Tucholski v Dunedin City Council [2013] NZHC 1381 (7 June 2013)

Last Updated: 11 May 2014

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV-2013-412-88 [2013] NZHC 1381

BETWEEN	MARIO GERD TUCHOLSKI Appellant
AND	DUNEDIN CITY COUNCIL Respondent

Hearing:	6 June 2013
Appearances:	D More for Appellant A M Cunninghame for Respondent
Judgment:	7 June 2013

_{JUDGMENT OF PANCKHURST}

The issue on appeal

[1] This appeal concerns a dog named Kaiser. The appellant Mr Tucholski was the registered owner of Kaiser who I am informed has died since the events relevant to this proceeding.

[2] In the District Court Kaiser was the subject matter of both a criminal prosecution for alleged offences against the Dog Control Act 1996 (the Act), and of a civil appeal which challenged the dog’s seizure and detention in the dog pound. The appeal, however, is confined to issues which arose in the civil context. The prosecution is spent. There is no appeal against a fine (of $500) imposed on one offence, nor against an order that Mr Tucholski pay $2,500 towards the costs incurred by the Dunedin City Council in relation to the prosecution. Rather the

_{determinations which are required concern two orders of the District Court.}

TUCHOLSKI v DUNEDIN CITY COUNCIL [2013] NZHC 1381 [7 June 2013]

[3] The first is whether Judge Crosbie was correct in ordering the appellant to pay a contribution of $3,489.45 towards impoundment costs incurred after Kaiser was seized and detained for a significant period by the City Council.

[4] The second aspect is whether seizure of Kaiser was lawful or not. It being the appellant’s contention that the seizure was unlawful and on that account Mr More advanced an argument that Mr Tucholski should receive costs in relation to the civil proceeding. Indeed indemnity or increased costs are sought.

[5] The underlying issue is one of statutory interpretation. Whether Kaiser’s seizure was lawful hinges on the meaning and application of certain sections in the Act. Their interpretation is by no means straightforward.

The factual background

[6] Kaiser was born in 2006. He was a pure bred, long hair German shepherd, a male dog, but he had been neutered. Originally he was registered to Mrs Tucholski. In late 2007 he was involved in biting a passerby. A City Council dog control officer became involved and Mr and Mrs Tucholski agreed to keep Kaiser muzzled from that point on.

[7] In 2010 Kaiser was involved in two further incidents. In April of that year, he nipped a dog, and in November he was involved in an attack upon another dog. As a result, the City Council determined on 17 November 2010 that Kaiser should be classified as a menacing dog pursuant to s 33A of the Act. Opposition was raised to that classification with the result that there was a hearing before a panel which in the end result upheld the classification, although not until it was heard and finally determined in October 2011.

[8] The most relevant effect for present purposes of the menacing dog classification is that pursuant to s 33E(1)(a) Kaiser could not “be at large in any public place ... without being muzzled in such a manner as to prevent him from biting other dogs or people”. At about the same time as the initial classification of Kaiser as a menacing dog he was reregistered in the name of Mr Tucholski, as opposed to his wife.

[9] On 28 December 2011 Kaiser was involved in a further incident, one which gave rise to the District Court prosecution as well as the civil proceeding to which I have referred. This occurred at Blackhead Beach in the late afternoon. Mr Weggery returned to his vehicle having taken his dog named George for a walk. He placed George in the rear of the car. As he did so, Mr Tucholski arrived in his vehicle and let Kaiser out. At this point Mr Weggery was starting to reverse out of his car park and his car was pursued by Kaiser which endeavoured to attack George, but was prevented from doing so because he was behind the car window. Nonetheless there was some scratch damage caused to a car door.

[10] Mr Weggery parked his vehicle and spoke to the appellant. Mr Tucholski’s reaction was that the two dogs had been ‘facing off’, but the other dog owner disagreed with this interpretation suggesting that fault lay entirely with Kaiser. He was concerned at the vigour of Kaiser’s actions, and indicated an intention to report the matter to the City Council. He did so.

[11] As a result, on or about 24 January 2012 three charges were laid. The gravamen of them was that Kaiser had been in a public place, Blackhead Beach, when he was not muzzled; secondly, that Kaiser had rushed George and his owner, and thereby caused damage to the car; and thirdly, that the rushing of the car was of such a nature as to be likely to cause an accident.

[12] At the same time the City Council made application to the District Court for a warrant authorising entry on to the Tucholskis’ property to inspect for Kaiser’s presence, and to seize and take control of him. This was pursuant to s 14(2) of the Act. I shall in a moment return to the terms of that section, since they are of direct relevance to the matter for determination.

