Smith v New Zealand Kennel Club Incorporated

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA100/2018
[2019] NZCA 454

BETWEEN	LOUISE SMITH Appellant
AND	NEW ZEALAND KENNEL CLUB INCORPORATED Respondent

Hearing:	20 November 2018
Court:	Cooper, Winkelmann and Williams JJ
Counsel:	G E Minchin for Appellant A N Isac and T Mijatov for Respondent
Judgment:	25 September 2019 at 10 am

JUDGMENT OF THE COURT

AThe appeal is dismissed.
BThere is no order as to costs.

____________________________________________________________________

REASONS OF THE COURT

This appeal concerns the registration of three pedigree Japanese Spitz dogs. The respondent, the New Zealand Kennel Club Inc (the NZKC), has refused to place the three dogs on its full register, placing them instead on its restricted register. That refusal affects the dogs’ value. It means that they cannot be entered in certain kinds of show, and if they breed, that their offspring will not be able to be registered as pedigree. Ms Smith sought to judicially review that refusal by the NZKC and also its decision to register the dogs with names she considers offensive. She was unsuccessful before the High Court and now appeals the decision of Ellis J declining judicial review.[1]
[1]Smith v New Zealand Kennel Club Inc [2018] NZHC 27.
The issues in the proceeding can be traced to an agreement (the Rosa Agreement) reached between two parties who are now not currently before the court — Ms Howard and Ms Faulkner. Ms Howard operated a pedigree kennel known as Mondial Kennels. Ms Rosa agreed with Mondial Kennels that she would take ownership of the dog Fudge (also known as Mondial Cookies and Cream) but would lease her back to Mondial Kennels for breeding purposes. Ms Faulkner and Ms Rosa signed the Rosa Agreement, which provided that the cost of stud was to be for Mondial Kennels, and that in the result of a pregnancy, the entire litter was to be registered in Mondial Kennels’ name and at its cost. The litter would then be sold with the proceeds going to Ms Rosa, subject to Mondial Kennels’ right to pick one of the puppies prior to sale.
The registration referred to was with the NZKC which maintains a national register of purebred pedigree dogs. Registration and naming of dogs is approved by the NZKC in accordance with its Rules and its Registration Regulations.
In June of 2006, Ms Faulkner purchased Fudge from Ms Rosa and agreed to take over the Rosa Agreement. That Agreement was activated in February 2011 when Ms Howard approached Ms Faulkner to make arrangements necessary for Fudge to be bred. Ms Howard wished Fudge to be sent to her in Auckland, and ultimately that was agreed to. However, a dispute then arose because Ms Howard refused to deliver Fudge back to Ms Faulkner until Ms Faulkner provided to her a signed and completed standard lease agreement for Fudge. Ms Faulkner said she was prepared to sign a lease agreement but required the return of Fudge before handing it over.
Ms Howard still did not return Fudge and so Ms Faulkner brought a claim in the Disputes Tribunal seeking her return.
The first hearing before the Tribunal occurred in April 2011. Ms Howard did not attend.
The Tribunal found that the Rosa Agreement contemplated that Fudge would be in Ms Howard’s care for a short time only to allow the mating to occur, and that thereafter Fudge and then the puppies would remain in Ms Faulkner’s care, subject only to the right of Ms Howard to pick a puppy.[2] Although Ms Faulkner agreed to a variation of the Rosa Agreement to allow Fudge to travel to Ms Howard in Auckland to allow mating, that variation only required that Fudge be there while she was in season — about a week. Ms Howard was therefore in breach of the Rosa Agreement in failing to return Fudge.[3] The Tribunal ordered the return of Fudge to Ms Faulkner.
[2]Faulkner v Howard CIV-2011-059-49, 15 April 2011 at [10].
[3]At [11].
We note that in support of her claim before the Tribunal Ms Faulkner had filed a document which has been consistently referred to in those proceedings (and in these proceedings) as a lease agreement (the Lease Agreement). The document was in fact an “Application for Registration of the Loan or Use of a Bitch for Breeding Purposes”. Ms Faulkner’s position before the Tribunal was that she was prepared to provide the Lease Agreement but only on the return of Fudge. The copy she filed was signed and dated 26 February 2011, was expressed to run for a period of six months only and showed Ms Howard as the breeder.
