SMITH v NEW ZEALAND KENNEL CLUB INC [2019] NZCA 454

SMITH v NEW ZEALAND KENNEL CLUB INC [2019] NZCA 454 [25 September 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA100/2018[2019] NZCA 454BETWEEN LOUISE SMITHAppellantAND NEW ZEALAND KENNEL CLUBINCORPORATEDRespondentHearing: 20 November 2018Court: Cooper, Winkelmann and Williams JJCounsel: G E Minchin for AppellantA N Isac and T Mijatov for RespondentJudgment: 25 September 2019 at 10 amJUDGMENT OF THE COURTA The appeal is dismissed.B There is no order as to costs.____________________________________________________________________REASONS OF THE COURT[1] This appeal concerns the registration of three pedigree Japanese Spitz dogs.The respondent, the New Zealand Kennel Club Inc (the NZKC), has refused to placethe three dogs on its full register, placing them instead on its restricted register.That refusal affects the dogs' value. It means that they cannot be entered in certainkinds of show, and if they breed, that their offspring will not be able to be registeredas pedigree. Ms Smith sought to judicially review that refusal by the NZKC and alsoits decision to register the dogs with names she considers offensive. She wasunsuccessful before the High Court and now appeals the decision of Ellis J decliningjudicial review.1[2] The issues in the proceeding can be traced to an agreement(the Rosa Agreement) reached between two parties who are now not currently beforethe court — Ms Howard and Ms Faulkner. Ms Howard operated a pedigree kennelknown as Mondial Kennels. Ms Rosa agreed with Mondial Kennels that she wouldtake ownership of the dog Fudge (also known as Mondial Cookies and Cream) butwould lease her back to Mondial Kennels for breeding purposes. Ms Faulkner andMs Rosa signed the Rosa Agreement, which provided that the cost of stud was to befor Mondial Kennels, and that in the result of a pregnancy, the entire litter was to beregistered in Mondial Kennels' name and at its cost. The litter would then be sold withthe proceeds going to Ms Rosa, subject to Mondial Kennels' right to pick one ofthe puppies prior to sale.[3] The registration referred to was with the NZKC which maintains a nationalregister of purebred pedigree dogs. Registration and naming of dogs is approved bythe NZKC in accordance with its Rules and its Registration Regulations.[4] In June of 2006, Ms Faulkner purchased Fudge from Ms Rosa and agreed totake over the Rosa Agreement. That Agreement was activated in February 2011 whenMs Howard approached Ms Faulkner to make arrangements necessary for Fudge to bebred. Ms Howard wished Fudge to be sent to her in Auckland, and ultimately that wasagreed to. However, a dispute then arose because Ms Howard refused to deliver Fudgeback to Ms Faulkner until Ms Faulkner provided to her a signed and completedstandard lease agreement for Fudge. Ms Faulkner said she was prepared to sign a leaseagreement but required the return of Fudge before handing it over.[5] Ms Howard still did not return Fudge and so Ms Faulkner brought a claim inthe Disputes Tribunal seeking her return.1 Smith v New Zealand Kennel Club Inc [2018] NZHC 27.[6] The first hearing before the Tribunal occurred in April 2011. Ms Howard didnot attend.[7] The Tribunal found that the Rosa Agreement contemplated that Fudge wouldbe in Ms Howard's care for a short time only to allow the mating to occur, and thatthereafter Fudge and then the puppies would remain in Ms Faulkner's care, subjectonly to the right of Ms Howard to pick a puppy.2 Although Ms Faulkner agreed to avariation of the Rosa Agreement to allow Fudge to travel to Ms Howard in Aucklandto allow mating, that variation only required that Fudge be there while she was inseason — about a week. Ms Howard was therefore in breach of the Rosa Agreementin failing to return Fudge.3 The Tribunal ordered the return of Fudge to Ms Faulkner.[8] We note that in support of her claim before the Tribunal Ms Faulkner had fileda document which has been consistently referred to in those proceedings (and in theseproceedings) as a lease agreement (the Lease Agreement). The document was in factan "Application for Registration of the Loan or Use of a Bitch for Breeding Purposes".Ms Faulkner's position before the Tribunal was that she was prepared to providethe Lease Agreement but only on the return of Fudge. The copy she filed was signedand dated 26 February 2011, was expressed to run for a period of six months only andshowed Ms Howard as the breeder.[9] Ms Howard then applied for and was granted a rehearing before the DisputesTribunal. She counterclaimed for veterinarian and other costs. That rehearing tookplace in July.4 Some time prior to the hearing Fudge had given birth, with foursurviving puppies. On this occasion the Tribunal accepted that Ms Faulkner'ssignature of the Lease Agreement was necessary to ensure that the litter produced byFudge could be registered in Ms Howard's kennel name, as contemplated by the termsof the Rosa Agreement.5 However, it repeated its finding that Ms Howard breachedthe Rosa Agreement by refusing to return Fudge.6 The Tribunal therefore ordered on6 July that Fudge and her puppies were to be returned to Ms Faulkner on condition2 Faulkner v Howard CIV-2011-059-49, 15 April 2011 at [10].3 At [11].4 Faulkner v Howard CIV-2011-059-49, 6 July 2011.5 At [1] and [4].6 At [4]–[6].that a "lease of bitch form" was to be signed by Ms Faulkner.7 The Tribunal refereeordered that Mondial Kennels was to register the puppies with the NZKC, thatMs Howard could select her puppy prior to the sale of the litter, and that Ms Faulknerwould retain the proceeds of sale in respect of the remaining three puppies.