Walker v Nelson District Court - [2018] NZHC 1967

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CIV-2018-442-4

[2018] NZHC 1967

UNDER the Judicial Review Procedure Act 2016

IN THE MATTER OF

an application for review of a decision of the District Court

BETWEEN

JENNY LYN WALKER

Applicant

AND

NELSON DISTRICT COURT

First Respondent

AND

NELSON CITY COUNCIL

Second Respondent

Hearing: 2 August 2018

Appearances:

J L Walker, Applicant in person

K E Mitchell for the Second Respondent

Judgment:

2 August 2018

JUDGMENT OF COOKE J

[1] On 24 March 2017 the applicant, Ms Walker was convicted of a charge of owning a dog that had attacked a person under s 57(2) of the Dog Control Act 1996 (the Act).1 The Judge imposed a $550 fine, ordered the applicant to pay $500 in emotional harm reparations to the victim of her dog’s attack, and ordered the dog be destroyed pursuant to s 57(3) of the Act.2 Ms Walker’s principal defence at the hearing centred on the absence of fault defence, available at common law for strict liability offences, which the Judge held had not been satisfied.

1 Nelson City Council v Walker [2017] NZDC 7141.
2 Nelson City Council v Walker [2017] NZDC 6372.

WALKER v NELSON DISTRICT COURT [2018] NZHC 1967 [2 August 2018]

[2] Ms Walker appealed to the High Court. The appeal focused on the total absence of fault defence, whether there is jurisdiction to order destruction of the dog if it was made out, and whether there were exceptional circumstances such that the destruction order was not warranted. In a judgment dated 13 April 2017 the Court held that the District Court had appropriately interpreted and applied the relevant provision, such that the conviction appeal was dismissed.3 The Court further held that there were no exceptional circumstances that would lead to the destruction order not being made so that the dog (ZiaZia) should be destroyed. The appeal was dismissed.

[3] Ms Walker sought leave to appeal to the Court of Appeal, which by judgment dated 17 November 2017 declined to give leave.4 The Court rejected the arguments made to it and held there was no miscarriage of justice, or matter of general or public importance.5 Ms Walker was legally represented in the application for leave to appeal. Her previous appearances had been in person.

[4] On 27 November 2017 Ms Walker attempted to apply for leave to appeal to the Supreme Court. The Supreme Court did not accept the application on the basis of lack of jurisdiction. ZiaZia was euthanised on 8 December 2017.

[5] On 22 December 2017 these judicial review proceedings were filed by Ms Walker against the District Court and the Nelson City Council. In them Ms Walker contends that the courts had misinterpreted the section as a strict liability offence, and that there was no evidence of want of reasonable care. She seeks declarations setting aside her conviction, setting aside the order for destruction, and a declaration that the second respondent acted…

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: [2018] NZHC 1967
Decision Date: 2 August 2018

CaseChat Overview and Summary

In the High Court of New Zealand, Jenny Lyn Walker sought to challenge the decision of the Nelson District Court that found her guilty of owning a dog that had attacked a person, ordering her to pay a fine, reparations, and for the dog to be destroyed. Walker appealed the decision to the High Court and then sought leave to appeal to the Court of Appeal and the Supreme Court, both of which were declined. She then filed judicial review proceedings seeking to set aside the conviction and destruction order, and to declare the second respondent had acted prematurely in breach of the New Zealand Bill of Rights Act 1990. The Nelson City Council sought to strike out the proceedings on the basis they were an abuse of process.

The court found that the principles of finality in litigation and res judicata meant that the issues raised in the judicial review proceedings had already been conclusively determined and could not be re-litigated. The court emphasised the importance of the rule that makes conclusive final determinations reached in the judicial process, and that judicial review proceedings cannot be used as a collateral attack on such proceedings. The court held that it would be an abuse of process to engage in re-litigation of the substantive questions and accordingly struck out the proceedings. The court awarded costs to the Council on a 2B basis.

Orders