Ms Howard then applied for and was granted a rehearing before the Disputes Tribunal. She counterclaimed for veterinarian and other costs. That rehearing took place in July.[4] Some time prior to the hearing Fudge had given birth, with four surviving puppies. On this occasion the Tribunal accepted that Ms Faulkner’s signature of the Lease Agreement was necessary to ensure that the litter produced by Fudge could be registered in Ms Howard’s kennel name, as contemplated by the terms of the Rosa Agreement.[5] However, it repeated its finding that Ms Howard breached the Rosa Agreement by refusing to return Fudge.[6] The Tribunal therefore ordered on 6 July that Fudge and her puppies were to be returned to Ms Faulkner on condition that a “lease of bitch form” was to be signed by Ms Faulkner.[7] The Tribunal referee ordered that Mondial Kennels was to register the puppies with the NZKC, that Ms Howard could select her puppy prior to the sale of the litter, and that Ms Faulkner would retain the proceeds of sale in respect of the remaining three puppies.
[4]Faulkner v Howard CIV-2011-059-49, 6 July 2011.
[5]At [1] and [4].
[6]At [4]–[6].
[7]At [7].
Ms Howard then emailed the NZKC referring to the Tribunal’s 6 July orders and providing a copy of the Lease Agreement signed by Ms Faulkner dated 26 February 2011. Ms Howard asked for confirmation that the NZKC would accept this application for registration.
On 12 July 2011, the NZKC advised that they would not accept the application for registration proffered by Ms Howard because it had not been lodged within three months of signing of the Lease Agreement in accordance with reg 13.4. It said it was unable to grant an extension of time without Executive Council approval, noting further that it was not common for its Executive Council to make decisions that ran contrary to the regulations.
Following further exchanges, on 15 July 2011, the NZKC emailed both Ms Faulkner and Ms Howard saying:
If both parties can agree, we will accept a lease if the signature date is changed to accommodate our regulations. This will ensure that the lease has the same timeframe as originally intended but can also be processed without our regulations. Our regulations don’t appear to worry about the whelping date. So if the same agreement is used but a signature date that falls within our regulation requirements is used then I believe this will satisfy our requirements.
On 21 July, the Police facilitated the handover of the dogs (Fudge and the four puppies — the puppy that Ms Howard was to retain was returned to her later). The Lease Agreement was then signed by Ms Howard. Ms Howard entered the date 21 July 2011 under Ms Faulkner’s signature, although leaving the date of 26 February 2011 next to the space marked “Date Signed”. Shortly thereafter she scanned it through to the NZKC.
However, the NZKC was not happy to proceed on that basis without Ms Faulkner’s express agreement. In an email dated 1 August 2011, Ms Faulkner told the NZKC that her signature on the Lease Agreement was dated 26 February 2011, and she denied that she had agreed to the addition of the later 21 July 2011 date. Accordingly, the NZKC declined to accept the lease, telling the parties that outstanding issues between them needed to be resolved.
In terms of the chronology of events it is at about this point that the appellant, Ms Smith enters. On 30 July 2011 Ms Faulkner sold Fudge’s three puppies to which she had contractual right, to Ms Smith.
In early August Ms Howard sought a further rehearing before the Tribunal because of her inability to obtain registration of the puppies. In her evidence filed in support of the application for rehearing, Ms Howard said that the NZKC would not register the puppies without either Ms Faulkner’s agreement, or the Tribunal’s direction to register the litter in the name of Mondial Kennels. A telephone conference for 6 September was allocated for the application for rehearing. On 7 September, following that hearing, the Tribunal issued a minute clarifying its earlier orders. It ordered:
The order made on 6 July 2011 is hereby clarified by stating that, irrespective of any problem with the dates on the Application for Registration of The Loan Or Use Of A Bitch For Breeding Purposes which has now been signed by both parties, the puppies in question are to be registered in the name of Mondial Kennels.
The NZKC then accepted the Lease Agreement as valid, which meant that Ms Howard was deemed to be the breeder of the puppies giving her the entitlement to register and name them. The NZKC proceeded to register all four puppies on Ms Howard’s application. She registered the puppy she was keeping on the full register, and the other three on the restricted register. The names she gave Ms Smith’s three puppies were “Mondial Where The Hell R Ya”, “Mondial Do A Runna” and “Mondial Catch Me If You Can”. She gave the puppy she retained the name of “Mondial Gone In Sixty Seconds”.
