LOW v NEW PLYMOUTH DISTRICT COUNCIL [2022] NZCA 612

LOW v NEW PLYMOUTH DISTRICT COUNCIL [2022] NZCA 612 [7 December 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA307/2022[2022] NZCA 612BETWEEN ESTELLE GRETA LOWAppellantAND NEW PLYMOUTH DISTRICT COUNCILRespondentHearing: 14 September 2022Court: Brown, Goddard and Katz JJCounsel: J C Hannam for AppellantJ M Marinovich and J E Bourke for RespondentJudgment: 7 December 2022 at 10.00 amJUDGMENT OF THE COURTA The application for leave to appeal is granted.B The appeal is dismissed.___________________________________________________________________REASONS OF THE COURT(Given by Goddard J)Is a dog walker an "owner" of the dog under the Dog Control Act 1996?[1] The Dog Control Act 1996 imposes a number of obligations on owners of dogs.It creates a number of strict liability offences: for example, being the owner of a dogthat attacks a person or a domestic animal.1 The Act gives the term "owner" an1 Dog Control Act 1996, s 57(1).extended definition that includes every person who owns the dog, or who has the dogin their possession, with certain specified exceptions.2[2] Is a dog walker who is temporarily looking after a dog, by agreement with itsowner, treated as an owner of the dog for the purposes of the offence provisions in theDog Control Act? We consider it is clear that the answer is "yes", in light of the textof the legislation and the relevant authorities.[3] It follows that the appeal must be dismissed. Our reasons are set out below.Background[4] Ms Low, the appellant, operates a dog day care service. On 22 June 2021 shewas walking five dogs along Bell Block beach, north of New Plymouth. She was theowner of two of the dogs. The other three dogs belonged to clients. The dogs werenot leashed.[5] The complainant was riding her horse along the beach. Three of the dogs ranat the horse. The New Plymouth District Council (the Council) alleges that three ofthe dogs — Dante (owned by Ms Low) and Diesel and Richie (owned by clients)jumped up at the horse, biting at the horse's legs and body. The complainant's horsesuffered a number of abdominal lacerations.[6] The Council laid seven charges against Ms Low arising out of this incident:(a) three charges that, being the owner of a dog, she failed to keep the dogunder control (one charge in relation to each of the three dogs);3(b) two charges of being the owner of a dog that rushed at an animal in amanner that caused a person to be endangered (one charge relating toeach of the dogs Richie and Diesel);4 and2 Section 2 definition of "owner", paras (a)–(b).3 Sections 52(1) and 53(1).4 Section 57A.(c) two charges of being the owner of a dog that attacked adomestic animal.5[7] Ms Low applied for the charges to be dismissed under s 147 of the CriminalProcedure Act 2011 on the basis that she did not come within the definition ofan "owner" in relation to the dogs. The District Court dismissed the charges.6The High Court allowed an appeal by the Council.7 Ms Low seeks leave to bring afurther appeal to this Court.Relevant provisions[8] Section 2 of the Dog Control Act defines the term "owner" as follows:owner, in relation to any dog, means every person who—(a) owns the dog; or(b) has the dog in his or her possession, whether the dog is at large or inconfinement, otherwise than for a period not exceeding 72 hours forthe purpose of preventing the dog causing injury, damage, or distress,or for the sole purpose of restoring a lost dog to its owner; or(c) the parent or guardian of a person under the age of 16 years who—(i) is the owner of the dog pursuant to paragraph (a) or paragraph(b); and(ii) is a member of the parent or guardian's household living withand dependent on the parent or guardian;—but does not include any person who has seized or taken custody of the dogunder this Act or the Animal Welfare Act 1999 or the National Parks Act 1980or the Te Urewera Act 2014 or the Conservation Act 1987 or any order madeunder this Act or the Animal Welfare Act 1999.[9] Section 5(1) sets out the obligations imposed on dog owners by the Act:(1) The obligations imposed on dog owners by this Act require everyowner of a dog—(a) to ensure that the dog is registered in accordance with this Act,and that all relevant territorial authorities are promptlynotified of any change of address or ownership of the dog:5 Section 57(1)(b), (2) and (3).6 New Plymouth District Council v Low [2022] NZDC 5264 [District Court judgment].7 New Plymouth District Council v Low [2022] NZHC 1154 [High Court judgment].