Simpson v Kawerau District Council HC Rotorua CIV 2006-463-000528

[2007] NZHC 1784

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CIV 2006-463-000528

BETWEEN  RAYMOND ANDREW SIMPSON Applicant

AND  KAWERAU DISTRICT COUNCIL Respondent

Hearing:         31 May 2007

Appearances: Applicant in Person

S J Clews for Respondent

Judgment:      1 June 2007

JUDGMENT OF FOGARTY J

[1]      This is an application to review a decision of the Kawerau District Council made on 11 July 2001 to classify a female brindle and white Rhodesian Ridgeback cross dog as dangerous under s 31(1) of the Dog Control Act 1996.   Consequent upon  the  classification  of  the  dog  the  annual  registration  fee  increased.    The applicant who did not accept the classification continued to tender the usual registration fee.   That was not accepted.   The dog was not registered and an infringement notice was issued against him on 20 May 2002, the fee payable being

$200.  That sum has increased.    The application for review extends to challenging that infringement notice.

[2]      If the dog was wrongly classified as dangerous, and that notice is set aside, then the infringement notice is founded upon an invalidity and is inconsequential.

[3]      The power to classify a dog as dangerous is contained in s 31 of the Dog

Control Act 1996 which provides:

SIMPSON  V KAWERAU DISTRICT COUNCIL  HC ROT CIV 2006-463-000528  1 June 2007

31     Territorial authority to classify dangerous dogs

(1)     The territorial authority shall classify as a dangerous dog—

(a)     Any dog in respect of which the owner has been convicted of an offence under section 57A(2); and

(b)      Any dog which the territorial authority has, on the basis of sworn evidence attesting to aggressive behaviour by the dog on one or more occasions, reasonable grounds to believe constitutes a threat to  the safety  of  any  person,  stock,  poultry,  domestic  animal,  or protected wildlife; and

(c)     Any dog that the owner admits in writing constitutes a threat to the  safety  of  any  person,  stock,  poultry,  domestic  animal,  or protected wildlife.

(2)     Where any dog is classified as a dangerous dog under subsection (1) of this section, the territorial authority shall immediately  give notice in the prescribed form of that classification to the owner.

(3)       Where any dog is classified as a dangerous dog under subsection (1)(b) of this section, the owner may, within 14 days of the receipt of notice of that classification under subsection (2) of this section, object to the classification in writing to the territorial authority, and shall be entitled to be heard in support of his or her objection.

(4)     In considering any objection under this section, the territorial authority shall have regard to—

(a)        The evidence which formed the basis for the original classification; and

(b)       Any steps taken by the owner to prevent any threat to the safety of persons and animals; and

(c)     The matters advanced in support of the objection; and

(d)     Any other relevant matters—

and may uphold or rescind the classification.

(5)        The territorial authority shall  give notice of its  decision on any objection,  and  the  reasons  for  its  decision,  to  the  owner  as  soon  as practicable.

[4]      The material parts of the classification decision reads:

This is to notify you that this dog has been classified as a dangerous dog under Section 31(1) of the Dog Control Act 1996.

This is because:    of the sworn evidence of Richard McDonald & Roberta McDonald in the Whakatane District Court 29-05-01. (Section 31(1)(b), Dog Control Act 1996)

[5]      That evidence had been sworn at a hearing in the District Court between two Community Magistrates on 29 May 2001.   The Magistrates were hearing a prosecution by the Council against the applicant in this case as to the dog having made an attack on a person.  This prosecution depended on s 57(2).  Section 57(1) and (2) provide 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

(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  summary  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.

[6]      Mr and Mrs McDonald gave evidence at that hearing.   Due to an accident their evidence was not recorded.  However, the prosecution summary of facts and the brief of evidence of Mr Richard McDonald are available.   The prosecution case, dependent  on the  McDonald  evidence,  was that  on 6  February 2001  they were walking towards their home, pushing their two year old baby in her pushchair.  As they approached the Simpson’s residence Mr McDonald saw the dog looking around the fence by the gateway, snarling profusely and baring its teeth and also barking. The dog came onto the footpath towards them snarling and barking and they could not get passed it.    The dog approached the baby’s pushchair, looked directly at it causing the baby to be frightened and cry and scream.  The dog came between one and a half and two metres from the pushchair.  Mr McDonald was carrying a small stick having had trouble with the same dog previously and having complained about the dog previously.  He grabbed the stick from the pram and chased the dog with it. The dog took off into its own section but remained by the gate still snarling and barking.  None of the family were bitten but Mr McDonald feared for the safety of himself, his wife and baby daughter.