It is material to observe at this point that at the time the Rosa Agreement was entered into, the NZKC had only one type of registration — full registration. Later, in about 2008, its Rules were amended to split the register in several parts. Part 1 is the full register. Only dogs with both parents on this register are eligible for entry on it. And only dogs on this part of the register can be entered at a Championship or Open Show. Part 2 of the register is not relevant for our purposes. Part 3 is the restricted register. Although it is also only for pure bred dogs, those on the restricted register do not have the right to be shown at Championship or Open Shows, and if they have offspring, their offspring will not be entitled to registration as purebred. It is relevant also that while there was no restricted register prior to 2008, the NZKC could nevertheless place “endorsements” on dogs to achieve essentially the same outcome as registration on the restricted register.
Ms Faulkner and Ms Smith protested this registration. They made the case to the NZKC that the puppies should have received full registration, since that was the only registration available at the time of the Rosa Agreement. Ms Faulkner also argued that the names given were offensive, a view based on her belief that Ms Howard had concealed the size of Fudge’s litter, enabling her to keep additional puppies.
In early December 2012 the Executive Council of the NZKC agreed to change the puppies’ names and to transfer them to the full register, with the name of Ms Faulkner or nominee as owner. But the dispute was not over. When notified of this decision Ms Howard applied to the NZKC for a review of that decision, and on 31 July 2013, the Club determined that while Ms Smith was to remain the registered owner of the dogs they would be returned to the restricted register under the names given to them by Ms Howard. It said that the NZKC Registration Regulations only allowed a dog to be transferred to the full register with the breeder’s written consent. In the absence of a Tribunal Order or Ms Howard’s consent it could not transfer the three puppies. As to the names it said that while the names were distasteful in the circumstances of the dispute, they were not offensive or objectionable to an ordinary person.
In September of 2013 Ms Smith sought to review the NZKC’s July decision. The NZKC stayed its decision while it considered her challenge. Eventually it determined that it should uphold its July decision, advising Ms Smith of that in October 2013.
Ms Smith brought judicial review proceedings against the NZKC. By the time of the hearing Ms Smith was pursuing four causes of action. The first, that the NZKC had relied upon Ms Howard being the “breeder” of the puppies pursuant to the NZKC Regulations, and therefore able to determine registration status of them. But the NZKC r 3(b) states that the breeder is the “owner of the dam at the time of whelping”.[8] At the time of whelping Ms Faulkner was the owner of Fudge. Accordingly, it was argued that the registration was ultra vires.
[8]Although the statement of claim incorrectly referred to r 3(o).
The second cause of action claimed a number of the NZKC’s actions were in breach of the Registration Regulations in a number of respects, those which are material to this appeal are as follows:
(a) The NZKC’s recognition of the Lease Agreement did not conform with the Registration Regulations because it was not registered within three months of signing, it was not filed in triplicate as those Regulations required and did not comply with the Regulations’ stipulation as to form, which required original forms and original signatures.
(b) The NZKC’s decision to change the name of Ms Smith’s puppies back to the names Ms Howard had given them breached the NZKC’s prohibition on offensive names.
The third cause of action alleged breach of natural justice and that the NZKC had acted unfairly in its treatment of Ms Smith in respect of one of the three puppies, Jenny. It alleged that pursuant to the Registration Regulations, the NZKC had discretion it could exercise to achieve a fair outcome, which it had failed to do that in respect of Jenny. It had allowed Ms Smith to enter Jenny in the upcoming National Dog Show, notwithstanding that she had been removed from the full register at that point in time. In September 2013, Jenny gave birth to a litter of her own. The NZKC subsequently declined to register the puppies on the full register, and it is that which was alleged to have been unfair.
In the final cause of action Ms Smith alleged that the NZKC had failed to take into account mandatory considerations, namely the Rosa Agreement and Ms Howard’s conduct toward Ms Faulkner in respect of Fudge and the puppies.

