Telford v Auckland Council - [2023] NZHC 31

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-404-212

[2023] NZHC 31

BETWEEN
ROBERT TELFORD

Applicant

AND

AUCKLAND COUNCIL

Respondent

Hearing: 3 October 2022; further submissions 12 and 19 October 2022

Appearances:

BA Edwards for the Applicant

LL Dempsey and V Schaaf for the Respondent

Judgment:

27 January 2023

JUDGMENT OF FITZGERALD J

This judgment was delivered by me on 27 January 2023 at 3.00pm

Registrar/Deputy Registrar

Date……………………………

To: B Edwards, Tauranga
Auckland City Council, Auckland

ROBERT TELFORD v AUCKLAND COUNCIL [2023] NZHC 31 [27 January 2023]

Introduction

[1] Mr Telford appeals against a dog destruction order made in the District Court pursuant to s 57(3) of the Dog Control Act 1996 (the Act).1 The order was made as a result of Mr Telford’s dog, Suki, a 12-year-old female Staffordshire Bull Terrier Cross, escaping from his property and onto Waterview Park and attacking another dog.2

[2] Mr Telford was discharged without conviction. As a result, a question of law arises as to whether the Judge had the power to make a dog destruction order. In other words, is the conviction of a dog’s owner a precondition to an order being made under s 57(3) for the destruction of the dog?

[3] There are divergent lines of authority in this Court on this question of law. It does not appear that all of the relevant authorities were put before the District Court Judge. In particular, the most recent High Court decision on the topic was not before the Judge; in Adams v South Taranaki District Council, Isac J concluded a conviction is a precondition to the making of a dog destruction order.3 Neither party addressed this legal issue in their primary submissions or at the appeal hearing. I accordingly sought and received further written submissions.

[4] Telescoping to the conclusion I have reached, I find that a conviction is a precondition to the making of a dog destruction order under s 57(3) of the Act. The Judge accordingly had no jurisdiction to make the destruction order under s 57(3). There is, however, a residual discretion to make a dog destruction order pursuant to s 106(3)(c) of the Sentencing Act 2002. This gives the court, on granting a discharge without conviction, the discretion to make any order the court is “required to make” on conviction. While I consider that a dog destruction order is one the court is “required to make” on conviction, I do not exercise my discretion to make such an order in this case. The appeal must accordingly be allowed and the destruction order quashed.

1      Auckland Council v Telford [2022] NZDC 10026.
2      I note that while Suki is described in the summary of facts as a Staffordshire Bull Terrier Cross, Mr Telford deposes that she is in fact an American Staffordshire Terrier. I do not place any weight on what differences, if any, there are between the breeds.
3      Adams v South Taranaki District Council [2021] NZHC…

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: [2023] NZHC 31
Decision Date: 27 January 2023

CaseChat Overview and Summary

In the High Court of New Zealand, Fitzgerald J addressed an appeal by Robert Telford against a dog destruction order made by the District Court. Telford's dog, Suki, a Staffordshire Bull Terrier Cross, had escaped from his property and attacked another dog in a public park. Telford was discharged without conviction for the offence under the Dog Control Act 1996. The central issue before the Court was whether a conviction of the dog owner is a necessary precondition to a dog destruction order under s 57(3) of the Act. The Court found that a conviction is indeed a prerequisite, following the reasoning in Adams v South Taranaki District Council. The Judge had no jurisdiction to make the destruction order under s 57(3). However, the Court did retain a discretion to make such an order under s 106(3)(c) of the Sentencing Act, but Fitzgerald J decided not to exercise this discretion in this case. The appeal was therefore allowed, and the destruction order was quashed.

Orders