GORDON: OF THE HOUSE OF ISRAEL V GRAEME MURRAY SEXTON, RUSSELL BIERRE, MARK BUTTIMORE, JOHN TREGIDA HC HAM CIV 2006-419-1765

GORDON: OF THE HOUSE OF ISRAEL V GRAEME MURRAY SEXTON, RUSSELL BIERRE, MARK BUTTIMORE, JOHN TREGIDA HC HAM CIV 2006-419-1765 15 December 2006IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY CIV 2006-419-1765BETWEEN GORDON: OF THE HOUSE OF ISRAEL Applicant AND GRAEME MURRAY SEXTON, RUSSELL BIERRE, MARK BUTTIMORE, JOHN TREGIDA Respondents Hearing: 13 December 2006 Counsel: Mr Israel, in person, Applicant (with Mr Q Koromete as McKenzie Friend) S J Corlett and L Jack for Respondents Judgment: 15 December 2006JUDGMENT OF HEATH JSolicitors: Brookfields, Auckland Applicant in personIntroduction[1] Gordon: of the House of Israel (Mr Israel) seeks interim orders to effect the release of a "canine", known as Sally. Sally was impounded by Dog Control Officers employed by the Hauraki District Council (the Council) because Mr Israel had failed to pay her registration fee. [2] In brief, Mr Israel deposes that "Sally is a living being who is loved and cared for as part of the Israel household". Mr Israel does not accept that Sally is a dog. He submitted that the term "dog" has a number of meanings that are pejorative in nature. A "dog" is something he regards as "undesirable and therefore suitable for or requiring regulation". On the other hand, he sees a canine such as Sally, who is inoffensive and a "well loved member" of his household as something that ought not to be the subject of regulation. [3] For those reasons, Mr Israel declined to pay a registration fee for Sally to the Council. As a result of his failure to do so he was prosecuted under the Dog Control Act 1996. He was convicted after a defended hearing in the District Court at Waihi on 27 October 2006. He has lodged an appeal against conviction and the fine and Court costs imposed. [4] Because Mr Israel failed to comply with a requirement that he pay the registration fee, Sally has been impounded by Council, exercising powers under the Dog Control Act. [5] Section 69(2) of the Dog Control Act provides:69 Impounding and subsequent disposal of dog (2) As soon as practicable after any dog has been impounded, the territorial authority shall, in the case of a dog wearing a current registration label or disc or where the owner of the dog is known through some other means, give written notice to the owner that the dog has been impounded and that unless the dog is claimed and any fee paid within 7 days of the receipt of that notice, it may be sold, destroyed, or otherwise disposed of insuch manner as the territorial authority thinks fit; and after the expiry of that period the territorial authority may so dispose of the dog. .Mr Israel is fearful that Sally may be destroyed.Relief sought[6] Mr Israel seeks, in the alternative: a) An order for habeas corpus, releasing Sally from detention by the Council. b) An Anton Piller order (I gather) to search the Council pound and to remove Sally into his care. c) An interim injunction to restrain the Council from destroying Sally and requiring it to deliver Sally into his care pending substantive issues being determined. [7] The Council oppose the application on the grounds: a) That the writ of habeas corpus is only available to human beings. b) The Dog Control Act must be taken as a complete code governing the control of dogs. c) Section 69 of the Act makes clear the consequence of non-payment of requisite fees. d) The grounds of which Mr Israel to obtain the interim orders are not arguable. [8] Mr Israel drew my attention to a sealed document issued by Nga Uri o Tupoto (Inc), purportedly as a "Record of Canine Whanau". It states:This is to certify that Sally a canine member of the Israel whanau/family has been duly recorded and recognised as a beneficiary of Nga Uri o Tupoto Maori (Inc) as a member of that whanau/family with full standing to inhabit this land commonly known among the people as Te Ika o Maui Whairepo and to which the beneficiaries of Nga Uri o Tupoto Maori (Inc) hold and guard the unextinghished original title thereof. This Record stands over any need for commercial registration as a purported "dog" until such time as it can be shown in a court of law that is a threat or continued nuisance to the people of this land, or is no longer in the loving care of the family, or is a wild male fox or a despicable person whose presence here cannot properly continue without the added benefits of full commercial regulation. This record also includes a firm promise by the Israel whanau/family and Nga Uri o Tupoto Maori (Inc) to provide a remedy for injury incurred by any private people or public body in the restoration of Sally to the whanau/family, along with any cost until such restoration is complete. This does not include any unnecessary costs such as involuntary commercial registration or micro-chipping, and such actions are expressly prohibited.