High Court judgment

The Judge rejected the argument that the NZKC had acted in breach of natural justice, noting the extensive materials with which it had been “bombarded”.[9] She said that the fact Ms Smith was heard was evidenced by the NZKC’s executive’s initial change of heart which acceded to her requests to transfer the puppies to the full register and change their names, and by the later reasoned decisions responding to her requests for review. The Judge observed that even had there been a breach of natural justice, that breach had been cured by the hearing before her, in which all issues had been thoroughly traversed.
[9]Smith v New Zealand Kennel Club Inc, above n 1, at [74]–[75].
As to the remaining causes of action, she said that the Registration Regulations make it clear that only a breeder may register a dog.[10] The Lease Agreement described Ms Howard as the breeder. While the NZKC Rules do define “breeder” as meaning the “owner of the dam at the time of whelping”, she was satisfied they should be interpreted consistently with the Registration Regulations, so that both definitions match.[11]
[10]At [77].
[11]Ms Smith did not purse an argument on appeal based on any inconsistency between the Rules and Registration Regulations in this regard.
The Judge rejected the argument that the Lease Agreement could not be relied upon to give Ms Howard the status of breeder because it was outside the 3-month period required for registration. She said that Ms Howard was entitled to sign and date the Lease Agreement in July.[12] The Judge noted many other difficulties with Ms Smith’s argument:[13]
(a)The Rosa Agreement gave Ms Howard a right to register the puppies in the name of Mondial Kennels and that could only be achieved with Ms Howard if Ms Howard was agreed to have the status of breeder by the parties.
(b)Ms Faulkner had agreed to sign the Lease Agreement and had never resiled from that position, even if she sought to use a refusal to agree to altering its date as a bargaining chip.
(c)From 6 July 2011 Ms Faulkner was required by the orders of the Tribunal to facilitate registration by Ms Howard.
(d)And finally, the NZKC retained a discretion to accept late registration. As to the last point, while it was not clear whether the NZKC had relied upon that discretion, the Judge observed that the availability of that discretion would militate against the exercise of the Court’s discretion to allow judicial review in any case.
[12]At [84].
[13]At [85]–[86].
The Judge considered that the Rosa Agreement was consistent with the decision of the NZKC.[14] And while there might be an argument that the Rosa Agreement obliged Ms Howard to register the puppies in the full register, that was a contractual matter between Ms Faulkner and Ms Howard which could not be determined in the context of a judicial review to which neither Ms Faulkner nor Ms Howard were party.[15] And in any event, reg 13.5 expressly provides that private agreements will not be “recognised” by the NZKC.[16]
[14]At [87].
[15]At [88].
[16]At [89].
The Judge dismissed the technical arguments as to a failure to file the Lease Agreement in triplicate as not supported by the evidence and inconsequential.
Finally, the Judge rejected the argument regarding the names of the dogs. She agreed with the NZKC’s assessment that while the names may be provocative in the context of the dispute they were not indecent or offensive.[17] And the hurt feelings of another member could not be a mandatory consideration.

Argument on appeal

[17]At [93].

Counsel for Ms Smith, Mr Minchin, filed lengthy written submissions raising many points, some which do not seem to have been a feature of the argument before the High Court, and some which have no connection to the pleaded causes of action. After careful consideration of the notice of appeal, Mr Minchin’s written submissions, and the clarification of those submissions he offered in oral argument, we have identified what we understand to be the grounds of appeal.