[13] The warrant was granted promptly on or about 24 January and Kaiser was seized that day or perhaps the next day. A notice of seizure was duly served by the City Council upon the owners dated 25 January. Again, I shall refer to its terms shortly. Mr Tucholski immediately filed an appeal to the District Court against the seizure and detention of Kaiser. He did this on 1 February 2012, within the seven day time limit which applied.

[14] In the event, that appeal was not heard promptly. However, Judge Crosbie, convened a preliminary hearing on 7 June 2012, at which he heard submissions from counsel on both sides. He made directions that the criminal and civil proceedings be heard together on 25 June, with the criminal offences to be heard first, followed by the civil aspects. In the meantime, the Council undertook to facilitate visits to Kaiser and undertook that the dog would not be disposed of by sale, or destroyed pending the hearing.

The District Court Hearing

[15] On 25 June, the Judge heard evidence in relation to the three charges. A dispute of fact emerged concerning whether Kaiser was muzzled at the time of the Blackhead Beach incident. Judge Crosbie was not prepared to accept the complainant’s evidence and reject that of Mr Tucholski, and accordingly he was not persuaded to the required standard that Kaiser was not muzzled at the time of the incident. For this reason, that charge was dismissed. With reference to the charge that Kaiser had rushed the car containing George in a manner likely to cause an accident, the Judge acceded to a no case submission and dismissed that charge at the end of the informant’s case. This, as I understand it, reflected an acceptance that there was no sufficient evidence as to the likelihood of an accident.

[16] The remaining charge of rushing in a manner likely to cause damage to Mr Weggery’s car was amended and Mr Tucholski immediately entered a plea of guilty to the amended version. That amendment involved the deletion of reference to Mr Weggery as having been rushed by Kaiser so the charge was narrowed to rushing George the dog. This charge was laid pursuant to s 33EC of the Act. It will be necessary that I return to the terms of that section as well in a moment.

[17] It transpired that there was no need for Judge Crosbie to determine the civil appeal concerning Kaiser’s seizure and detention. Following resolution of the three criminal charges, the City Council indicated its agreement to Kaiser’s release back to his owner. After receiving and considering submissions on penalty and costs in relation to both proceedings and relating to payment of pound expenses, the Judge issued a reserved decision on 18 June 2012. That decision firstly dealt with the

criminal sanctions, in that the fine and order to pay costs to the informant were made.

[18] In relation to the civil appeal, the Judge made the key finding that the seizure and detention of Kaiser was lawful and also, of course, ordered payment of the pound expenses to which I have already referred, but declined to award costs in relation to the appeal. Instead he ordered that costs lie where they fell, that is the parties meet their own costs in relation to that aspect.

Was the seizure of Kaiser lawful?

[19] I turn therefore to the key finding. Was the seizure of Kaiser lawful? This finding prompted the making of the order to pay 75 percent of the pound expenses. Also, I think, it forestalled the making of a costs order against the City Council and led to the order that costs lie where they fall.

The statutory scheme

[20] It is convenient to begin with reference to the notice of seizure issued by the City Council on 25 January 2012. It spells out the basis for, and implications of, a seizure. Since Kaiser was already classified as a menacing dog and therefore required to be muzzled, the notice in reliance on the incident at Blackhead Beach referred to an alleged breach of s 33EC of the Act. This I note, is an offence punishable on conviction by a fine of up to $3,000. The notice recited subsection (2) of the section, being the power of a dog control officer to seize a dog. It also quoted s 71A(2)(a) of the Act which prescribes the obligations upon a territorial authority after a seizure, namely to notify the owner before steps can be taken to dispose of the dog by sale or destruction.

[21] Finally the notice stated:

Unless an appeal is filed with the District Court within seven days after receipt of this notice, your dog may be disposed of in a manner the District City Council thinks fit.

You are advised to seek legal advice before filing an appeal.

[22] In this instance, Kaiser was seized from his home during working hours while Mr and Mrs Tulchoski were absent. Section 14(2) was invoked to justify entry onto their property. The section provides:

Where any dog control officer has good cause to suspect that an offence against this Act or against any bylaw made under this Act has, at any time in the preceding 6 months, been committed in respect of any dog for the time being appearing to be kept on any land or premises, the dog control officer, and all persons he or she calls to his or her assistance, may enter at any reasonable time onto the land or premises-

(a) To inspect any dog on the land or premises: and

(b) If authorised under any other provision of this Act, to seize or take custody of any dog on the land or premises.