[10] Ms Howard then emailed the NZKC referring to the Tribunal's 6 July ordersand providing a copy of the Lease Agreement signed by Ms Faulkner dated26 February 2011. Ms Howard asked for confirmation that the NZKC would acceptthis application for registration.[11] On 12 July 2011, the NZKC advised that they would not accept the applicationfor registration proffered by Ms Howard because it had not been lodged within threemonths of signing of the Lease Agreement in accordance with reg 13.4. It said it wasunable to grant an extension of time without Executive Council approval, notingfurther that it was not common for its Executive Council to make decisions that rancontrary to the regulations.[12] Following further exchanges, on 15 July 2011, the NZKC emailed bothMs Faulkner and Ms Howard saying:If both parties can agree, we will accept a lease if the signature date is changedto accommodate our regulations. This will ensure that the lease has the sametimeframe as originally intended but can also be processed without ourregulations. Our regulations don't appear to worry about the whelping date.So if the same agreement is used but a signature date that falls within ourregulation requirements is used then I believe this will satisfy ourrequirements.[13] On 21 July, the Police facilitated the handover of the dogs (Fudge and the fourpuppies — the puppy that Ms Howard was to retain was returned to her later).The Lease Agreement was then signed by Ms Howard. Ms Howard entered the date21 July 2011 under Ms Faulkner's signature, although leaving the date of 26 February2011 next to the space marked "Date Signed". Shortly thereafter she scanned itthrough to the NZKC.7 At [7].[14] However, the NZKC was not happy to proceed on that basis withoutMs Faulkner's express agreement. In an email dated 1 August 2011, Ms Faulkner toldthe NZKC that her signature on the Lease Agreement was dated 26 February 2011,and she denied that she had agreed to the addition of the later 21 July 2011 date.Accordingly, the NZKC declined to accept the lease, telling the parties thatoutstanding issues between them needed to be resolved.[15] In terms of the chronology of events it is at about this point that the appellant,Ms Smith enters. On 30 July 2011 Ms Faulkner sold Fudge's three puppies to whichshe had contractual right, to Ms Smith.[16] In early August Ms Howard sought a further rehearing before the Tribunalbecause of her inability to obtain registration of the puppies. In her evidence filed insupport of the application for rehearing, Ms Howard said that the NZKC would notregister the puppies without either Ms Faulkner's agreement, or the Tribunal'sdirection to register the litter in the name of Mondial Kennels. A telephone conferencefor 6 September was allocated for the application for rehearing. On 7 September,following that hearing, the Tribunal issued a minute clarifying its earlier orders.It ordered:The order made on 6 July 2011 is hereby clarified by stating that, irrespectiveof any problem with the dates on the Application for Registration of The LoanOr Use Of A Bitch For Breeding Purposes which has now been signed by bothparties, the puppies in question are to be registered in the name ofMondial Kennels.[17] The NZKC then accepted the Lease Agreement as valid, which meant thatMs Howard was deemed to be the breeder of the puppies giving her the entitlement toregister and name them. The NZKC proceeded to register all four puppies onMs Howard's application. She registered the puppy she was keeping on the fullregister, and the other three on the restricted register. The names she gave Ms Smith'sthree puppies were "Mondial Where The Hell R Ya", "Mondial Do A Runna" and"Mondial Catch Me If You Can". She gave the puppy she retained the name of"Mondial Gone In Sixty Seconds".[18] It is material to observe at this point that at the time the Rosa Agreement wasentered into, the NZKC had only one type of registration — full registration. Later, inabout 2008, its Rules were amended to split the register in several parts. Part 1 isthe full register. Only dogs with both parents on this register are eligible for entry onit. And only dogs on this part of the register can be entered at a Championship or OpenShow. Part 2 of the register is not relevant for our purposes. Part 3 isthe restricted register. Although it is also only for pure bred dogs, those onthe restricted register do not have the right to be shown at Championship orOpen Shows, and if they have offspring, their offspring will not be entitled toregistration as purebred. It is relevant also that while there was no restricted registerprior to 2008, the NZKC could nevertheless place "endorsements" on dogs to achieveessentially the same outcome as registration on the restricted register.