The NZKC should have given effect to the Tribunal’s decision

Mr Minchin argued first that the Judge erred in failing to find that the NZKC was obliged to give full effect to the Tribunal’s decision. He contended that the purpose for which the Tribunal directed registration of the Lease Agreement was to give effect to the Rosa Agreement. The next step in this argument is that the true effect of the Rosa Agreement was to oblige Ms Howard to register all of the puppies in the full register. Given that, the NZKC could not allow registration which breached the terms of the Rosa Agreement, especially when, by reason of extensive correspondence, the NZKC had full knowledge of the Rosa Agreement and the content of the dispute.
Mr Minchin relied on reg 16.5, which provides:
Any dispute arising out of any term or condition of a recognised contract not specified in clause 16.3 hereof shall be settled by the parties to the contract by private agreement or by an appropriate civil authority. [The NZKC] will not adjudicate any such dispute.
There are several difficulties with this ground of appeal. First, the Tribunal did not determine whether the Rosa Agreement obliged Ms Howard to register the puppies in the full register. As the proceeding before the Tribunal developed, it was asked by both Ms Faulkner and Ms Howard to hold the parties to the terms of the Rosa Agreement. It did that by ordering a return of Fudge and the puppies to Ms Faulkner and requiring that a Lease Agreement be signed. It is true that there is an argument, it may well be a very good argument, that the Rosa Agreement obliged Ms Howard to register the puppies without endorsement, and that after the splitting of the register, that obligation translated into an obligation to register the puppies on the full register. But that argument was not addressed by the Tribunal, and it was an issue between Ms Faulkner and Ms Howard upon which the NZKC could not be expected to engage.

If the NZKC was indeed obliged to give effect to the Tribunal’s order, or to the plain terms of the Rosa Agreement or even its purpose, it was therefore doing so by allowing Ms Howard to register the puppies, since that was her right and obligation under the Rosa Agreement.
A further difficulty with this argument is that reg 16.5, which Mr Minchin relied upon, deals with recognised contracts, which, in terms of that regulation are standard contracts for the sale and purchase of dogs. It therefore has no application to the facts of this case. More relevant is the regulation the Judge relied upon (reg 13.5) in rejecting what seems to have been an earlier formulation of this argument. That regulation provides:
Parties to an agreement for the Loan or Use of Bitch for Breeding Purposes Agreement may enter into such contractual arrangements between themselves as they may deem appropriate. Any such contract should be in writing and is a personal agreement between the parties and will not be recognised by [the NZKC].
Mr Minchin claimed that reg 13.5 means no more than that private arrangements must be privately adjudicated or arbitrated, and it follows, he says that there is nothing in the rules to stop the NZKC giving them effect. We do not agree. Certainly, the regulations contemplate that parties will sort out disputes that arise from private arrangements “between themselves” but the intent behind the regulation is to ensure that the NZKC can proceed on the basis of standard agreements and need not become implicated or embroiled in one off arrangements, and disputes that may arise in connection with them. The facts of this case make clear the wisdom of the inclusion of such a regulation.
There is nothing in this ground of appeal.

The NZKC should have given effect to the Rosa Agreement and should have taken into account the content of the dispute between the parties

We deal with similar dispatch with another ground of appeal that the Judge erred in finding that the NZKC was not required by its rules and regulations to uphold the integrity of agreements between its members. Mr Minchin argued that the NZKC should have held Ms Howard to the terms of the Rosa Agreement, and accordingly should have registered the puppies in the full register, and later, should have declined her request to transfer them to the restricted register.
Again, this argument faces the difficulty of the provisions of reg 13.5.
It also faces the difficulty that the Rosa Agreement does not explicitly deal with the form of registration. Whether or not it obliged Ms Howard to register the puppies in the full register was an issue between the parties to that Agreement, an issue which has not to date been adjudicated upon. The NZKC could not be obliged to take sides in that issue, particularly in the face of the signed Application post-dating the Rosa Agreement, which gave Ms Howard the status of breeder for the purposes of the regulations.
Mr Minchin also seemed to raise an argument that Ms Faulkner’s signature of the Application was extracted under duress. This is not an issue which is raised in the pleadings, and it is not clear it was argued in the High Court. We doubt that the affidavits filed lay a sufficient evidential basis for such an argument, but even if they did, that would be an issue between Ms Howard and Ms Faulkner. It was not an issue that the NZKC could be expected to address within the context of a registration process. And under reg 13.5 it was an issue the NZKC was entitled to disregard.
There is nothing in this ground of appeal