(b) to ensure that the dog is kept under control at all times:(c) to ensure that the dog receives proper care and attention andis supplied with proper and sufficient food, water and shelter:(d) to ensure that the dog receives adequate exercise:(e) to take all reasonable steps to ensure that the dog does notcause a nuisance to any other person, whether by persistentand loud barking or howling or by any other means:(f) to take all reasonable steps to ensure that the dog does notinjure, endanger, intimidate, or otherwise cause distress to anyperson:(g) to take all reasonable steps to ensure that the dog does notinjure, endanger, or cause distress to any stock, poultry,domestic animal, or protected wildlife:(h) to take all reasonable steps to ensure that the dog does notdamage or endanger any property belonging to any otherperson:(i) to comply with the requirements of this Act and of allregulations and bylaws made under this Act.[10] The Act includes a number of offence provisions that apply in relation todog owners, including the following relevant provisions:53 Offence of failing to keep dog under control(1) Every person commits an offence and is liable on conviction to a finenot exceeding $3,000 who, being the owner of a dog, fails to keep thatdog under control.57 Dogs attacking persons or animals(1) A person may, for the purpose of stopping an attack, seize or destroya dog if—(a) the person is attacked by the dog; or(b) the person witnesses the dog attacking any other person, orany stock, poultry, domestic animal, or protected wildlife.(2) The owner of a dog that makes an attack described in subsection (1)commits an offence and is liable on conviction to a fine not exceeding$3,000 in addition to any liability that he or she may incur for anydamage caused by the attack.(3) If, in any proceedings under subsection (2), the court is satisfied thatthe dog has committed an attack described in subsection (1) and thatthe dog has not been destroyed, the court must make an order for thedestruction of the dog unless it is satisfied that the circumstances ofthe offence were exceptional and do not warrant destruction of thedog.(4) If a person seizes a dog under subsection (1), he or she must, as soonas practicable, deliver the dog into the custody of a dog ranger or dogcontrol officer.57A Dogs rushing at persons, animals, or vehicles(1) This section applies to a dog in a public place that—(a) rushes at, or startles, any person or animal in a manner thatcauses—(i) any person to be killed, injured, or endangered; or(ii) any property to be damaged or endangered; or(b) rushes at any vehicle in a manner that causes, or is likely tocause, an accident.(2) If this section applies,—(a) the owner of the dog commits an offence and is liableon conviction to a fine not exceeding $3,000 in addition toany liability that he or she may incur for any damage causedby the dog; and(b) the court may make an order for the destruction of the dog.(3) A dog control officer or dog ranger who has reasonable grounds tobelieve 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 dwellinghouse) to do so.District Court and High Court decisions[11] In the District Court Judge A S Greig dismissed the charges. He held thatMs Low was not the owner of the dogs on this occasion, so the prosecution could notsucceed.8[12] The Judge considered that the definition of "owner" was "incomprehensiblyworded".9 After referring to a number of decisions of this Court and of the High Court,8 District Court judgment, above n 6, at [12].9 At [9].the Judge construed the provision in the manner most favourable to Ms Low.He preferred the approach suggested in Auckland Council v Hill, where this Courtsaid:10[17] The extended definition of the term "owner" means that a person whohas possession of a dog for more than 72 hours has all the duties of an ownerunder the Act, and commits an offence under s 57(2) if the dog attacks a personor an animal during that period. Conversely, during that period the actualowner of the dog is not exposed to criminal liability for attacks by the dog.