Xu v Auckland Council - [2015] NZHC 3024

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-282 [2015] NZHC 3024

BETWEEN
ZHENG XU

Appellant

AND

AUCKLAND COUNCIL Respondent

Hearing: 30 November 2015

Counsel:

Z Chen for Appellant
L Evile (on instructions from V Tamatea) for Respondent

Judgment:

2 December 2015

JUDGMENT OF BREWER J

This judgment was delivered by me on 2 December 2015 at 12 noon pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors: Law & Associates (Auckland) for Appellant
Auckland Council (Auckland) for Respondent

XU v AUCKLAND COUNCIL [2015] NZHC 3024 [2 December 2015]

Introduction

[1] Ms Xu owns a German Shepherd dog called Harry. She bought him in 2013 as a companion and as a guard dog. Ms Xu is emotionally attached to Harry, not only as a devoted dog owner but because he is a link to her nephew who lived in her home until he was killed in a motorcycle accident.

[2] On two occasions Harry has attacked people. The first occasion was in 2013. Harry escaped from his cage and bit a neighbour on the buttocks. Ms Xu was charged as a result, pleaded guilty and was fined. The Judge did not order Harry to be destroyed.

[3] The second occasion was in 2014. Ms Xu and her husband were walking Harry in a public park at about 10:00 pm. A woman who was walking nearby with her family laughed suddenly. Harry pulled his leash from the husband’s grasp and rushed at the woman. The woman saw Harry coming and tried to hide behind a tree, but he jumped on her and knocked her down. He bit her on her left side just below her armpit – fortunately not causing any serious injury. The woman’s husband drove Harry off, but he charged at them again. Mr and Mrs Xu managed to intervene and regain control of Harry. The woman was treated in hospital and required a tetanus injection and antibiotics.

[4] Ms Xu was again charged with being the owner of a dog who attacked a person. Again, she pleaded guilty and was fined. This time the Judge ordered that Harry be destroyed.1 Ms Xu does not object to being fined. But she very much wants Harry to live. This judgment determines Ms Xu’s appeal against the destruction order.

Discussion

[5] There is an age-old bond between dogs and people. They kept watch at our camp fires, guarded our flocks and herds, protected our homes and our families and provided devoted companionship. To this day they commonly provide companionship, and in return many owners are devoted to their dogs. The bond is
strong.

1 Auckland Council v Xu [2015] NZDC 16446, at [14].

[6] But dogs can be dangerous to people. They are carnivores and they are pack animals. Like people, nature and nurture can make them dangerous. And, like people, there is a spectrum of dangerousness. Some dogs are vicious. There have been many horrendous attacks on people by vicious dogs which have resulted in maiming or even…

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: [2015] NZHC 3024
Decision Date: 2 December 2015

CaseChat Overview and Summary

The case of Xu v Auckland Council involved Ms Xu, the owner of a German Shepherd dog named Harry, appealing against a destruction order made by a Judge in the District Court. Harry had attacked two people on separate occasions, first in 2013 when he escaped from his cage and bit a neighbour, and again in 2014 when he attacked a woman in a public park. Ms Xu was fined on both occasions, but only the second attack resulted in an order for Harry's destruction. Ms Xu argued that Harry was not a vicious dog and could be trained to behave, and she took responsibility for his actions, promising to do everything necessary to rehabilitate him if the appeal was allowed.

The legal issue before the Court was whether the circumstances of the second attack on the woman were exceptional, such that the statutory requirement for the destruction of Harry should not be applied. The Court had to consider various factors, including the nature of the attack, Ms Xu's history as an owner, whether the dog had behaved similarly in the past, the steps taken to prevent such an attack, and the reasons why those steps did not prevent the attack. Ms Xu argued that the attack occurred under exceptional circumstances, such as it being late at night in a poorly lit park, Harry was normally muzzled but not on this occasion, and he had never been to the park before and was nervous.

The Court found that the attack was not exceptional, as it was ordinary for a dog to attack a person lawfully present in a public park who did nothing to provoke the attack except laugh out loud. The fact that Harry was new to the park and nervous went to the danger he posed, but did not render the circumstances of the attack exceptional. The previous attack by Harry was also significant, as it demonstrated that this was not exceptional behaviour for him. The Court concluded that there were no exceptional circumstances of the offence, and therefore, the appeal was dismissed.

In conclusion, the Court found that the statutory requirement for the destruction of Harry should be applied, as the circumstances of the second attack were not exceptional. The Court emphasised the importance of the bond between dogs and people, but also recognised the danger that dogs can pose to people. The decision highlights the need for dog owners to take responsibility for their pets and ensure they are properly trained and controlled to prevent attacks on people.

Orders