[23] The highlighted words are pivotal to Mr More’s argument. In the course of submissions yesterday, provisions of the Act authorising the seizure of a dog were referred to for convenience as a tandem provisions. Here, the tandem provision was to be found in s 33EC of the Act. This is the offence provision whereby owners of menacing dogs may be charged for failures to comply with their duties to muzzle their dog under s 33E, or for a failure to neuter their dog under s 33EB. The section provides:

33EC Offence to fail to comply with section 33E(1) or 33EB

(1) Every person who fails to comply with section 33E(1) or 33EB commits an offence and is liable on summary conviction to a fine not exceeding

$3,000.

(2) If a person fails to comply with section 33E(1) or 33EB, a dog control officer or dog ranger may-

(a) seize and remove the dog concerned from the person’s possession;

and

(b) retain custody of the dog until-

(i) the dog control officer or dog ranger is satisfied that the person has demonstrated a willingness to comply with section 33E(1) or 33EB (as the case may be); or

(ii) the dog is disposed of under section 71A.

[24] Following Kaiser’s seizure, disposal was governed by s 71A which section relevantly provides:

71 Retention of dog threatening public safety

(2) Except as otherwise provided in this section, every dog to which subsection (1) of this section applies shall be kept in custody and given proper care and exercise until the prosecution referred to in subsection (1)(b) of this section is determined by the Court.

(3) In every case to which subsection (1) of this section applies, the territorial authority shall give written notice in the prescribed form to the person claiming the dog.

Subsections 4 to 7 deal with the application of fees received upon a sale of a dog and are therefore not relevant to this case.

The rival contentions

[25] Mr More’s argument focused on s 33EC(2), in particular, the opening words

“if a person fails to comply” with either of the duty sections, seizure and removal of a dog may occur followed by ongoing retention of custody until a resolution is reached in terms of s 71A.

The phrase fails to comply, Mr More submitted, connoted proof of a failure to the criminal standard. Here of course, the City Council failed to meet that standard in the District Court. To the contrary, the information alleging that Mr Tulcholski failed to muzzle Kaiser at Blackhead Beach as dismissed on its merits. Absent proof of a failure, the exercise of the power was described by Mr More was unlawful.

[26] I note that the other two charges laid pursuant to s 57A of the Act could not avail the City Council in relation to the point for my decision. This is because s 57A is self contained. It defines the offence of rushing at persons, animals or vehicles; creates an offence through an offence provision and provides for seizure of a dog:

(3) A dog control officer or dog ranger who has reasonable grounds to believe that an offence has been committed under subsection (2)(a) may, at any time before a decision of the court under that subsection, seize or take custody of the dog and may enter any land or premises (except a dwelling house) to do so.

This explains why the notice of seizure only referred to s 33EC and thereby related the s 14 seizure to the muzzling offence.

[27] Hence, in summary Mr More’s argument was that Judge Crosbie erred in concluding that the seizure in this instance was lawful; relying upon his argument that s 33EC speaks of a failure to comply with the muzzling or neutering requirements, as the trigger for seizure. Counsel argued that the Judge’s criminal finding in the District Court was necessarily fatal not only to the prosecution, but also to the contention that the seizure was lawful.

[28] Ms Cunninghame, however, rejected this interpretation. In substance, she argued that the key sections, ss 14 and 33EC, read in the context of the Act could not bear the interpretation advanced for the appellant, not the least because that interpretation would render the seizure provision unworkable. Some other features of her argument will become apparent, I trust, from the analysis which follows.

Analysis

[29] The arguments I heard yesterday were quite wide ranging. I shall not touch on every aspect referred to by counsel. In my view, it is not necessary to do so. I have reached a clear view that s 14 and s 33EC must be considered and interpreted together. That is how they operate, and once this is done I consider it is clear that the thesis advanced by Mr More is unsustainable. A number of reasons to which I now turn prompt that conclusion.

[30] I begin with s 14(2). Why is the power of seizure made dependant on an authority contained in some other provision of the Act? The answer in my view is obvious when one has regard to the spread of situations in which seizure, or other forms of intervention, may arise in relation to an errant dog.

