Ash v City of Burnside — Making Sense of the Statutory Defence! — District Court ruling regarding dog Control Orders

27 May 2016

The District Court has handed down judgment in an appeal against a Control (Nuisance Dog) Order issued by the City of Burnside (the Order) in respect of a German Shepherd dog owned by the Appellants (the Dog). This judgment provides clarity around a legal issue that has been subject of much conjecture amongst animal management officers – that is, the application of the statutory defences under the Dog & Cat Management Act 1995 (the Act) to the decision to issue a Control Order.

In short, the Court has agreed with our position that the statutory defences do not apply to a decision to issue a Control Order.

Briefly, the facts of the case are:

  • the Council issued the Order following an incident involving the Dog. The circumstances were that the Dog, accompanied by another dog owned by the Appellants, was wandering at large in a reserve. An elderly man was walking in the reserve at the same time.  The dogs ran at the man displaying aggressive behavior. When they reached him, the Dog grabbed the man by his trousers and jumped on him, causing him to fall to the ground;
  • as a result of the incident the man sustained bruising, a dislocated back and a grazed elbow. He subsequently reported the incident to the Council. His evidence was that he walks in the reserve every day and had seen the same dogs wandering at large on previous occasions, including later on the same day as the incident; and
  • the Appellants informed the Council that the dogs were able to escape from their property due to an electronic malfunction with the front gate. There was evidence that the gate had failed on a previous occasion and the Appellants had engaged a person to fix it.

On the evidence obtained during its investigation, the Council formed the view that the Dog was a nuisance and had attacked/harassed the elderly man in circumstances giving rise to an offence under the Act (by this time the second dog had died). The Council determined to issue the Order.

The Appellants, concerned that the Order required the Dog to be on a leash at all times when outside of their property and wanting the ability to exercise the Dog off-leash, appealed against the Order.

On appeal, the Appellants’ lawyer challenged that the incident was in the nature of an “attack” for the purposes of the Act and, that the Dog is a nuisance. Further, it was submitted that the incident did not create an offence under the Act because the statutory defence under section 86 of the Act assisted the Appellants in the circumstances.  This is relevant because the Act requires a council to be satisfied, before issuing a Control (Nuisance Dog) Order, that the dog in question has ‘attacked, harassed or chased a person … in circumstances that would constitute an offence against (the) Act (our emphasis).

Section 86 of the Act provides a general defence to a charge of an offence under the Act as follows:

“It is a defence to a charge of an offence against this Act if it is proved … that the offence was not committed intentionally and did not result from any failure on the part of the defendant to take reasonable care to avoid the commission of the offence.”

The Appellants’ argued that section 86 of the Act assisted them because the offence was not intentional and did not result from any failure on their part to take reasonable care.

Master Rice disagreed with the Appellant’s submissions and held that:

  • the level of the incident would be best described as an ‘attack’ of … medium severity”. It was frightening to the victim and caused him to be knocked down; and
  • the Appellants did not take reasonable steps to prevent the offence. Whilst the fact of gate repairs was evidence of taking some steps, the gate continued to be open.  The Court agreed with us that the dogs could have been confined to the back yard.

Most importantly, however, Master Rice agreed with our submission that the general defence under the Act only applies to criminal proceedings and not to Control Orders.  Specifically, he said:

 “There was no ’charge’ of an ‘offence’ where (the Appellants)…were ‘defendants’… I agree with the respondent’s position that the order … is not a criminal proceeding and the defence in section 86 has no application. The construction is supported by section 58(10)… (which) illustrates the difference between the Control Orders and criminal proceedings”.

In all of the circumstances, the Court found that the Council’s approach was sound and its decision to issue the Order was appropriate and responsible. Accordingly, the appeal was dismissed.

This case is important because it is relevant to all decisions to issue Control Orders under the Act. It serves to clarify and is authority for the fact that the defences under the Act do not apply in the context of Control Orders. Accordingly, there is no reason why a Council Officer need turn his/her mind to the application of the defence under section 86 of the Act in considering whether or not to issue a Control Order under the Act.