[7]      Mr Simpson called in defence two of his children and one of their friends. They had a different version of what was obviously the same incident.  The gist of their version of events is that when the incident started the dog was across the road from the Simpson’s residence in the property of the Simpson’s landlord, the Slades. It was on a chain held by Jacob (Jake) Simpson, a son of the applicant.   The dog pulled away from Jacob, he losing control of the chain, and rushed out onto the road barking at the McDonalds.  Colin Slade said that the dog stopped in the middle of the road about ten metres away from the pushchair.  He said that Harry Simpson, Jake’s brother, was mowing the front lawn at the Simpson’s house.   He stopped the lawnmower and went out onto the street grabbing the dog and pulling the dog into the front gate of the Simpson’s and tying him up.  The dog was barking.  He agreed that Mr McDonald did have a stick and was waving it at the dog which kept on barking  but  went  backwards.    Then  it  came  forwards  again.    Jake  Simpson’s evidence  was  essentially  the  same.    However,  he  said  that  Harry  was  actually mowing the law on the footpath outside the gate on the edge of the road.  He agreed the dog was barking and you could see its teeth.   Harry Simpson’s evidence was essentially the same as well with some added detail that he had seen Mr McDonald previously  threaten  Romp  with  a  stick.     (Evidence  that  was  consistent  with Mr McDonald’s allusion to an earlier event and the need for the stick.)   Consistently with Mr McDonald, Harry said that he saw Mr McDonald get the stick out of the pram and threaten the dog with it.   However, he said the dog was stopped in the middle of the road.  He said that Mr McDonald chased after the dog with the stick. He said Mr McDonald spoke to him and told him:

To put your f… dog back in the gate

And that is what he did.

[8]      Mr Simpson’s principal argument was that at 11 July the grounds on which the Council relied were not reasonable grounds to believe that his dog was a dangerous dog, that there was too much conflicting evidence for a reasonable belief in the truth of the testimony of the McDonalds.   They had been discredited in the hearing before the Community Magistrates. At the time of the classification decision the decision of the Community Magistrates had been appealed (22 June).  The appeal grounds said:

•    There was no proof of an attack.

•   That both prosecution witnesses had perjured themselves under cross- examination and were totally discredited.

•    There was no such incident as the one they alleged.

•   Even on a reconstruction of the evidence the McDonald evidence could not be construed to meet the required standard of reasonable grounds of belief.

•   The sworn evidence of the defence, for which there is a record, must outweigh that of the prosecution for which there is no record.

[9]      Mr Simpson also relied on the Council staff’s eagerness to prosecute in the face of overwhelming evidence that the dog was harmless, it having earlier that year won the prize at the local Kawerau SPCA Dog Show for the best dog and the most obedient dog, the awards being presented by the Mayor of the Council.

[10]     Mr Simpson also relied on some other subsidiary arguments.  He said there was no sworn evidence as required by the statute because the hearing before the Community Magistrates was ultra vires, as indeed the High Court found in Simpson v Whakatane District Court [2005] NZAR 537. That point has no weight because whether or not the Community Magistrates had the power to hear the case the evidence was sworn.

[11]     The other subsidiary point was that the Council officers signing the notice, Mrs Hatfield and Mr Austin, were relying on a hearsay report from the Council employee who prosecuted the case, Mr Moller.  They could not rely on that report and there was no record of the sworn evidence due to the failure of that evidence to be tape-recorded.

[12]     Mr Clews, for the Council, relied principally on the proposition that there was sworn evidence upon which the Council was entitled to make the classification

decision, that it is not for the High Court upon review to substitute its own view of that evidence.     He argued that although the notice relied on the evidence of the McDonalds, the evidence of the boys was materially consistent when against the s 31 test.   As a subsidiary argument he argued that Mr Simpson had an opportunity to object to the classification provided by s 31(3) within 14 days of receipt  of the notice, that he had been given notice of this right of objection which was printed on the back of the notice of classification:

The dog is a dangerous dog.

He had not taken advantage of the opportunity to object and it was too late to do so now by way of application for review.

[13]     He also argued that the application for review was now futile after this length of time and because the dog was no longer with the Simpson family.  However, he agreed that Mr Simpson still had reason to be aggrieved by the classification because of the consequence of the infringement notice and the penalty outstanding on that notice.

Analysis

[14]     The Council had a duty to classify the dog as a dangerous dog if the criteria in sub-paragraph (b) of sub (1) was satisfied.