The NZKC erred in registering non-complying document

Mr Minchin next argued that the document accepted for registration, which as earlier noted was referred to in the evidence as the Lease Agreement, but which was in fact entitled “Application For Registration Of The Loan Or Use Of A Bitch For Breeding Purposes”, was simply a gateway into the NZKC administrative process and not a substantive agreement at all. There being no valid registered lease in terms of the regulations, Ms Faulkner, as the registered owner of Fudge, should have been treated as the breeder and therefore entitled to, as she did, request transfer of the puppies to the full register, and entitled to change their names.
Mr Minchin relied upon reg 8.1.3 which provides:
The breeder of any litter is deemed to be:—
(a)the owner or owners of the bitch according to [the NZKC] Register or
(b)the lessee of the bitch pursuant to an Agreement for Loan or Use of Bitch registered with [the NZKC] pursuant to these Regulations.
We agree that at first blush it does seem a peculiarity that in the evidence the parties (including Mr Dunne, the Director Secretary of the NZKC) have proceeded upon the basis that the Application for Registration form was itself a lease document. So too, it seems, did the Tribunal. On one reading of the Application Form it expressly contemplates a separate lease document being in existence, with the notation at the end “Please Complete Loan of Bitch Agreement Form in Triplicate”.
However, Mr Isac for the NZKC submitted that the application form is the NZKC standard form lease agreement. Because that submission is consistent with how the form is treated in the evidence we therefore proceed on that basis. That being the case, Ms Howard was the breeder for the purposes of reg 8.1.3 and the NZKC was correct to treat her as such.
Mr Minchin next argued that if the application form is to be treated as the lease for registration purposes, it is void for uncertainty. We do not accept that. It has the essential terms needed for the very limited purposes of the agreement; the term of lease, the identity of the parties, and which party is to be treated as the breeder for the purposes of the NZKC.
Mr Minchin also argued that the Judge erred in dismissing arguments in connection with the dating of the Lease Agreement, and in finding that the requirement that the application be provided in triplicate was a technicality. As to the latter, Mr Minchin relied upon reg 13.4 which requires that a “Loan or Use of Bitch for Breeding Purposes Agreement” be registered in triplicate within three months of the date of signing, and reg 3.6 which provides that “In all cases” original forms must be used, original signatures must be affixed and photocopies or facsimile copies of any form or signature are not acceptable.
Mr Minchin said that this lax approach to compliance with the rules contrasts with the NZKC’s refusal to accept the registration of Jenny’s offspring. He said that this was unfair because Jenny had been put to stud at a time when the NZKC had accepted Jenny for showing (even though she was on the restricted register at that time). Mr Minchin argued that the refusal to accept Jenny’s offspring for registration showed a strict application of the Rules and the Registration Regulations by the NZKC, which can be contrasted with its preparedness to overlook the failure to file triplicate copies of the Lease Agreement. He argued this inconsistency in requirement of strict compliance with the rules was unfair and that an adherence to procedure is a fundamental component of natural justice as it ensures that all are treated equally.
We agree with the Judge that the NZKC was entitled to proceed on the basis of the July date recorded in the Lease Agreement. The evidence suggests that Ms Howard did not receive the Lease Agreement until July. She could not sign it until then. The Lease Agreement was then properly dated as complete on that date.
However, Mr Minchin is correct that the evidence supports the view that only one copy of the Lease Agreement was filed. There is no suggestion in the evidence that Ms Faulkner filled in three copies of that document. But we agree with the Judge that the arguments as to the filing of triplicate original copies of the Lease Agreement are properly viewed as technical. Although Ms Faulkner may take issue with the dating of the Lease Agreement (an argument which has now been considered and rejected on many occasions) she did not claim that the Lease Agreement is a forgery.[18] If there had been technical non-compliance with the regulations in this regard, the NZKC had a discretion under reg 6.2 to accept registration notwithstanding such non-compliance. In light of the purely technical nature of this non-compliance and in view of the existence of this discretion, the Judge was well justified in declining to review the registration decisions on this ground.
[18]Ms Faulkner alleged that Ms Howard committed fraud when she dated the Lease Agreement. For the reasons we have given, we do not consider that the mere dating of a document with the date on which it was signed by the last counterparty amounts to fraudulent conduct.
There is also nothing in Mr Minchin’s point that the NZKC’s approach was inconsistent with the approach it took in connection with the offspring of Jenny. To accept Jenny’s offspring for registration would involve overlooking more than mere technical non-compliance with the Rules and the Registration Regulations. It would involve a departure from the fundamental scheme of registration that only the offspring of dogs on the full register may be registered on the full or restricted registers.

