Selwyn-Mallinson v Rotorua Lakes Council
[2016] NZHC 1437
•29 June 2016
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI-2016-463-000015 [2016] NZHC 1437
BETWEEN BONNIE JONELLE SELWYN-
MALLINSON Appellant
AND
ROTORUA LAKES COUNCIL Respondent
Hearing: 10 June 2016 Appearances:
Appellant in person
B Brown for RespondentJudgment:
29 June 2016
JUDGMENT OF LANG J
[on appeal against order that dog be destroyed]
This judgment was delivered by me on 29 June 2016 at 2.30 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
SELWYN-MALLINSON v ROTORUA LAKES COUNCIL [2016] NZHC 1437 [29 June 2016]
[1] Ms Selwyn-Mallinson pleaded guilty in the District Court to a charge of being the owner of a dog that attacked another dog.1 On 24 March 2016, Judge Snell fined Ms Selwyn-Mallinson $300 and ordered her to pay reparation to the owner of the other dog. In addition, the Judge made an order that the dog be destroyed.2 Ms Selwyn-Mallinson appeals against the latter order only.
[2] During the hearing it became apparent that Ms Selwyn-Mallinson had not had an opportunity to consider the written submissions filed by counsel for the respondent. I therefore adjourned the hearing part-heard and gave Ms Selwyn- Mallinson seven days within which to provide me with her submissions in writing. She duly filed submissions on 17 June 2016 and the respondent provided supplementary submissions in response on 22 June 2016.
Background
[3] Ms Selwyn-Mallinson’s partner is the owner of a brown and white American
Pitbull/Terrier Cross called “Boyboy”. On the morning of 13 September 2015
Boyboy jumped a gate on Ms Selwyn-Mallinson’s property. He then ran across the road and attacked a Labrador that was being taken for a run by his owner on the other side of the road. The other dog was on a short lead at the time of the attack.
[4] The owner of the dog was able to stop Boyboy’s attack with the assistance of another member of the public. His dog sustained injuries to its jaw, neck and flank that required veterinary treatment at a cost of $623.40.
Relevant principles
[5] Section 57 of the Act relevantly provides as follows:
57 Dogs attacking persons or animals
(1) A person may, for the purpose of stopping an attack, seize or destroy a dog if—
(a) the person is attacked by the dog; or
1 Dog Control Act 1996, s 57(2).
2 Section 57(3).
(b) the person witnesses the dog attacking any other person, or any stock, poultry, domestic animal, or protected wildlife.
(2) The owner of a dog that makes an attack described in subsection (1) 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 the offence were exceptional and do not warrant destruction of the dog.
...
[6] The issue in the present appeal is whether the Judge correctly concluded that the circumstances of Ms Mallinson’s offending were not exceptional in terms of s 57(3) so that they did not warrant destruction of the dog.
[7] The meaning to be given to the closing words in s 57(3) has been the subject of discussion in several decisions of this Court, including Halliday v New Plymouth District Council,3 Orr-Walker v Auckland District Council4and Jorion v Kapiti District Council.5 These and earlier cases establish that the words “exceptional circumstances” create a high threshold that the owner of a dog that has attacked a person or another dog will find difficult to meet.6
[8] In Jorion v Kapiti District Council, Dobson J observed:7
[12] It is implicit in Heath J’s analysis of s 57(3) that the two sets of considerations required are sequential. First, a dog owner resisting an order where a relevant attack has occurred must establish that the circumstances of the offence were exceptional. If that test is satisfied, then it is necessary to go on and consider whether those circumstances do not warrant destroying the dog. This means that, however exceptional the circumstances, if there remains a prospect that the dog would attack again, then its destruction would be warranted.
3 Halliday v New Plymouth District Council HC New Plymouth CRI 2005 443 011, 14 July 2005.
4 Orr-Walker v Auckland District Council [2013] NZHC 1541.
5 Jorion v Kapiti District Council HC Palmerston North CRI 2010 454 022, 4 August 2010.
6 Peteru v Manukau District Council HC Auckland A 70/00, 6 July 2000 at [5]-[6]; Halliday v
New Plymouth District Council above n 3 at [40].