[31] Section 57A is one example. Dogs which rush people, animals or vehicles and cause harm may be seized where there is reasonable grounds to believe the commission of an offence. The existence of this power is typical of those scattered throughout New Zealand legislation, exercisable if there is reasonable cause for belief that an offence has been committed. Section 56 governs the removal of barking dogs and includes a power to remove based on reasonable grounds for belief as well. Section 57 relates to ‘dogs attacking persons or animals’ and subsection (1) provides that where a dog is in the act of attacking and ‘for the purpose of stopping

an attack’ anyone may seize, or even destroy, a dog. Other sections in the Act contain similar powers to seize or in some instances to summarily destroy a dog. The power conferred is reflective of the extent and immediacy of the peril involved in the particular situation covered by that section.

[32] Returning then to the question posed a moment ago, s 14(2) requires the existence of an authority to seize elsewhere in the Act because it is a general provision governing the power of entry on to land or premises. It will often be a power exercised where a dog control officer has received a complaint and needs to enter land or premises to investigate the matter. It covers less immediate situations where the dog officer may often be reliant on information received from a complainant. This I think may explain the lesser standard. Good cause to suspect the commission of an offence is the standard since a dog control officer is reliant upon the word of another and it will be more difficult to have good cause to believe where he or she was not privy to the actual triggering event.

[33] I turn now to s 33EC(2) – the pivotal provision for present purposes. Why does it refer to a person who fails to comply with the obligations resting on owners of menacing dogs, rather than a formula such as a reasonable grounds test? Does this mean, as Mr More contended, a failure must be actually established, not just reasonably suspected or believed to have occurred. I think not. In my view the only sensible interpretation is that sections 14 and 33EC must be read together, so that good cause to suspect applies in relation to the power to seize and detain a dog considered to have been involved in a breach of the prior sections.

[34] In my view two important considerations lend support to this interpretation. The first is that the resulting seizure is subject to s 33EC(2)(b), whereby maintaining custody of the dog may continue until either an officer is satisfied the owner has demonstrated a willingness to muzzle or neuter the dog as the case may be, or alternatively, until ‘the dog is disposed of under s 71A’. Hence, either the dog is returned, or the stringent notice requirements of s 71A apply to the protection of the dog’s owner. These requirements enable the owner to contest the territorial authority’s seizure of the dog in the District Court. This, to my mind, indicates why the lesser onus applies to the exercise of the power.

[35] The second reason is one stressed by Ms Cunningham, namely that public safety is at the forefront of this Act. Section 4 specifies the objects of the Act:

Objects

The objects of this Act are-

(a) to make better provision for the care and control of dogs –

(i) by requiring the registration of dogs; and

(ii) by making special provision in relation to dangerous dogs and menacing dogs; and

(iii) by imposing on the owners of dogs, obligations designed to ensure that dogs do not cause a nuisance to any person and do not injure, endanger, or cause distress to any person; and

(iv) by imposing on owners of dogs obligations designed to ensure that dogs do not injure, endanger, or cause distress to any stock, poultry, domestic animal, or protected wildlife; and

(b) to make provision in relation to damage caused by dogs.

[36] The legislative intent is clear. It would be frustrating if s 33EC was interpreted in the manner for which Mr More contended. The power conferred under that section to seize a dog would be rendered essentially unworkable if a dog control officer had to have proof beyond reasonable doubt before he or she could invoke the power. Further, I think the suggested interpretation would mandate an approach to the exercise of a pre-conviction power which would be at odds with the traditional approach used under many acts of Parliament in this country.

[37] Accordingly, and for these reasons I find, in common with Judge Crosbie, that the seizure of Kaiser was lawful regardless that the charge pursuant to s 33EC ultimately failed. There has been no argument to the effect that good cause to suspect did not exist as at 25 January 2012 when Kaiser was seized. It follows, I think, that the seizure was correctly characterised in the District Court as lawful and I uphold that finding.

The relief sought

[38] This single key finding as I have described it, is fatal to the relief which was sought on Mr Tulcholski’s behalf. To recap, he sought cancellation of the order for payment of impoundment fees and an order for payment of indemnity, or at least increased, costs. Both as I understand it were founded upon the proposition that the seizure was unlawful and should be classified as such.

Costs

[39] As is the usual course this appeal has been classified as 2B for the purpose of the award of costs under the High Court Rules. While the appeal hearing extended beyond the normal adjournment time and it was a somewhat long half day, I nonetheless think it appropriate to treat it as a half day hearing.

[40] I anticipate that counsel will be able to resolve any issue concerning costs arising in relation to this appeal. However, in case I am wrong in that regard, leave is reserved.

Solicitors:

D More, Dunedin

A M Cunninghame, Dunedin