Wallace v Wellington City Council - [2014] NZHC 2352

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2014-485-6517 [2014] NZHC 2352

BETWEEN
RICHARD MARTIN WALLACE

Applicant

AND

WELLINGTON CITY COUNCIL Respondent

Hearing: 25 September 2014

Counsel:

Applicant in Person
M K Booth for Respondent

Judgment:

26 September 2014

JUDGMENT OF SIMON FRANCE J

[1] Mr Wallace was the owner of a German Shepherd dog that strayed and was impounded on 7 March 2013. A written notice was sent the next day to the last known address of Mr Wallace. It advised Mr Wallace of the situation and that steps were required to reclaim the dog. It also set out what would happen if these steps were not taken.

[2] In addition to the letter, the Animal Services division of the Council left a phone message on the night the dog was impounded. Mr Wallace’s statement of claim indicates he retrieved the message that day.

[3] Evidence filed by the Council indicates that Mr Wallace’s son contacted Animal Services on 12 March 2013. The son was told where the dog was, and what was needed. He was also advised that “rehoming” could occur if the dog was not
claimed.

WALLACE v WCC [2014] NZHC 2352 [26 September 2014]

[4] On 15 March 2013 Mr Wallace himself rang Animal Services. The appropriate person was not available but rang back 10 minutes later. Mr Wallace’s phone was unanswered. A phone message was again left, advising the fees incurred to date and when the dog could be collected. There was no further contact and on
18 March 2013 the dog was rehomed.

[5] On 26 May 2014 Mr Wallace filed judicial review proceedings. It is to be immediately noted this was 14 months after the dog had been placed with other owners. The statement of claim records some factual material. It is said Mr Wallace went to the address he had been told, only to find it was incorrect. He then approached the Council only to find the dog had been rehomed. He consulted a lawyer, and then went to Community Law Centre. They advised the writing of a letter which he says was unanswered.

[6] Mr Wallace then spent a year tracking down the current whereabouts of his dog. Once successful, he asked for it back but the new owner declined. Mr Wallace then filed these proceedings. He claims the decision of the Council not to reverse its original decision and get the dog back for him was unreasonable. The relief sought is an order returning the dog.

[7] On 30 June 2014 the Council filed a statement of defence, and accompanied it with a memorandum noting the difficulties it faced in responding – no ground for review, or legal basis for the claim, had been identified by Mr Wallace, what the Council allegedly did wrong is not identified, and the relief sought (return of the dog) is not capable of being granted. The Council has no control over the dog and no ability to compel its return.

[8] On…

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: [2014] NZHC 2352
Decision Date: 26 September 2014

CaseChat Overview and Summary

In the case of Wallace v Wellington City Council, Richard Martin Wallace sought judicial review of the Wellington City Council's decision to rehome his German Shepherd dog after it had been impounded. Wallace argued that the Council's decision was unreasonable and sought an order for the dog's return. The primary dispute in this case revolved around the circumstances of the dog's impoundment, the subsequent communication between Wallace and the Council, and the Council's decision to rehome the dog. Wallace contended that the Council's decision to rehome his dog was unreasonable and potentially biased against him.

The legal issues that the court had to decide included whether the Council's decision to rehome Wallace's dog was unreasonable and whether the court had the power to compel the return of the dog. The court needed to determine if the Council's decision-making process was flawed and if the relief sought by Wallace was within the court's jurisdiction. The court also had to consider the statutory framework governing the disposal of impounded dogs, specifically section 69(2) of the Dog Control Act 1996, which provides the Council with the discretion to dispose of an impounded dog after a certain period.

The court found that while Wallace's claims of bias and unreasonableness against the Council could potentially form a basis for review, the relief sought—the return of the dog—was not available. Under section 69(2) of the Dog Control Act 1996, the Council has the discretion to dispose of an impounded dog after seven days from the issuance of a written notice to the owner. The Act does not provide any recourse to the dog owner and no other provision allows for the Council to reclaim the dog. The court held that it had no power to compel the return of the dog, and even if it did, it would be difficult to imagine such an order being made given the significant delay in bringing the proceedings. Consequently, the court granted the Council's application to strike out the proceedings, with the Council entitled to costs and reasonable disbursements.

Orders