7 Jorion v Kapiti District Council HC Palmerston North CRI-2010-454-22, 4 August 2010.
[9] Importantly, the Court has no ability to decline making an order for destruction of the dog unless the circumstances of the offence qualify as being exceptional in terms of s 57(3).
The Judge’s decision
[10] After referring to Orr-Walker and Halliday, the Judge identified the following factors as being relevant to the decision he was required to make. These were:
(a) The nature of the attack;
(b) The history of the owner of the dog; (c) The dog’s history;
(d) Steps taken by the owner to prevent the attack occurring; and
(e) The reasons why those steps were not successful.
[11] The Judge found that the attack was unprovoked and caused significant damage to the other dog’s neck. It required significant effort on the part of the other dog’s owner and a passerby to end the attack. The Judge also observed that the yard in which Boyboy was housed was clearly not one that could contain him.
[12] The Judge observed that there was no recorded history of similar behaviour on the part of this dog. However, the dog’s owner had been issued with a notice that the Council had classified Boyboy as a menacing dog, and was required to wear a muzzle at all times when at large or in any public place as a result.8 On the day of the incident Boyboy was not wearing a muzzle. Ms Selwyn-Mallinson advised the Judge that she had purchased a muzzle for Boyboy after receiving the notice and
would put it on Boyboy when he was outside the house. She also explained, however, that Boyboy spends most of his time inside the house and does not wear
the muzzle when inside. She also said that she believed Boyboy was inside the
8 Dog Control Act 1996, s 33E.
house at the time he attacked the other dog. Obviously Boyboy had found a means of leaving the house without being observed.
[13] Ms Selwyn-Mallinson also told the Judge that an incident had occurred the previous day when another dog had come into her back yard. The two dogs began playing, but this turned into a fight and Boyboy had bitten the other dog.
[14] These factors persuaded the Judge, and by some margin, that the circumstances relating to the offence could not be regarded as exceptional.
Decision
[15] There was nothing remarkable or exceptional about the offending in the present case. It involved an unprovoked attack by a dog that was plainly inadequately restrained. It also caused significant injury to the other dog.
[16] In her written submissions Ms Selwyn-Mallinson says that Boyboy had become stressed at the time of the offending because her partner had been away from home for several weeks and Boyboy was missing him greatly. Her partner was also responsible for walking Boyboy, and she had been too busy to undertake that responsibility during the days leading up to the attack. She says she had noticed Boyboy staring out the window and becoming agitated during that time.
[17] The only substantive ground that Ms Mallinson has been able to advance in support of the appeal is that she and her partner have now moved to a property that has a higher fence. She therefore submits that the present offending was an isolated event that is unlikely to reoccur in the future. I understand the thrust of this submission, but it relates to events that occurred after the attack and does not assist me to decide whether the Judge was wrong in the conclusion that he reached regarding exceptional circumstances.
[18] Three factors are significant about the offending in the present case. The first is that Ms Selwyn-Mallinson was unable to keep Boyboy secured within her house on the day of the attack. He was obviously able to leave the house without Ms Selwyn-Mallinson knowing he had done so, and without wearing a muzzle. The
second is that Boyboy’s immediate reaction on seeing the dog on the other side of the road was to escape from the property and attack it. The third is that the gate and fencing around the property were plainly insufficient to prevent Boyboy from leaving the property.
[19] All of these factors mean that Ms Selwyn-Mallinson had no prospect of establishing exceptional circumstances in terms of s 57(3). Boyboy’s apparent willingness to attack other dogs also means that she would have had difficulty persuading the Court that Boyboy did not present as a risk of similar behaviour in the future.
Result
[20] The appeal is dismissed.
Lang J
Solicitors:
Tomkins Wake, Rotorua
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