Snodgrass v Kapiti Coast District Council

[2014] NZHC 3153

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2014-485-9464 [2014] NZHC 3153

UNDER	the Judicature Amendment Act 1972
IN THE MATTER OF	an application for judicial review
BETWEEN	JULIE ANNE SNODGRASS Plaintiff
AND	KAPITI COAST DISTRICT COUNCIL Defendant

Hearing:	15 October 2014
Appearances:	A Beck for the Plaintiff D R La Hood for the Defendant
Judgment:	10 December 2014

JUDGMENT OF MALLON J

Table of Contents

Introduction ....................................................................................................................................... [1] Background........................................................................................................................................ [2] The pleading ...................................................................................................................................... [6] The submissions............................................................................................................................... [10] Is the first cause of action clearly untenable? ............................................................................... [13] Is the second cause of action clearly untenable?........................................................................... [21]

Result ................................................................................................................................................ [24]

SNODGRASS v KAPITI COAST DISTRICT COUNCIL [2014] NZHC 3153 [10 December 2014]

Introduction

[1]      Julie Snodgrass was convicted of being the owner of a dog (Beau) who attacked  another  dog.     An  order  that  Beau  be  destroyed  was  also  made. Ms Snodgrass  has  applied  for  judicial  review  seeking  declarations  about  the defendant’s (the Council) process in bringing the charge and orders that would stop Beau from being destroyed.  The Council applies to strike out that application on the grounds that it is an abuse of process and discloses no reasonably arguable cause of action.

Background

[2]      Beau is a cross-breed Terrier.   On 11 September 2012 Ms Snodgrass and Beau were at a park in Paraparaumu.  An incident took place between Beau and a dog owned by Ms Sutherland.  Ms Sutherland was an employee of the Council at that time.  Ms Sutherland made a complaint to the Council.  The Council impounded Beau and said that an investigation would be carried out.

[3]      On 7 November 2012 Ms Snodgrass was charged with being the owner of a dog that attacked another dog, an offence under s 57(2) the Dog Control Act 1996. She pleaded not guilty.  A defended hearing took place in the District Court in May

2013.  Ms Snodgrass contended that Beau had not attacked the other dog, but rather had engaged in rough play.   On 17 June 2013 the District Court Judge gave his judgment finding that the offence had been proven beyond reasonable doubt.1    The

Judge imposed a fine of $500 and ordered reparation of $3,484.10.2   An order that

Beau be destroyed was also made.

[4]      Ms Snodgrass lodged an appeal against conviction and sentence.  The appeal was brought on the basis of trial counsel incompetence.   It was contended that relevant evidence about Beau was not called (namely good character evidence about Beau  and  evidence from the vet  who treated the other dog)  and  irrelevant  and unfairly prejudicial evidence (about previous incidents involving Beau) was admitted and not adequately challenged. The appeal was dismissed in a judgment given in

June 2014.3

1      Kapiti District Council v Snodgrass DC Porirua CRI-2012-091-3560, 17 June 2013.

2      Kapiti District Council v Snodgrass DC Porirua CRI-2012-091-3560, 5 July 2013.

3      Snodgrass v Kapiti District Council [2014] NZHC 1333.

[5]      An application to the District Court for rehearing was also dismissed in a decision  given on  2 July 2014.   That  was because, as originally advanced, the application concerned new evidence traversed at the High Court appeal.  In addition, it was advanced on the basis that it had just come to light that the complainant dog owner was an employee of the Council.  The Judge considered there was no real risk that this new evidence could have affected the outcome.

The pleading

[6]      On 24 July 2014 Ms Snodgrass filed a claim seeking judicial review.  Two causes of action are pleaded.

[7]      The first cause of action is as follows:

(a)      The Council has standard procedures relating to incidents with dogs, which include conducting an investigation as to whether a dog should be classified as menacing and, in the course of that investigation, giving the owner an opportunity to be heard and making inquiries as to the appropriate course of action.

(b)Ms Snodgrass had a legitimate expectation that the Council would follow its procedures in relation to Beau, but the Council did not do so and instead escalated the matter and decided to prosecute Ms Snodgrass.

(c)      As a result of the failure to follow its procedures, Ms Snodgrass was deprived of the opportunity to respond to the complaint, and to have Beau dealt with as a menacing dog rather than being subject to a destruction order.

[8]      The second cause of action is as follows:

(a)      The Council had a duty to exercise its powers for a proper purpose and to make consistent and impartial decisions.

(b)The Council failed to comply with this duty because it did not treat Ms Snodgrass in the same way as other dog owners subject to its jurisdiction, the action it took was disproportionate to the harm suffered, and the decision to prosecute was made because the complainant was an employee of the Council.

(c)      As a result, Ms Snodgrass has been prosecuted and Beau is the subject of a destruction order that was not required in the circumstances of the case.