[13] Adopting that approach, the Judge held that a person is only the owner of a dogif they have the dog in their possession for more than 72 hours. That did not apply toMs Low, so the charges should be dismissed.11[14] The appeal to the High Court was heard by Simon France J.12 He held that forthe purposes of the Dog Control Act the owner is the person who owns the dog andalso anyone who has possession of the dog. However certain types of possession donot constitute ownership for the purposes of the Act. Those types of possession are:(a) when it is for the purpose of controlling the dog or returning it to theowner; and(b) the possession does not exceed 72 hours.13[15] The Judge set out his analysis of the way in which the Dog Control Act dealswith possession of a dog as follows:[13] To state it another way: possession for more than 72 hours alwaysmakes the person an owner. Possession for less than 72 hours normally makesthe person an owner, but may not do so if the possession is for one of theidentified purposes. As an alternative to "otherwise than", if the languagewere instead "except" no real doubt would exist. It is difficult to see that"otherwise than" is intended to introduce a wholly different reading.10 Auckland City Council v Hill [2020] NZCA 52, [2020] 3 NZLR 603.11 District Court judgment, above n 6, at [10]–[13].12 High Court judgment, above n 7.13 At [12].[14] My interpretation of the section is that its intent is to say (and that itdoes using other words say):an owner is also someone who has the dog in his or her possession ,unless that possession is for the purpose of preventing the dog causinginjury and lasts no longer than 72 hours.[16] It followed that Ms Low came within the definition of the term "owner" inrelation to the dog Dante (which she owned) and also the dogs Diesel and Richie(which she was looking after for clients). The appeal was allowed.Submissions on appeal[17] As already mentioned, one of the dogs in relation to which charges were laidwas in fact owned by Ms Low. The appeal to this Court relates only to the two dogsthat were in Ms Low's possession in connection with her dog care business.[18] Mr Hannam, who appeared for Ms Low, submitted that the definition of theterm "owner" is a difficult provision that should be read in the manner referred by theDistrict Court Judge. He relied on the decision of this Court inAuckland Council v Hill.[19] In the alternative, Mr Hannam argued that even if a person who has possessionof a dog for less than 72 hours can be an owner, Ms Low came within the exceptionin the definition because of the role that dog walkers undertake. A dog walker, hesubmitted, will act to prevent the dog causing injury, damage or distress. A dog walkerhas possession in the same way that a dog rescuer would have, with the only differencebeing the consent and knowledge of the owner.[20] Mr Bourke, for the Council, submitted that the decision of the High CourtJudge was consistent with appellate authority in relation to the definition of "owner"under the Dog Control Act. This Court's comments in Auckland Council v Hill wereobiter, as that issue was not the focus of the appeal. Those comments should not beread as departing from the established interpretation of that term in the earlierauthorities.DiscussionLeave to appeal[21] Ms Low requires leave to bring her appeal to this Court.14[22] The issue raised by the appeal is of general and public importance. There areconflicting authorities. It is desirable for this Court to determine the question whethera person in possession of a dog with the consent of its owner, such as a dog walker, istreated as an "owner" of the dog under the Dog Control Act. We therefore grant leaveto bring a second appeal.Authorities[23] In Haskett v Rotorua District Council this Court determined an appeal on aquestion of law concerning whether more than one person can simultaneously qualifyas the statutory "owner" of a dog in terms of s 2 of the Dog Control and HydatidsAct 1982 (the precursor to the current Dog Control Act).15 That definition read asfollows:"Owner", in relation to any dog, means every person who—(a) Owns the dog; or(b) Has the dog in his possession, whether the dog is at large orin confinement, otherwise than for the purpose of preventing the dogcausing damage or for the sole purpose of restoring a lost dog to itsowner; orbut does not include any person who has seized or taken custody of the dogunder this Act or the Animals Protection Act 1960 or any order made underthis Act or that Act, or who has possession of the dog for the purpose ofexamining or treating the dog for hydatids in accordance with this Act:14 Criminal Procedure Act 2011, s 303.15 Haskett v Rotorua District Council CA113/93, 13 July 1993.