Middleton v Timaru District Council [2012] NZHC 3471 (17 December 2012)

Last Updated: 10 February 2013

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CRI-2012-476-000012
CRI-2012-476-000011
CRI-2012-476-000010
CRI-2012-476-000009

CRI-2012-476-000007 [2012] NZHC 3471

BETWEEN RODGER EDWARD MIDDLETON Appellant

AND TIMARU DISTRICT COURT Respondent

Hearing: 17 December 2012

Appearances: Appellant in Person

C O'Connor for the Respondent

Judgment: 17 December 2012

_{ORAL JUDGMENT OF FOGARTY J}

[1] Mr Middleton protests the jurisdiction of this Court but also, consistent with that, seeks leave to appeal against a judgment of the District Court, Justices of the Peace K J Dey and J A Johnson on 26 November 2010, and the imposition of the fine and costs imposed on the same date. That was some time ago. On the normal requirements of the law, the appeal is way out of time. But there is no doubt that there is merit in seeking leave to appeal out of time because the transcript of the hearing was not made available for some considerable time, and only after there had been a complaint by Mr Middleton to the Minister. I think there was some degree of confusion; it was not a deliberate non-provision of the transcript. In any event, I am satisfied that Mr Middleton has reasonable grounds for explaining why he is so late in appealing against the decision. Therefore, leave to appeal was granted in the course of oral argument, and I confirm it now.

_{[2] I then turn to the question of the merits of the appeal.}

MIDDLETON V TIMARU DISTRICT COURT HC TIM CRI-2012-476-000012 [17 December 2012]

[3] Mr Middleton keeps dogs. He was originally charged with 28 offences under the Dog Control Act 1996. Due to the large number of alleged offences, and potentially the large number of fines, the Timaru District Council decided to proceed with five only representative charges at the hearing on 26 November 2010. Four of these charges, labelled B, C, D and E in the decision of the Justices of the Peace, were infringement notices issued on 2 October 2009 for non-registration of dogs, Blurr, Ruby, Cassie and Janis.

[4] On 2 October 2009, it would appear that these dogs had been seized by officers of the Timaru District Council who entered the property where the dogs were held, cutting locks to gates, and removed the animals. In order to get the dogs back, Mr Middleton, on 7 October 2009, paid to register them and at that time paid a late payment fee. All in all, he has proved to my satisfaction that he did register the dogs on 9 October 2009 by production of the receipt fee, which names the dogs and has the date. But he was not able to prove the late fee payment, which he estimates at $1,500, but I am making that as a finding of fact. I am satisfied some sort payment, in that order, would have been made.

[5] In this regard, he says it is double jeopardy to pay a late fee and then still be fined for not registering the dogs on 2 October 2009. That argument has merit. I am satisfied that had the Justices of the Peace known about the registration on 9 October

2009 and the payment of the late fee, they would not have fined him in respect of the non-registrations, $300 on each charge plus Court costs of $132.89 and witness fees of $75 each to Mrs McMillan and Mr Catchpole, nor the legal fees of $400 to the Timaru District Council.

[6] That leaves the question of whether or not, however, there was a valid conviction in respect of those four infringement notices for non-registration of those four dogs, and, secondly, whether or not there was a valid conviction for the infringement notice issued on 6 August 2009, which was for the failure of the defendant, as owner of the dog Blurr, to have the dog implanted with a functioning microchip transponder.

[7] I deal with the question of ownership first, because that is included in all the infringement notices. Mr Middleton has explained that he is the director of a company, Aoraki Eco Adventure Ltd, and that the dogs are owned by that company. That company is the trustee of a Trust. He is a director of that company, and in that context is a fiduciary. The Trust is registered offshore, and called the Saraband Trust. As I have explained to Mr Middleton, the fact that the Trust is registered offshore does not affect the question of ownership in New Zealand, and I am proceeding on the basis of his information that the legal owners of the dogs are Aoraki Eco Adventure Ltd. However, under the Dog Control Act 1996, there is an extended definition of owner. Owner, under s 2, is every person who (a) owns the dog (in this case the company), or, (b) has the dog in his or her possession (in this case, I am satisfied that that was Mr Middleton). So he is, in that sense, in the special sense of the meaning of owner as defined in s 2 of the Act, at law the owner of these four dogs.

[8] Mr Middleton does not want to implant any of his dogs with a microchip transponder. His immediate reason for not wanting to do that is that he considers that there is reliable evidence that it increases the risk of a dog suffering from cancer. That is the basis of his opposition to the installation of microchip transponders.

[9] This Court is aware, as a matter of public notice, that the whole question of implanting dogs with a functioning microchip transponder has been controversial. What has happened is that Parliament has made this mandatory, and created an offence against s 36A(6) of the Dog Control Act for not doing so. Section 36A(1) says a microchip transponder must be implanted in certain dogs, and that includes dogs registered for the first time on or after 1 July 2006, sub-paragraph (c). I do understand that there are exemptions for working dogs, and that is provided in subs (2)(a), which do not appear on the facts to apply here.

[10] Mr Middelton’s principal argument in this Court, before a Judge of this Court as a common law Judge, which is due to our inherent jurisdiction acquired from the Crown before indeed there was any Parliament in New Zealand, is that, by the principles of the common law protected by the Magna Carta, this prosecution cannot succeed. The argument that he presented to me relies essentially on the common

law, and includes that obligations can only be assumed when they are voluntarily entered into by way of contract. At the root of his argument is that there has been no contract that he has voluntarily entered into, which obligates him to microchip his dogs and to be registered.