[19] Ms Faulkner and Ms Smith protested this registration. They made the case tothe NZKC that the puppies should have received full registration, since that was theonly registration available at the time of the Rosa Agreement. Ms Faulkner also arguedthat the names given were offensive, a view based on her belief that Ms Howard hadconcealed the size of Fudge's litter, enabling her to keep additional puppies.[20] In early December 2012 the Executive Council of the NZKC agreed to changethe puppies' names and to transfer them to the full register, with the name ofMs Faulkner or nominee as owner. But the dispute was not over. When notified ofthis decision Ms Howard applied to the NZKC for a review of that decision, and on31 July 2013, the Club determined that while Ms Smith was to remain the registeredowner of the dogs they would be returned to the restricted register under the namesgiven to them by Ms Howard. It said that the NZKC Registration Regulations onlyallowed a dog to be transferred to the full register with the breeder's written consent.In the absence of a Tribunal Order or Ms Howard's consent it could not transfer thethree puppies. As to the names it said that while the names were distasteful in thecircumstances of the dispute, they were not offensive or objectionable to an ordinaryperson.[21] In September of 2013 Ms Smith sought to review the NZKC's July decision.The NZKC stayed its decision while it considered her challenge. Eventually itdetermined that it should uphold its July decision, advising Ms Smith of that inOctober 2013.[22] Ms Smith brought judicial review proceedings against the NZKC. By the timeof the hearing Ms Smith was pursuing four causes of action. The first, that the NZKChad relied upon Ms Howard being the "breeder" of the puppies pursuant to the NZKCRegulations, and therefore able to determine registration status of them.But the NZKC r 3(b) states that the breeder is the "owner of the dam at the time ofwhelping".8 At the time of whelping Ms Faulkner was the owner of Fudge.Accordingly, it was argued that the registration was ultra vires.[23] The second cause of action claimed a number of the NZKC's actions were inbreach of the Registration Regulations in a number of respects, those which arematerial to this appeal are as follows:(a) The NZKC's recognition of the Lease Agreement did not conform withthe Registration Regulations because it was not registered within threemonths of signing, it was not filed in triplicate as those Regulationsrequired and did not comply with the Regulations' stipulation as toform, which required original forms and original signatures.(b) The NZKC's decision to change the name of Ms Smith's puppies backto the names Ms Howard had given them breached the NZKC'sprohibition on offensive names.[24] The third cause of action alleged breach of natural justice and that the NZKChad acted unfairly in its treatment of Ms Smith in respect of one of the three puppies,Jenny. It alleged that pursuant to the Registration Regulations, the NZKC haddiscretion it could exercise to achieve a fair outcome, which it had failed to do that inrespect of Jenny. It had allowed Ms Smith to enter Jenny in the upcomingNational Dog Show, notwithstanding that she had been removed from the full registerat that point in time. In September 2013, Jenny gave birth to a litter of her own.8 Although the statement of claim incorrectly referred to r 3(o).The NZKC subsequently declined to register the puppies on the full register, and it isthat which was alleged to have been unfair.[25] In the final cause of action Ms Smith alleged that the NZKC had failed to takeinto account mandatory considerations, namely the Rosa Agreement and Ms Howard'sconduct toward Ms Faulkner in respect of Fudge and the puppies.High Court judgment[26] The Judge rejected the argument that the NZKC had acted in breach of naturaljustice, noting the extensive materials with which it had been "bombarded".9 She saidthat the fact Ms Smith was heard was evidenced by the NZKC's executive's initialchange of heart which acceded to her requests to transfer the puppies to the full registerand change their names, and by the later reasoned decisions responding to her requestsfor review. The Judge observed that even had there been a breach of natural justice,that breach had been cured by the hearing before her, in which all issues had beenthoroughly traversed.[27] As to the remaining causes of action, she said that the Registration Regulationsmake it clear that only a breeder may register a dog.10 The Lease Agreement describedMs Howard as the breeder. While the NZKC Rules do define "breeder" as meaningthe "owner of the dam at the time of whelping", she was satisfied they should beinterpreted consistently with the Registration Regulations, so that both definitionsmatch.11[28] The Judge rejected the argument that the Lease Agreement could not be reliedupon to give Ms Howard the status of breeder because it was outside the 3-monthperiod required for registration. She said that Ms Howard was entitled to sign anddate the Lease Agreement in July.12 The Judge noted many other difficulties withMs Smith's argument:139 Smith v New Zealand Kennel Club Inc, above n 1, at [74]–[75].10 At [77].11 Ms Smith did not purse an argument on appeal based on any inconsistency between the Rules andRegistration Regulations in this regard.12 At [84].13 At [85]–[86].