Orr-Walker v Auckland District Council - [2013] NZHC 1541

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2013-404-47 [2013] NZHC 1541

BETWEEN TAMSIN ORR-WALKER Appellant

ANDAUCKLAND COUNCIL Respondent

Hearing: 14 June 2013 (by telephone) Counsel: P L Borich for Appellant
V Tamatea for Respondent

Judgment: 25 June 2013

JUDGMENT (NO. 2) OF HEATH J

This judgment was delivered by me on 25 June 2013 at 2.00pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

ORR-WALKER v AUCKLAND COUNCIL [2013] NZHC 1541 [25 June 2013]

Introduction

[1] On 5 December 2012, Ms Orr-Walker pleaded guilty, in the District Court at

Waitakere, to being the owner of a dog (Wolfe) that attacked a four year old boy.1

Judge Callander, after hearing submissions, exercised his discretion to discharge Ms

Orr-Walker without conviction.2

[2] Ms Orr-Walker’s plea of guilty was sufficient to satisfy the District Court that the dog had attacked a person. That being so, the Court was required to “make an order for the destruction of the dog unless it [was] satisfied that the circumstances of the offence were exceptional and [did] not warrant destruction of the dog”.3

[3] Following receipt of submissions in writing on that issue, in a reserved judgment delivered on 13 February 2013, Judge Callander made an order that the dog be destroyed.4 Ms Orr-Walker appealed against the destruction order. I dismissed the appeal, for reasons given in a judgment delivered on 17 April 2013.5

The recall application

[4] Following delivery of that judgment, Ms Orr-Walker applied for “recall or correction”. She complained about the summary of the facts on which I based my judgment; in particular, observations that the “dog was on a short leash”;6 the victim was “about two metres away”;7 the dog “abruptly and aggressively snarled”;8 and the
dog “suddenly lunged” at the boy.9

[5] In an affidavit sworn in support of her application, Ms Orr-Walker explained the reasons for her complaint:

1      Dog Control Act 1996, s 57(2).
2      Sentencing Act 2002, s 106. See also Auckland Council v Orr-Walker DC Waitakere CRI-2012-
090-8245, 5 December 2012 at para [1].
3      Dog Control Act 1996, s 57(3).
4      Auckland Council v Orr-Walker DC Waitakere CRI-2012-090-637, 13 February 2013 at para
[22].
5      Orr-Walker v Auckland Council [2013] NZHC 784.
6 Ibid, at para [5].
7 Ibid, at para [7].
8 Ibid, at para [8].
9      Ibid.

3. WITH respect to the Judge:

(a) The statement in paragraph 2(a) above that my dog was on a “short leash” could not take into account that, because another of our dogs had gnawed it, the leash by which my dog Wolfe was secured was effectively only 45cm long as I was holding it between the gnawed portion and Wolfe, and he never strained at it.

(b) The statement in paragraph 2(b) above must have been taken from a draft Summary of Facts which was on the file. That draft Summary was incorrect. The corresponding portion of the agreed Summary of Facts said that the child was “beside his mother”.

(c)…

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: [2013] NZHC 1541
Decision Date: 25 June 2013

CaseChat Overview and Summary

In the case of Orr-Walker v Auckland District Council, the High Court of New Zealand was asked to review the decision of a District Court Judge who had ordered the destruction of a dog following an attack on a child. Ms Orr-Walker, the dog's owner, appealed the decision, arguing that the facts upon which the Judge based his decision were incorrect and that she should have had an opportunity to provide evidence to support her version of events. The legal issues before the Court were whether the Court had the jurisdiction to recall its earlier judgment and, if so, whether there were sufficient grounds to do so in this case.

The Court found that it did indeed have the jurisdiction to recall its earlier judgment where, for some very special reason, justice required that the judgment be recalled. In this case, the Court found that there were indeed special reasons for recalling the judgment. The Judge had based his decision on a summary of facts that did not accurately reflect the position put forward by Ms Orr-Walker. This was significant because the Judge had not given the parties an opportunity to present evidence to support their respective versions of events. The Court held that where the opportunity to present evidence on disputed facts is denied, there may be a very special reason for recalling the judgment. The Court also found that the error in the summary of facts was material because it could have affected the outcome of the case.

In terms of the legal principles governing the destruction of a dog following an attack, the Court found that the relevant legislation required the Court to order destruction of the dog unless it was satisfied that the circumstances of the offence were exceptional and destruction was not warranted. The Court found that post-offence considerations could not be taken into account in determining whether destruction was appropriate. However, the Court did find that there might be circumstances in which a District Court could decline to make a destruction order, even in the absence of exceptional circumstances relating to the offence.

Ultimately, the Court recalled its earlier judgment, allowing the appeal and remitting the question of whether an order for destruction of the dog should be made under s 57(3) of the Act for reconsideration by a District Court, after a disputed fact hearing. The order discharging Ms Orr-Walker without conviction was not affected by the Court's decision.

Orders