[24] This Court said:16It seems clear on the face of the definition that the term "owner" includes notonly the person who owns the dog, but any person who has the dog in hispossession, so that where these are different people, more than one person willbe within the definition. There is nothing in the nature of possession topreclude more than one person having possession of a dog, so that within theordinary meaning of the words of the statute there could also be more than oneperson within the definition by virtue of having simultaneous possession.[25] It followed that the effect of the legislation was in some cases to make morethan one person liable for the same injury. The question of whether more thanone person can simultaneously qualify as the statutory "owner" of a dog in terms ofs 2 of the Dog Control and Hydatids Act 1982 was answered in the affirmative.17[26] The definition of the term "owner" in the current Act, which is set out at [8]above, was considered by this Court in Walker v Nelson City Council.18The Court said:19[10] First, the effect of the definition of owner in s 2 is to impose statutoryliability for controlling the behaviour of a dog upon any person who owns thedog and any person who has possession of the dog at any time, except inlimited circumstances. Possession imports the element of control. That servesthe legislative scheme of strict liability for breaches of the obligations underthe Act. Nothing in the wording of the definition, or the Act generally,compels the conclusion that two or more people cannot be the co-owners of adog at the same time.[27] To similar effect is the decision of the High Court in Turner v South TaranakiDistrict Council.20 A dog bit and wounded a passing pedestrian. The dog was ownedby Mr Turner. It was being walked by a boarder in Mr Turner's house. Mr Turner wasconvicted under s 57(2) of the Dog Control Act of being the owner of a dog thatattacked a person. Miller J said:21[15] "Owner" receives an extended definition, meaning relevantly everyperson who owns the dog or has it in his or her possession, whether the dog isat large or in confinement. Several points may be made about this definition.First, it includes anyone who owns the dog in law. Such a person enjoys theusual incidents of ownership, which relevantly include rights to possess,16 At 3–4.17 At 5.18 Walker v Nelson City Council [2017] NZCA 526.19 Footnote omitted.20 Turner v South Taranaki District Council [2013] NZHC 1603.21 Footnotes omitted.manage and dispose, and correlative obligations to care for the animal andprevent harm to others.[16] Second, the definition includes someone who has the dog in his or herpossession. I take "possession" to have its normal meaning in criminal law,namely that the defendant knowingly had actual or potential physical controlof a thing in circumstances showing that he or she assented to being in control.Under the Act possession does not depend on the dog actually being inconfinement or under control at any given time. On the facts, Mr Schriderwas an owner as defined, for he had chosen to assume control of the dog inorder to exercise it in public.[17] Third, "owner" includes every person who fits the definition. SoMr Turner and Mr Schrider were both owners when Floyd made the attack.Both men might have been charged. Mr Schrider was not.[18] Fourth, the Act imposes stringent obligations upon dog ownerswithout distinguishing between those who own dogs in law and those whomerely possess them. For example, every owner of a dog must ensure that itis registered, exercised and cared for. Every owner must ensure that when thedog is on land or premises occupied by the owner it is either under the directcontrol of a person or confined to the land or premises. Every owner mustcarry a leash when with the dog in a public place. Every owner must ensurethat the dog is kept under control at all times, and every owner must take allreasonable steps to ensure that the dog does not injure, endanger, intimidateor otherwise cause distress to any person or stock etc.[19] Fifth, although these obligations attach to every owner some applymore readily to an owner in law than to a person in immediate possession, andvice versa. The Act does not preclude a court from recognising that whenassessing the circumstances of any given offence.[28] A different, narrower approach to the term "owner" was suggested in the recentdecision of this Court in Auckland Council v Hill. The focus of that case was on thecircumstances in which a Court may decline to make an order under s 57(3) of theDog Control Act for the destruction of a dog that has attacked a person because thecourt is satisfied "that the circumstances of the offence were exceptional and do notwarrant destruction of the dog."