[15]     A threshold requirement of the application of sub-paragraph (b) is that there is sworn evidence attesting to  aggressive behaviour by the dog on one or more occasions.   Upon that threshold there has to be a basis of reasonable grounds to believe that the dog constitutes a threat to the safety of any person etc.

[16]     The   recurring   theme   of  Mr   Simpson’s   argument   is   that   in   all  the circumstances  it  was  wrong  for  the  Council  to  selectively  rely  on  the  sworn testimony of its witnesses, Mr and Mrs McDonald.   They were only some of the witnesses  and  moreover  the  decision  of the  Community  Magistrates  was  under appeal and  known  to  be  under  appeal  by the  Council  at  the  time  it  made  the classification.

[17]     The Community Magistrates’ decision did not attempt to resolve the conflicts between the evidence of Mr and Mrs McDonald and the children.  The Magistrates said:

The side of the street it came from is really immaterial.   The fact of the matter is the dog was barking.  It may have been snarling, we are not sure about that but it was coming in their direction and they saw what they saw to be aggression.

[18]     The Court at that stage complimented the boys who gave evidence.   The Magistrates then went on to find Mr Simpson guilty of not having the dog under control at this particular point in time saying:

Nobody really should be subjected to the approach of an aggressive dog when they are going about their business on the footpath.

[19]     All statutory powers have to be exercised in good faith and for their proper purpose.  In a situation such as this the relevant officers of the territorial authority have to consider the basis of all the sworn evidence before them.   This does not mean that they cannot favour some sworn evidence over other evidence.   It all has to be taken into account.  It is inconceivable that Parliament would have intended that they could arbitrarily favour some sworn evidence not taking  into account other sworn evidence.

[20]     It is common ground that Mr Austin, an officer of the Council, was not at the hearing.  Mrs Hatfield was, as she gave evidence.  However, she was excluded until after the evidence of the McDonalds.  I accept Mr Simpson’s submission that it was really Mr Moller’s report on the hearing which would have informed Mrs Hatfield and Mr Austin.

[21]     On the basis of all the sworn evidence in the hearing I am satisfied that there was evidence upon which Mr Moller could find aggressive behaviour by the dog on that occasion in February 2003, giving reasonable grounds to believe that the dog constituted a threat to the safety of the McDonalds.

[22]     It may be, as Mr Simpson argued, that the dog’s aggression on this occasion was of a defensive character.  He argued that there was a history of the dog being

bated by the McDonalds so that the dog knew quite well who the McDonalds were and was aggressive to them but  falling short of attacking them.   However, that certainly is a point of view that was open to be taken by the Council but it does not mean that there was not another point of view capable of being taken by the Council, rather  that  the  aggressive  behaviour  constituted  a  threat  to  the  safety  of  the McDonald.

[23]     Had it become apparent that the McDonalds and the boys were describing two different incidents there might have been some substance to Mr Simpson submission that  the McDonalds’ evidence had  been completely discredited.    Of course, we do not have a transcript of their evidence and do not know their answers. It may be that there were some concessions in cross-examination as to the direction from which the dog came.  Certainly, the Community Magistrates decided in the end that it was not necessary to rule on that point.

[24]     The applicant’s best point really resolves down to the proposition that the Council’s classification decision was, on the face of it, in error of law and in breach of natural justice by relying selectively only on the sworn evidence of Mr and Mrs McDonald.  In that regard Mr Clews said that it was more a natural selection of their own  witnesses,  to  be  understood  in  the  context  that  there  was  no  significant difference as to the aggression of the dog between them and the evidence of the boys.

[25]     Closely  related  to  this  main  point  of  the  applicant,  is  the  applicant’s proposition that the prosecutor, Mr Moller, was biased in his report to Mrs Hatfield and Mr Austin, biased naturally because he was the prosecutor.

[26]     All statutes have to be construed and applied in a realistic fashion, that is in the context that Parliament intends the decision making to be made.

[27]     Section 31(b) imposes a restraint on the classification of a dog as dangerous where there has been no conviction  under s 57, to which sub-paragraph (a) applies and where there is no admission, to which sub-paragraph (c) applies. The restraint is that there be sworn evidence.  The threshold of sworn evidence requires a degree of

solemnity as to the narration of aggressive behaviour.  However, there is nothing in s 31(1)(d) which requires the Council to hold a hearing.  The obligation of hearing the other party is provided for by way of objection to the classification in s 31(3).