[9] This document evidences the distinction drawn, by Mr Israel, between a "dog" and a "canine". Mr Israel submits that this certificate entitles him to opt out of any application the Dog Control Act may otherwise have, as this voluntary (and alternative) method of regulating canines meets society's needs. Subject to the definitional issue, this argument is one that calls into question the ability of Parliament to enact laws that apply to all citizens.(a) Sovereignty issues[10] During the course of the hearing I indicated to Mr Israel that the Sovereignty issue was not arguable. I give reasons for stating that view. [11] The question whether all citizens of New Zealand are bound by laws passed by its Parliament has been frequently argued in recent years, particularly by those espousing the cause of Maori sovereignty. In R v Mitchell (CA68/04, 23 August 2004), the Court of Appeal considered an application for special leave to appeal put on the basis that the intended appellant was "outside the jurisdiction of the High Court and "Pakeha laws"". [12] Hammond J, delivering the judgment of the Court of Appeal said at paras [13]-[14]:[13] In considering the leave application the Judge carefully explained, by reference to relevant authorities including the decision of this Court inKnowles v Police (CA146/98 12 October 1998), that Mr Mitchell's proposition was untenable. He explained that our Courts are subservient to Parliament and must apply an Act of Parliament in the terms in which it has been enacted. The issues which Mr Mitchell was seeking to raise could not be "resolved by the Courts [they] being a matter for public and political processes and not a judicial one". Notwithstanding the care the Judge took over this aspect of the case, Mr Mitchell does not accept that explanation. [14] This Court has made it plain on a number of occasions now that arguments that are based upon an assertion that the Parliament of New Zealand was not authorised to make law affecting some or all of the persons living in New Zealand cannot succeed before it. Our courts are bound to accept the validity of Acts of Parliament, including the Land Transport Act 1998. Although this issue does involve a point of law, Mr Mitchell's proposition has been squarely rejected on many occasions in the High Court and Court of Appeal. No useful purpose would be served in retraversing the authorities. Mr Mitchell was perfectly familiar with them, and indeed was physically in possession of some of those authorities before us, includingKnowles. He just does not accept them. He is not entitled to put himself outside the law of New Zealand.[13] A similar conclusion must be reached with regard to those within the ambit of the Dog Control Act. The Courts must give effect to the words used by Parliament. Mr Israel is not entitled "to put himself outside the law of New Zealand". The point is unarguable.(b) Habeas corpus[14] The ancient writ of habeas corpus is designed to protect the liberty of the subject. It ensures that human beings who are alleged to be unlawfully detained may be brought before the Court to inquire into the reasons for the detention. [15] The Habeas Corpus Act 2001 reaffirms "the historical and constitutional purpose of the writ of habeas corpus as a vital means of safeguarding individual liberty": s 5(a). The Habeas Corpus Act speaks of the Court's jurisdiction to order release of a "detained person". [16] Mr Israel argued that the phrase "person" extended to a canine. That argument is untenable.[17] While the term "person" has been used in the Habeas Corpus Act, in context must be restricted to human beings. Although the term "person" can include a corporate entity, it is impossible to order that a corporate entity be produced to the Court. Thus, an incorporation could not come within the term "person". [18] Since at least 1682, the common law has regarded a domestic animal as a chattel: see Laws NZ, Animals at para 9 and Putt v Roster (1682) 2 Mod Rep 318; 86 ER 1098. On that legal classification, an animal (whether a "dog"/"canine" or cat or hamster) cannot be regarded as a "person" for the purpose of the Habeas Corpus Act. [19] The habeas corpus claim is hopeless.