[9]      Ms Snodgrass seeks:

(a)       an order declaring that the Council failed to follow proper processes; (b)      an order declaring that the Council’s decision to prosecute was not

impartial and was inappropriate;

(c)       a permanent stay of the order that Beau be destroyed;

(d)      an order directing the Council to release Beau to Ms Snodgrass; and

(e)       costs.

The submissions

[10]     For the purposes of the strike out application the pleaded facts are assumed to be true.4   The question is whether the claims for relief are so clearly untenable that

they could not be granted.5

4      Objection was taken to an affidavit filed on behalf of the Council to the extent that it traversed matters of fact which were not accepted by Ms Snodgrass and/or were regarded as irrelevant.  I have therefore not considered those matters in reaching my decision on the application before me.  One of the purposes of the affidavit was to provide the Court with copies of the District Court and High Court decisions referred to above.   There can be no objection to the Court considering those judgments which are available to the Court in any event.

5      Attorney-General v Prince and Gardner [1998] 1 NZLR 262 (CA) at 267; Couch v Attorney- General [2008] NZSC 45, [2008] 3 NZLR 725 at [33]. The same test applies to an application for judicial review: Southern Ocean Trawlers Ltd v Director-General of Agriculture and Fisheries [1993] 2 NZLR 53 (CA) at 63.

[11]     Mr La Hood, for the Council, has been unable to find any case where judicial review of the prosecutorial discretion has been sought following conviction, let alone following the exercise of appeal rights.  He says that on any analysis the claim is a challenge to the findings in the criminal proceeding and therefore an improper collateral attack on them.  He says that the claim for a stay of the order to destroy Beau and the claim to order that Beau be released would conflict with the High Court’s decision to dismiss the appeal.   He says that the claim for declarations is pointless because they could not affect the conviction or the order that has been made.

[12]     Mr Beck, for Ms Snodgrass, contends that the focus of her claim is the legitimacy of the Council’s decision-making process.   He submits that there is a public interest in holding a public decision-maker to account.  He submits that there is jurisdiction to review the Council’s decision-making process and that a declaration is  an  available remedy for an  unlawful  process.    He also  submits  that there is jurisdiction to order a stay of criminal proceedings post conviction.6   He says that in these circumstances the Court cannot be certain that the claim will not succeed.

Is the first cause of action clearly untenable?

[13]     The first cause of action is not dissimilar to some of the grounds of review alleged in Polynesian Spa Limited v Osborne.7     In that  case a death at a pool complex led to a prosecution under the Health and Safety in Employment Act 1992. An application for judicial review was brought in respect of the investigation which led to the decision to bring the prosecution.  The Occupational Health Service, which administered the Act, had detailed documents setting out the process to be followed

in such an investigation as well as its enforcement policy.

[14]     As  was  held  in  that  case,  there  may be  a  right  to  natural  justice  in  an investigation prior to the decision to prosecute.  However any such right may extend to no more than giving the person who is the subject of the investigation an opportunity to respond to the essential allegations against them.  Further, failure to

comply with an obligation of that nature is “most unlikely to result in a successful

6      Moevao v Department of Labour [1980] 1 NZLR 464

7      Polynesian Spa Limited v Osborne [2005] NZAR 408 (HC).

application for judicial review.”8     That is because judicial review will rarely be appropriate where there is a readily available alternative remedy.9   In the context of a prosecution, the trial process, the court’s jurisdiction to prevent an abuse of process, and appeal rights provide a readily available remedy.10

[15]     That was the case here.  To the extent that the Council’s alleged failings in its investigative processes meant that a prosecution should not have been brought, it was open to Ms Snodgrass to apply for a stay of that prosecution in the District Court proceeding or by way of judicial review prior to the hearing of the charge.  To the extent that the Council’s alleged failings were relevant to whether the charge was proven or whether the order for destruction should be made, they were able to be traversed in the hearing.

[16]     In fact the alleged failings were traversed at the hearing.  As discussed in the District Court judgment, counsel for Ms Snodgrass “took some issue with the procedure adopted by [the Council] in its dealings with Ms Snodgrass.”11     The evidence was that, when the Council received a call from the complainant, two animal control officers went to Ms Snodgrass’ address to seize Beau.  One of those officers gave evidence that at this time she had given Ms Snodgrass the opportunity

to respond to this incident and two earlier incidents involving Beau.  Ms Snodgrass also received a letter from the Council dated 12 September 2012 about these incidents.