[29] That case did not depend in any way on the definition of the term "owner":Mr Hill was the registered owner of the dog in question. But in the course of providingan overview of the Dog Control Act, the judgment set out the definition of the term"owner" and made the comment relied on by the District Court Judge, which we repeatfor ease of reference:[17] The extended definition of the term "owner" means that a person whohas possession of a dog for more than 72 hours has all the duties of an ownerunder the Act, and commits an offence under s 57(2) if the dog attacks a personor an animal during that period. Conversely, during that period the actualowner of the dog is not exposed to criminal liability for attacks by the dog.[30] That reading of the definition was also reflected in observations made inparas [47] and [68].Our analysis of the term "owner"[31] The observation in Auckland Council v Hill about who qualifies as an "owner"of a dog was clearly obiter. Nothing in that appeal turned on the extended definitionof the term "owner" in s 2 of the Act. And this obiter comment was in our view clearlyincorrect.[32] We agree with, and adopt, the approach set out by Simon France J in theHigh Court quoted at [15] above. The definition of the term "owner" in s 2 of theDog Control Act is somewhat convoluted, and we sympathise with the frustrationexpressed by the District Court Judge when attempting to construe it. But on a carefulanalysis, the text of the provision admits of only one reading. A person who has a dogin their possession, however briefly, is the owner of the dog for the purposes of theAct unless:(a) that possession is for the purpose of controlling the dog or returning itto the owner; and(b) the possession does not exceed 72 hours.22[33] That reading is consistent with the purpose of the statute. As this Courtexplained in Walker v Nelson City Council, possession of a dog imports the elementof control.23 Imposing liability on the person who has the dog in their possession,even for a period less than 72 hours, serves the legislative scheme of strict liability forbreaches of the obligations imposed by the Dog Control Act. The only exception iswhere a person has the dog in their possession for the (sole) purpose of preventing the22 High Court judgment, above n 7, at [12].23 Walker v Nelson City Council, above n 18, at [10].dog causing injury, damage, or distress, or for the sole purpose of restoring a lost dogto its owner and that possession is for a period not exceeding 72 hours.[34] The 72-hour limit to the exception was inserted at the Select Committee stageof the Dog Control Bill 1995. It appears to have been intended to limit the operationof the exception, requiring a person wishing to avoid liability for a dog's behaviour toreturn the dog to its true owner, or otherwise deal with it, within the 72-hour window.It seems clear that this amendment to the definition was not intended to create a newsafe harbour protecting people from liability under the Act whenever they had a dogin their possession for less than 72 hours, regardless of the purpose for which the dogwas in their possession.Ms Low qualifies as an owner in this case[35] It follows that Ms Low comes within the definition of the term "owner", eventhough she had some of the dogs in her possession for less than 72 hours, unless shecan bring herself within the exception in the extended definition.[36] Mr Hannam submitted, albeit somewhat faintly, that Ms Low and other dogwalkers have possession of dogs "for the purpose of preventing the dog causing injury,damage or distress". We cannot accept that submission. Ms Low had possession ofthe dogs in her care for the purpose of looking after them generally. She had not takenpossession of them in order to prevent them causing injury, damage or distress. It isnot enough that while she had the dogs in her possession in order to care for themgenerally, one of her objectives was to prevent them causing injury, damage or distress.That is not a natural reading of the provision, and that reading would significantlyundermine the purpose of the Act.[37] We therefore agree with the High Court Judge that Ms Low was the owner ofthe dogs in her care for the purposes of the Dog Control Act. The appeal to this Courtmust be dismissed.Result[38] The application for leave to appeal is granted.[39] The appeal is dismissed.Solicitors:Hannam & Co Lawyers Ltd, New Plymouth for AppellantC & M Legal, New Plymouth for Respondent