(c) Anton Piller order[20] An Anton Piller order is designed to authorise search and seizure of premises to preserve evidence. It is not designed to release a dog from impounding. If the impounding were lawful, there is no jurisdiction for this Court to circumvent it by making an Anton Piller order. [21] The application for an Anton Piller order is misconceived and cannot succeed.(d) Interim injunction[22] Interim relief could only be granted if I were to issue an interim mandatory injunction requiring return of Sally pending determination of the substantive issues concerning her status. [23] The principles on which interim injunctions will be granted are well known:Klissers Farmhouse Bakers v Harvest Bakeries Ltd [1985] 2 NZLR 129 (CA) at 142. [24] I hope I do Mr Israel's argument no disservice by summarising it as follows:a) There is no basis on which the State should intervene to regulate the conduct of citizens in relation to their canines: see the certificate set out in para [8] above. b) The term "dog", having pejorative contexts, cannot be interpreted as including a "canine" such as Sally. c) The seriousness of this issue is such that, provided the argument was tenable, interim relief should be granted to avoid the likely consequence of the destruction of Sally. Further, summary determination of the absence of an arguable point would be unjust. In other words, the novelty of the argument is sufficient to justify interim relief. [25] I have no hesitation in concluding that Mr Israel's arguments have no prospect of success and that the interests of justice require the law to take its course. [26] The argument that this Court need not apply the Dog Control Act is inconsistent with the Court of Appeal decision in Mitchell, to which I have referred. I am bound by Mitchell and apply it. The Act must be enforced according to its terms. [27] There is no warrant for interpreting the term "dog" as anything different from "canine". In the Oxford English Dictionary, the term "canine" is defined as "belonging to, or characteristic of, a dog; having the nature or qualities of a dog". The term "dog" is defined by the same dictionary as "a quadruped of the genus Canis". [28] It is unsurprising that the term "dog" is not defined by the Dog Control Act. Parliament must be taken to have assumed that the citizens of this country were perfectly capable of identifying a dog when they saw one. Sally is described as a "female, black border collie" who, when seen by a Dog Control Officer (on Mr Israel's property) on 27 February 2006, was with a litter of pups. That is ampleevidence to demonstrate that Sally is a "dog" for the purposes of the Dog Control Act. [29] The objects of the Dog Control Act are set out in s 4:(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 (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.[30] All of those goals are related to public policy concerns. They promote proper care of animals and aim to prevent endangerment of other animals or human beings. [31] The definitional point has no merit. [32] Once that argument is eliminated, there is no basis on which interim relief could be granted. Sally is a "dog" for the purposes of the Dog Control Act. Mr Israel must comply with that Act in the same way as every other person in New Zealand.Result[33] For the reasons given, the application is dismissed. [34] Early in the hearing I put Mr Israel on notice that an unsuccessful argument might result in an order for costs in favour of the respondents. It was necessary for them to respond at short notice to Mr Israel's application, which was filed on 7 December 2006.[35] I order that Mr Israel pay costs to the Council on a 2B basis, together with reasonable disbursements. Both are to be fixed by the Registrar. I do not certify for second counsel but do direct that reasonable travelling expenses incurred for the hearing shall be recovered as part of the disbursements ordered.Concluding observations[36] The fate of Sally is in Mr Israel's hands. The statute makes clear (s 69) what the Council's obligations are. Mr Israel can secure the release of Sally by paying the amount required to meet the dog registration fee and associated expenses ($202.50 as at 13 December 2006), including the micro-chipping charge. [37] If, out of some misguided sense of principle, Mr Israel is not prepared to pay those costs, he must bear the responsibility for any consequences Sally may suffer. [38] I urge the Council not to take any steps for three working days from delivery of this judgment to give Mr Israel time to reconsider his position, having regard to the comments I have made. _____________________ P R Heath J Delivered at 11.00am on 15 December 2006