[17]     Counsel for Ms Snodgrass at the District Court hearing contended that Ms Snodgrass “was not given any opportunity to respond properly to any of the complaints”.12    He also submitted that Ms Snodgrass was coerced into producing a statement setting out her version of events and was never cautioned.  The District Court Judge noted the evidence that Ms Snodgrass did have the opportunity to respond, if she had asked for more time she would have been given it, and Ms

Snodgrass did write a letter putting her side of the story.  In these circumstances the

8 At [91].

9      Gill v Attorney-General [2010] NZCA 468, [2011] 1 NZLR 433 at [19].

10     Polynesian Spa Limited v Osborne, above n 7, at [91].

11     Kapiti District Council v Snodgrass, above n 1, at [22].

12 At [22].

Judge concluded that “there is nothing in the Council’s procedure that has caused substantial prejudice to Ms Snodgrass’s ability to put her case to Council and defend this charge.”13

[18]     I therefore consider that the first cause of action cannot succeed.   Had this judicial review application been brought prior to the hearing of the charge and the exercise of the right of appeal and the application for rehearing, it would have had difficulty for two reasons.  First, all that was required was that Ms Snodgrass had the opportunity to respond to the allegations.   The evidence accepted at the District Court hearing was that she did have that opportunity.  Secondly, even if her right to be heard  or her legitimate expectations  about process  were breached  it  is most unlikely that any relief would have been granted.  That is because, regardless of the process that led to the charge, that charge and whether an order for destruction should be made were able to be determined on the evidence and the court would have had jurisdiction to prevent an abuse of process.

[19]     Now that the charge has been established and rights to appeal and to apply for a rehearing have been exercised, the claims for relief have no prospect. As explained in Hunter v Chief Constable of the West Midlands Police:14

The abuse of process which the instant case exemplifies is the initiation of proceedings in a court of justice for the purpose of mounting a collateral attack upon a final decision against the intending plaintiff which has been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the court by which it was made.

[20]     The declarations Ms Snodgrass seeks would involve traversing matters that were able to be, and to some extent were, traversed in the criminal proceeding.  The stay  of  the  order  for  destruction  and  an  order  that  Beau  be  released  that  Ms Snodgrass seeks are orders that would be inconsistent with the High Court decision

dismissing the appeal.   The declaratory and other orders sought are therefore an

13 At [22].

14     Hunter v Chief Constable of the West Midlands Police [1982] AC 529 (HL) at 541, cited with approval in Lai v Chamberlains [2006] NZSC 70, [2007] 2 NZLR 7 at [28] to [31]; see also McLachlan v Vector CA157/05, 28 February 2006 at [27] to [30]; Rafiq v Auckland District Court [2013] NZHC 2640 at [15] to [17]; Siemer v Chief Justice of the New Zealand Supreme Court HC Auckland CIV-2009-404-8435, 22 August 2011 at [5] to [9].

improper collateral attack on the conviction and the destruction order made in the

District Court and upheld in the High Court.

Is the second cause of action clearly untenable?

[21]    The second cause of action is directed at the decision to prosecute Ms Snodgrass.  The allegation is that, at least in part because the complainant was an employee of the Council, the Council decided to prosecute Ms Snodgrass rather than to take alternative lesser options for dealing with Beau.   Like the first cause of action, this cause of action has no prospect of success.

[22]     As discussed in Polynesian Spa, there is jurisdiction to review a decision to prosecute taken in bad faith or for a collateral purpose.15    However, for substantial policy and  constitutional reasons,  the courts will only intervene in rare cases.16

Those reasons include that there are proper constitutional boundaries to be observed; criminal proceedings should not generally be subject to collateral challenge; whether a prosecutor was correct to bring a charge is tested at the hearing of the charge; and an application to stay criminal proceedings for an abuse of the court’s processes can be brought.17

[23]     Although there is jurisdiction to review an improper motive in the decision to prosecute Ms Snodgrass, these policy and constitutional reasons mean that this is not a case where it would be appropriate to grant relief.   The Council’s view that a charge should be brought, even if it was an impartial decision and improperly motivated, has now been tested through the criminal proceeding.   The charge has been established.18    To grant the relief that Ms Snodgrass now seeks would be an

improper collateral attack on that criminal proceeding.

15     Polynesian Spa Limited v Osborne, above n 7, at [64].

16     At [62] and [68].

17 At [62].

18     It is not enough that a prosecutor has an improper or ulterior motive, if the criminal proceeding is nevertheless commenced and continued on an adequate foundation: see Williams v Spautz [1992] HCA 34, (1992) 174 CLR 509 at 522; Grimwade v State of Victoria (1997) 90 A Crim R

526 (VSC) at 538 to 539; Cash for Scrap Limited v Auckland Regional Council HC Auckland CIV-2006-404-4270, 9 October 2007 at [123]; summarised in Solicitor-General of New Zealand v Siemer HC Wellington CIV-2010-404-8559, 13 May 2011 at [58] to [69].

Result

[24]     The application to strike out the claim is granted.  At the time of the hearing Ms Snodgrass was awaiting a decision on the grant of legal aid.  If that grant is not made and costs are sought by the Council and cannot be agreed between the parties, leave is reserved to file brief submissions (no more than three pages) confined to the matters in dispute by no later than 30 January 2015.

Mallon J