Page v Auckland Council - [2022] NZHC 951

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-404-83

[2022] NZHC 951

BETWEEN
DARRYL PAGE

Appellant

AND

AUCKLAND COUNCIL

Respondent

Hearing: 3 May 2022

Appearances:

R Rao and H Johnson for the Appellant

V Schaaf and L Dempsey for the Respondent

Judgment:

6 May 2022

JUDGMENT OF GORDON J

This judgment is delivered by me on 6 May 2022 at 12:00 pm.

.....................................................
Registrar / Deputy Registrar

Counsel: Rajiv Rao, Inder Lynch, Manukau Solicitors: Auckland Council

PAGE v AUCKLAND COUNCIL [2022] NZHC 951 [6 May 2022]

Introduction

[1] The appellant, Darryl Page, pleaded guilty to a charge laid under s 57(2) of the Dog Control Act 1996 (the Act), of owning a dog that attacked a domestic animal. Mr Page now appeals an order made by Judge K Grau on 14 February 2022 at the Manukau District Court for the destruction of the dog concerned, his Rottweiler, “Jazz”.1

[2]At sentencing Mr Page was ordered to pay a fine of $750, veterinary costs of

$782.70 and to pay emotional harm reparation of $750. The Court also ordered the destruction of Jazz. The sole ground of appeal is that the District Court Judge erred in fact and law by failing to find that the circumstances of the offence were exceptional and did not warrant the destruction of Jazz.

Factual background

[3] Monita Kumar was the owner of a Chihuahua/Lhasa Apso cross named Nimbus. Ms Kumar and Mr Page live on adjoining properties which are separated by a wire fence.

[4] A disputed facts hearing was held before Judge Grau to determine whether Nimbus had gone on to Mr Page’s property (in that Nimbus had put her head through the fence before Jazz grabbed her by the throat and pulled her through) or whether Jazz put his head through the fence and grabbed Nimbus from Ms Kumar’s property.2

[5] Although Mr Page was at home on his property at the time of the events that gave rise to the charge, he did not witness those events.

[6] The Council called two witnesses, Ms Kumar and her friend Sheetal Goundar who were both present on Ms Kumar’s property at the time of the incident. The Judge referred to the evidence of those two witnesses as follows:3

1      Auckland Council v Page [2022] NZDC 4705 (sentencing decision).
2      Auckland Council v Page [2021] NZDC 14580 (disputed facts decision) at [7]. The decision uses the word ‘his’. However, in his affidavit filed in the District Court Mr Page identifies Jazz as a female dog.
3      Auckland Council v Page, above n 2, footnote omitted.

[9] Ms Kumar said she was in the front paddock with her four dogs around her, picking fruit for her visitors to take home and showing her friend how her dogs ate pears. The two Rottweiler dogs next door started barking at the fence and her four dogs ran to the fence line and barked at the neighbouring dogs. She turned…

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: [2022] NZHC 951
Decision Date: 6 May 2022

CaseChat Overview and Summary

Darryl Page appeals against a District Court order for the destruction of his dog, Jazz, a Rottweiler, following an attack on a neighbour's Chihuahua/Lhasa Apso cross named Nimbus. The sole ground of appeal is that the District Court Judge erred by failing to find that the circumstances of the offence were exceptional and did not warrant the destruction of Jazz. The appeal requires the High Court to consider the application of section 57(3) of the Dog Control Act 1996, which mandates the destruction of a dog unless the circumstances of the offence were exceptional and did not warrant destruction. The Court must first identify the relevant circumstances of the offence and then determine whether those circumstances were exceptional.

In determining the relevant circumstances of the offence, the Court found that Jazz, along with Mr Page’s other dog, started barking first, leading Nimbus and Ms Kumar’s other dogs to approach the boundary fence and bark back. There was a confrontation at the boundary, and Nimbus jumped up against the fence, putting her front paws on the wires. Jazz put her head through the wire fence, took Nimbus through the fence onto Mr Page’s property, shook her, and seriously injured her. The events occurred over a relatively short timeframe.

The Court then considered whether these circumstances were exceptional such that they did not warrant the destruction of Jazz. The Court concluded that this was an incident where Mr Page’s dog initiated an altercation at the boundary of his property, and there was no element of provocation. The circumstances of the offence were completely ordinary, and the risk that a dog poses to people and animals assumes it can be expected to behave in the same way in similar circumstances. Consequently, the Court found there were no exceptional circumstances.

The appeal is dismissed.

Orders