[11] There is no doubt that the Dog Control Act is an imposition on the freedom of individuals, which freedom lies at the very heart of the common law. There is no doubt that the common law proceeds on the basis that every individual person – and by person here, I mean human being – has a basic freedom to decide whether or not to enter into agreements and assume obligations. That concept of liberty is at the core of the common law and is closely associated with the bedrock concept of dignity, dignity of the human person.

[12] In countries which have taken Magna Carta principles and written them into superior constitutions, and by that I would include the United States of America, Canada and Australia, these principles we find in the Magna Carta can be used by the superior Courts to read down, in the United States strike down, legislation or statutes which seem to be unwarranted violations of these fundamental principles. That is, however, not the case in the United Kingdom, New Zealand and, for that matter, Israel, the only three countries with a common law tradition which do not have a written and superior constitution.

[13] Mr Middleton is right, however, to quote from speeches in the House of Lords by eminent Judges which effectively say that the United Kingdom Parliament would not enact any statutes which undermine Magna Carta. The same is essentially true in New Zealand. However, in both the United Kingdom and in New Zealand, in common with countries with superior constitutions such as the United States, Canada and Australia, Parliaments frequently pass statutes which regulate the use of private property, and which regulate the basic freedom of action of individuals.

[14] There has been litigation over the last 200 years whereby common law Judges are sometimes hostile to regulatory statutes, where the Judges think that they are an unjustified intrusion on personal liberty and on property rights. That is the classic setting, to me, of Mr Middleton’s sense of injustice in the dogs under his care

being subjected to these provisions of the Dog Control Act, and in particular having their health threatened by the implantation of a functioning microchip transponder.

[15] The New Zealand common law Judges do not have the power to reject statutes by Parliament, that is the first point. Secondly, it is very rare for New Zealand Judges to read restrictively regulatory statutes. Restrictive interpretation of regulatory statutes in New Zealand did occur in the 19th Century and up to the middle of the 20th Century, but largely died out thereafter. The prevailing legal philosophy of New Zealand jurisprudence is to recognise the Parliamentary

sovereignty, the ability of Parliament to make statutes which could be arguably inconsistent with the common law and give effect to those statutes. Normally, however, the New Zealand Parliament does not enact statutes which are inconsistent with the common law, but rather they can usually be justified as being reasonable regulation of common law rights in the public interest.

[16] There is no doubt that the common law rights are not absolute. As Mr Middleton himself pointed out in one of the quotes, the common law recognises that there are limits on individual rights, the common law tends to call them reasonable limits, because of the fact that we live in society. The classic limit on private property is the common law of nuisance. The common law does not allow individual owners of private property to use their property in such a way as to cause a nuisance to their neighbours. That is probably one of the earliest recognitions of the fact that common law rights are always tempered by the fact that we all have to live together as a society and, in that regard, accept, as the price for living in a community, restrictions on what otherwise would be absolute rights.

[17] It is in that context that as a Judge I examine the Dog Control Act. I see no reason at all why the Dog Control Act should be read down. One could argue the politics of whether or not there is a need for a microchip transponder, but that is entering into a realm where High Court Judges simply do not go.

[18] For these reasons, although I recognise that Mr Middleton has raised what I call a classic argument, the sort of argument that I mentioned in the course of the hearing was most eloquently set out by the United States Supreme Court in the

decision of Lochner v New York[1], it is, however, an argument which has essentially failed to persuade Judges for now over 100 years.

[19] For these reasons, I am satisfied that the five convictions must stand. But going back to the reasons that I gave at the outset about the fines, I am satisfied that although the principle of double jeopardy which is confined to convictions does not directly apply, the reason behind the principle that you should not be punished twice for the same wrong does apply. Therefore, in respect of infringement notices 5508,

5509, 5510 and 5511, all issued on 22 October and all directed to the registration of the dogs, I am leaving the convictions in place, but am quashing the fines and the orders for costs and the orders for payment of each of the two witnesses. I am also quashing the legal fees to the council of $400.

[20] I am leaving in place, however, the fine of $300 on infringement notice 5279, which is in respect of not implanting Blurr with a functioning microchip transponder. My reasons are that, as I have explained, this Court cannot interfere with the right of the Timaru District Council, given to it by Parliament, to bring proceedings under s 36A(c) of the Dog Control Act. Those proceedings were brought and were proved, and the fine in that regard of $300 is the sort of fine that one would expect to pay. In that regard, Mr Middleton’s position is no different from other members of the community, so he must suffer the same fine.

[21] In summary, this appeal has been partially successful. For those reasons, Mr Middleton is not going to be liable for any costs in this Court, even though the Timaru City Council has successfully upheld the infringement notice outcome, number 5279. Because of the other problem, the payment of the late fee, back on 7

October, it would not be appropriate that there be any order for costs in this Court.

Solicitors:

Gresson Dorman & Co, PO Box 244, Timaru 7940

Copy to:

R Middleton, 60 Dunkirk Street, Timaru 7910

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[1] Lochner v New York [1905] USSC 100; 198 U.S. 45 (1905).