(a) The Rosa Agreement gave Ms Howard a right to register the puppies inthe name of Mondial Kennels and that could only be achieved withMs Howard if Ms Howard was agreed to have the status of breeder bythe parties.(b) Ms Faulkner had agreed to sign the Lease Agreement and had neverresiled from that position, even if she sought to use a refusal to agree toaltering its date as a bargaining chip.(c) From 6 July 2011 Ms Faulkner was required by the orders ofthe Tribunal to facilitate registration by Ms Howard.(d) And finally, the NZKC retained a discretion to accept late registration.As to the last point, while it was not clear whether the NZKC had reliedupon that discretion, the Judge observed that the availability of thatdiscretion would militate against the exercise of the Court's discretionto allow judicial review in any case.[29] The Judge considered that the Rosa Agreement was consistent with thedecision of the NZKC.14 And while there might be an argument thatthe Rosa Agreement obliged Ms Howard to register the puppies in the full register,that was a contractual matter between Ms Faulkner and Ms Howard which could notbe determined in the context of a judicial review to which neither Ms Faulkner norMs Howard were party.15 And in any event, reg 13.5 expressly provides that privateagreements will not be "recognised" by the NZKC.16[30] The Judge dismissed the technical arguments as to a failure to filethe Lease Agreement in triplicate as not supported by the evidence andinconsequential.[31] Finally, the Judge rejected the argument regarding the names of the dogs.She agreed with the NZKC's assessment that while the names may be provocative in14 At [87].15 At [88].16 At [89].the context of the dispute they were not indecent or offensive.17 And the hurt feelingsof another member could not be a mandatory consideration.Argument on appeal[32] Counsel for Ms Smith, Mr Minchin, filed lengthy written submissions raisingmany points, some which do not seem to have been a feature of the argument beforethe High Court, and some which have no connection to the pleaded causes of action.After careful consideration of the notice of appeal, Mr Minchin's written submissions,and the clarification of those submissions he offered in oral argument, we haveidentified what we understand to be the grounds of appeal.The NZKC should have given effect to the Tribunal's decision[33] Mr Minchin argued first that the Judge erred in failing to find that the NZKCwas obliged to give full effect to the Tribunal's decision. He contended that thepurpose for which the Tribunal directed registration of the Lease Agreement was togive effect to the Rosa Agreement. The next step in this argument is that the true effectof the Rosa Agreement was to oblige Ms Howard to register all of the puppies in thefull register. Given that, the NZKC could not allow registration which breached theterms of the Rosa Agreement, especially when, by reason of extensivecorrespondence, the NZKC had full knowledge of the Rosa Agreement and the contentof the dispute.[34] Mr Minchin relied on reg 16.5, which provides:Any dispute arising out of any term or condition of a recognised contract notspecified in clause 16.3 hereof shall be settled by the parties to the contract byprivate agreement or by an appropriate civil authority. [The NZKC] will notadjudicate any such dispute.[35] There are several difficulties with this ground of appeal. First, the Tribunal didnot determine whether the Rosa Agreement obliged Ms Howard to register the puppiesin the full register. As the proceeding before the Tribunal developed, it was asked by17 At [93].both Ms Faulkner and Ms Howard to hold the parties to the terms of the RosaAgreement. It did that by ordering a return of Fudge and the puppies to Ms Faulknerand requiring that a Lease Agreement be signed. It is true that there is an argument, itmay well be a very good argument, that the Rosa Agreement obliged Ms Howard toregister the puppies without endorsement, and that after the splitting of the register,that obligation translated into an obligation to register the puppies on the full register.But that argument was not addressed by the Tribunal, and it was an issue betweenMs Faulkner and Ms Howard upon which the NZKC could not be expected to engage.[36] If the NZKC was indeed obliged to give effect to the Tribunal's order, or to theplain terms of the Rosa Agreement or even its purpose, it was therefore doing so byallowing Ms Howard to register the puppies, since that was her right and obligationunder the Rosa Agreement.