 1, [39].

14     Tauranga City Council v Julian [2014] NZHC 2132, [2014] NZAR 1322 at [22].

15     Walker v Nelson City Council, above n 7, at [21].

16     Epiha v Tauranga City Council, above n 8, at [7].

[26]   Not only do I consider that the claims are untenable, but they are in my opinion, an abuse of process intended to be a collateral challenge to the decisions in the District Court and Cull J’s decision.17 In plain terms, Ms Newlands seeks to side-step the effect of those judgments by  recasting  the  issue  under  the  Declaratory  Judgments Act 1908. Given both the District Court and Cull J determined the issue falls to be determined in the context of the scheduled hearing of the charges against her, this proceeding is aimed at avoiding those rulings.

[27]That is sufficient to deal with the application.

[28]The application to strike out Ms Newlands’ statement of claim is granted.

Costs

[29]   The application sought indemnity costs but at the hearing counsel was content to seek costs on a 2B basis plus disbursements as fixed by the Registrar. There is no prejudice to the plaintiff in costs at a lesser level being sought.

[30]   Accordingly, there is an award of costs against Ms Newlands in respect of the proceeding and the application on a 2B basis together with disbursements as fixed by the Registrar.

Addendum

[31]   I record that Ms Newlands did not appear for the hearing of this application. The fixture notice for the hearing was emailed to Ms Newlands’ email address  on  17 December 2019 which she gave as an address for service in her statement of claim and the Court followed up on 17 February 2020 with, in effect, a reminder of the hearing and advising of the courtroom in which the hearing was to be held. Counsel for NCC served their submissions. The hearing did not commence until 10.10 am

17     Dotcom v District Court at North Shore [2017] NZHC 3158 at [25].

against the possibility that Ms Newlands had been held up. There was no contact with the Court from Ms Newlands, so the application proceeded in her absence.

Associate Judge Lester

Solicitors:

Tasman Law, Richmond for Defendant

Copy to:
Ms Donna M Newlands, Nelson (self-represented Plaintiff)