Xing v Auckland Council - [2025] NZCA 433

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA498/2025

[2025] NZCA 433

BETWEEN WEIWEI XING
Applicant
AND AUCKLAND COUNCIL
Respondent

Court:	French P and Collins J
Counsel:	T A Hwang for Applicant
B V Magill for Respondent
Judgment:	27 August 2025 at 12 pm
(On the papers)

JUDGMENT OF THE COURT

The application for leave to bring a second appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by French P)

Background

Mr Xing pleaded guilty to a charge under s 57(2) of the Dog Control Act 1996

of being the owner of a dog that attacked a person. The District Court Judge,

Judge Davenport KC, discharged Mr Xing without conviction under s 106(1) of the

Sentencing Act 2002 on the condition that he pay reparation and that Mr Xing’s dog,

Bi Dong, be destroyed.[1] During the hearing, in response to the Judge’s question about the dog’s whereabouts, Mr Xing said he had not seen him since the day of the attack

[1] Auckland Council v Xing [2025] NZDC 12271 at [3].

and did not oppose an order being made for his destruction.

Section 57(3) of the Dog Control Act relevantly provides that in a proceeding

under s 57(2), the Court must order the destruction of the dog if it has committed an

attack unless satisfied that due to “exceptional” circumstances a destruction order is

not warranted. In the 2020 decision of Auckland Council v Hill,[2] this Court provided

[2] Auckland Council v Hill [2020] NZCA 52, [2020] 3 NZLR 603.

guidance as to what is to be taken into account when considering whether there are

exceptional circumstances.

This Court has also confirmed in a 2024 decision, Solicitor-General’s reference

from CRI-2022-404-212 ([2022 NZHC 31]), that there is no jurisdiction under s 57(3)

to make a destruction order in the absence of a conviction, such as where the dog

owner is discharged without conviction.[3]

[3] Solicitor-General’s reference from CRI-2022-404-212 ([2022] NZHC 31) [2024] NZCA 401,

In reliance on this latter decision, Mr Xing subsequently appealed the

destruction order for his dog to the High Court on the grounds of lack of jurisdiction.

On appeal, Wilkinson-Smith J observed that the District Court sentencing notes

did not specify the statutory provision under which the Judge was purporting to act.[4]

[4] Xing v Auckland Council [2025] NZHC 1874 at [25].

We pause here to interpolate that, in his submissions, Mr Xing contends that it was not

open to the Judge to determine that the District Court ordered destruction under the

Sentencing Act, instead of the Dog Control Act. However, in our view, that is to

misinterpret the High Court decision. The point the High Court Judge was making

was that it was uncertain which of the two statutory provisions the District Court Judge

was relying on.[5] Arguably, if anything, given that the District Court Judge was making

[5] The High Court judgment records that the District Court did not discuss the…

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: [2025] NZCA 433
Decision Date: 27 August 2025 at 12 pm

CaseChat Overview and Summary

In Xing v Auckland Council, the Court of Appeal of New Zealand considered an application by Weiwei Xing for leave to appeal a decision of the High Court that dismissed his appeal against a dog destruction order made by the District Court. The District Court had ordered the destruction of Mr Xing's dog after finding him guilty of being the owner of a dog that attacked a person, but discharged him without conviction on the condition that he pay reparation and that his dog be destroyed. The High Court held that the District Court did not have jurisdiction to make the destruction order under the Dog Control Act 1996, but did have jurisdiction under the Sentencing Act 2002. It quashed the destruction order and remitted the case back to the District Court. The Court of Appeal held that Mr Xing's proposed appeal did not raise a question of general or public importance, nor was there a risk of a miscarriage of justice if leave were not granted. The Court's approach was consistent with the authorities, the wording of the Sentencing Act, and the public safety policy of the Dog Control Act. The application for leave to bring a second appeal was declined.

The central legal issue was whether the High Court was correct in holding that the District Court had jurisdiction to make the dog destruction order under the Sentencing Act 2002. Mr Xing argued that a dog destruction order is a mandatory order under the Dog Control Act, and thus cannot be made by the District Court unless there is a conviction. However, the Court of Appeal rejected this argument, holding that dog destruction orders are no different from other mandatory orders, such as disqualification orders under the Land Transport Act 1998, which are clearly within the scope of the Sentencing Act. The Court found no arguable issue of statutory interpretation or policy that would justify rejecting the established position that dog destruction orders can be made by the District Court under the Sentencing Act in the absence of exceptional circumstances.

The Court of Appeal concluded that the High Court's approach was consistent with the authorities and the wording of the Sentencing Act. The discretion under the Sentencing Act enables a broader range of factors to be taken into account than those driving the conclusion that the statutory exception is not met. Although public safety concerns will still be relevant, pre-attack and post-attack history may be taken into account. The only aspect of the remittal relates to the dog destruction order, and Mr Xing still retains the benefit of a discharge without conviction. For all these reasons, the application for leave to bring a second appeal was declined.

Orders