The NZKC’s initial determination to register the puppies was in breach of natural justice

Mr Minchin, rather faintly, again advanced this argument that the NZKC’s decision to register the puppies on Ms Howard’s application was in breach of natural justice. Whether or not there was any procedural deficiency (and we are not persuaded there was) in the subsequent proceedings before the NZKC, and before the Court, Ms Smith has had ample opportunity to be heard on issues material to registration. The Judge was right to reject this ground of review.

The NZKC erred in accepting puppies for registration with “offensive” names

The final point taken for Ms Smith relates to the naming of the puppies. It will be recalled that Ms Howard registered them with the names: “Mondial Catch Me if You Can”, “Mondial Do A Runna”, and “Mondial Where the Hell R Ya”. She named her own puppy “Mondial Gone in Sixty Seconds”.
The Judge found that the names were not offensive.[19] Ms Smith contested that determination. Mr Minchin said that the NZKC had a discretion to refuse to register offensive names. While accepting that these names would not offend the ordinary person, unfamiliar with the context, he submitted that they are, in context, offensive. First, their presence on the register evokes the dispute, and are a permanent reminder of the situation for Ms Smith. Secondly, the pedigree dog world is a small one, and it is probable that something of this dispute is known within that world. The existence on the register of the names Ms Howard gave the puppies gives her the imprimatur of being in the right in this dispute. He submitted that to allow one member to engage in such behaviour, where there is no real advantage to her but is “rubbing another member’s nose in it” is not conducive to facilitating good relations between its members, a value which underpins the overall scheme of the Rules and the Registration Regulations.
[19]Smith v New Zealand Kennel Club Inc, above n 1, at [93].
No party referred us to the rule or regulation which conferred upon the NZKC a discretion to decline to register an offensive name. However, Mr Isac accepted there is such a discretion and we therefore proceed on the basis that there is. Assuming that, as we do for present purposes, it seems to us that the task for the Executive of the NZKC to determine whether a name is offensive entails an objective assessment of whether the names are likely to offend members of the public.[20]
[20]See Stirling Bloodstock Ltd v New Zealand Thoroughbred Racing Inc [2017] NZHC 464, [2017] NZAR 547 at [36]; and South Pacific Airlines of New Zealand Ltd v Registrar of Companies [1964] NZLR 1 (SC). We consider that the relevant group for these purposes is the public, since the public encompasses both actual and potential pedigree dog owners.
Assessed in this way, there is nothing offensive about the names Ms Howard gave to the three puppies. And even if one does weigh the impermissible, and by this we mean the nature and content of the dispute between the parties, these names remain inoffensive. They are light hearted, but what is being named is a dog. Moreover, the names are in keeping with the name Ms Howard gave her own puppy (Mondial Gone in Sixty Seconds).
We have taken Mr Minchin’s argument at the highest, which is how it was presented before the Judge, that the names were intended to be provocative between the parties. But as now presented, Mr Minchin’s argument for Ms Smith is really that it is hurtful and embarrassing for Ms Smith that Ms Howard has retained the right to name the puppies, which makes her seem like the winner in her dispute, and that Ms Howard’s wrongful refusal to return Fudge set these events in motion. On the basis of this argument, any name Ms Howard gave the puppies would be offensive. On any view, this argument has no prospect of success.

Result

We have found no merit in any of the grounds of appeal advanced on behalf of Ms Smith.
The appeal is dismissed.
The respondent accepts that no order of costs should be made against Ms Smith because she is legally aided. It asks, however, that we record what costs order we would have made were it not for that fact. We accept that it is appropriate to do so. If Ms Smith were not legally aided, we would have ordered that she pay the NZKC costs for a standard appeal on a band A basis and usual disbursements.

Solicitors:
Thomas & Co, Auckland for Appellant
Gibson Sheat, Wellington for Respondent

[2019] NZCA 454

25 September 2019 at 10 am