[28]     It is a natural enough event that the officers of Councils who will make the classification under s 31(1) will usually know a good deal of the history of the dog, as here.  In that sense, whether they be dog control officers or prosecutors they are likely to have formed their own views as to the dog independent of receipt of sworn evidence.  Indeed, one of their number might provide the sworn evidence.  It would impose an unintended handicap and extra cost on the Council if a decision as to the classification had to be made by officers who were untainted by previous dealings in respect of the dog.   For that reason, I think it was entirely within the spirit and purpose of s 31 for the Council prosecutor in a dog attack case to advise the Council as to whether or not there is a basis for classifying the dog as a dangerous dog.

[29]   As Mr Clews recognised, it would have been better had the notice of classification  simply  referred  to  the  sworn  evidence  of  the  witnesses  in  the Whakatane District  Court on 29 May 2001, without selecting only Mr and  Mrs McDonald.  The question resolves into whether or not that was a significant error.  It was not because the other sworn evidence was materially consistent in that it also provided a basis of sworn evidence sufficient for the purposes of sub-paragraph (b). Had that other evidence directly contradicted Mr and Mrs McDonald as to attesting to aggressive behaviour by the dog and apprehension as to their safety, this would be another case and potentially a different outcome.

[30]     The fact that the Community Magistrates’ decision was under appeal at the time, and indeed subsequently set aside, is not, upon final analysis, a ground for setting aside the classification.  Judge P S Rollo of the District Court of Whakatane set aside the decision because the Community Magistrates did not address the basic elements of the charge under s 57(5) of the Dog Control Act.  Second, they did not address the basic facts that they found that support a finding of guilt.  Third, they did not address the resolution of any conflicts in the evidence.   Finally, they did not address the onus of standard of proof.  As I have already highlighted, they appeared

to have founded conviction upon a conclusion that Mr Simpson had not kept the dog under control.  That is simply not the test under s 57(5).

[31]     But most significantly, the Council were entitled to draw a distinction in July

2001 between the issue before the Community Magistrates which was whether or not the dog had attacked the McDonalds from the question of whether or not the dog was dangerous.  Section 31(1) makes it plain that a dog can be classified as dangerous even if it has not been convicted of an offence under s 57.

[32]     Mr  Simpson  argued  that  the  appeal against  the  Community  Magistrates’

decision was a general appeal and by way of s 119 of the Summary Proceedings Act

1957, the evidence of Mr and Mrs McDonald would have to be reheard.  He argued that this of itself was a reason why the Council could not rely on the earlier evidence. It had to be reheard because the transcript was lost.  The fact that the evidence had to reheard on appeal because the evidence had been lost does not mean that Mr Moller could not rely on the sworn evidence that he heard at the hearing in forming a judgment as to whether or not there was a basis for recommending to the Council the classification of the dog as dangerous.

[33]     For these reasons this Court does not consider that there is sufficient basis for intervening and setting aside the classification decision of 11 July 2001.

[34]   The infringement notice followed upon the classification.   Mr Simpson submitted that the matters giving rise to the classification were under appeal in the District Court.  By that he meant that the evidence of Mr and Mrs McDonald as to the events of 7 February were under appeal in the District Court.  That is true, in the context of whether or not the dog had attacked.  But the use of that evidence by the Council as to  whether  or  not  the  dog  was  dangerous  is  a  different  matter, the distinction being drawn above.

[35]     The infringement notice was issued on 20 May 2002, after the judgment of the District Court setting aside the Community Magistrates’ decision, a judgment dated 3 April.

[36]     The validity of the infringement notice has always depended on the validity of the classification.  Having found that there is no basis for this Court to intervene with the classification decision the infringement notice remains on foot.

[37]     Mr Simpson argued that he had been promised that given the circumstances of his appeal against the Community Magistrates’ decision and the applicant’s inability  to  pay  the  fee  the  question  of  the  registration  of  the  dog  and  any infringement would be held over in good faith until the outcome of the appeal was known.  The Council disputed that promise.  But either way the promise did not and could not bind the Council to decline to issue an infringement notice.

[38]     The application to set aside the infringement notice fails as well.

[39]     The respondent Council sought costs.  This apparently is the first time in a large number of proceedings relating to this dog that the Council has sought costs. Mr Simpson has had considerable  success along the way.    The reliance by the Council on the evidence of Mr and Mrs McDonald, of two only of a larger set of witnesses made Mr Simpson’s application for review distinctly arguable.   The proceedings cannot be described as vexatious and futile.  He is a welfare beneficiary. He has a significant burden of itself to pay the outstanding fees in respect of the infringement notice.   In the circumstances, I think there are exceptional reasons which warrant that no order for costs made against him, including the fact that such an order is likely to be futile.  Each party shall bear its own costs.

Solicitors:

Osborne Attewell Clews (Counsel:  S J Clews)