[37] A further difficulty with this argument is that reg 16.5, which Mr Minchinrelied upon, deals with recognised contracts, which, in terms of that regulation arestandard contracts for the sale and purchase of dogs. It therefore has no application tothe facts of this case. More relevant is the regulation the Judge relied upon (reg 13.5)in rejecting what seems to have been an earlier formulation of this argument.That regulation provides:Parties to an agreement for the Loan or Use of Bitch for Breeding PurposesAgreement may enter into such contractual arrangements between themselvesas they may deem appropriate. Any such contract should be in writing and isa personal agreement between the parties and will not be recognised by[the NZKC].[38] Mr Minchin claimed that reg 13.5 means no more than that privatearrangements must be privately adjudicated or arbitrated, and it follows, he says thatthere is nothing in the rules to stop the NZKC giving them effect. We do not agree.Certainly, the regulations contemplate that parties will sort out disputes that arise fromprivate arrangements "between themselves" but the intent behind the regulation is toensure that the NZKC can proceed on the basis of standard agreements and need notbecome implicated or embroiled in one off arrangements, and disputes that may arisein connection with them. The facts of this case make clear the wisdom of the inclusionof such a regulation.[39] There is nothing in this ground of appeal.The NZKC should have given effect to the Rosa Agreement and should have taken intoaccount the content of the dispute between the parties[40] We deal with similar dispatch with another ground of appeal that the Judgeerred in finding that the NZKC was not required by its rules and regulations to upholdthe integrity of agreements between its members. Mr Minchin argued that the NZKCshould have held Ms Howard to the terms of the Rosa Agreement, and accordinglyshould have registered the puppies in the full register, and later, should have declinedher request to transfer them to the restricted register.[41] Again, this argument faces the difficulty of the provisions of reg 13.5.[42] It also faces the difficulty that the Rosa Agreement does not explicitly deal withthe form of registration. Whether or not it obliged Ms Howard to register the puppiesin the full register was an issue between the parties to that Agreement, an issue whichhas not to date been adjudicated upon. The NZKC could not be obliged to take sidesin that issue, particularly in the face of the signed Application post-datingthe Rosa Agreement, which gave Ms Howard the status of breeder for the purposes ofthe regulations.[43] Mr Minchin also seemed to raise an argument that Ms Faulkner's signature ofthe Application was extracted under duress. This is not an issue which is raised inthe pleadings, and it is not clear it was argued in the High Court. We doubt thatthe affidavits filed lay a sufficient evidential basis for such an argument, but even ifthey did, that would be an issue between Ms Howard and Ms Faulkner. It was not anissue that the NZKC could be expected to address within the context of a registrationprocess. And under reg 13.5 it was an issue the NZKC was entitled to disregard.[44] There is nothing in this ground of appealThe NZKC erred in registering non-complying document[45] Mr Minchin next argued that the document accepted for registration, which asearlier noted was referred to in the evidence as the Lease Agreement, but which wasin fact entitled "Application For Registration Of The Loan Or Use Of A Bitch ForBreeding Purposes", was simply a gateway into the NZKC administrative process andnot a substantive agreement at all. There being no valid registered lease in terms ofthe regulations, Ms Faulkner, as the registered owner of Fudge, should have beentreated as the breeder and therefore entitled to, as she did, request transfer ofthe puppies to the full register, and entitled to change their names.[46] Mr Minchin relied upon reg 8.1.3 which provides:The breeder of any litter is deemed to be:—(a) the owner or owners of the bitch according to [the NZKC] Register or(b) the lessee of the bitch pursuant to an Agreement for Loan or Use ofBitch registered with [the NZKC] pursuant to these Regulations.[47] We agree that at first blush it does seem a peculiarity that in the evidencethe parties (including Mr Dunne, the Director Secretary of the NZKC) have proceededupon the basis that the Application for Registration form was itself a lease document.So too, it seems, did the Tribunal. On one reading of the Application Form it expresslycontemplates a separate lease document being in existence, with the notation at theend "Please Complete Loan of Bitch Agreement Form in Triplicate".[48] However, Mr Isac for the NZKC submitted that the application form isthe NZKC standard form lease agreement. Because that submission is consistent withhow the form is treated in the evidence we therefore proceed on that basis. That beingthe case, Ms Howard was the breeder for the purposes of reg 8.1.3 and the NZKC wascorrect to treat her as such.[49] Mr Minchin next argued that if the application form is to be treated as the leasefor registration purposes, it is void for uncertainty. We do not accept that. It has theessential terms needed for the very limited purposes of the agreement; the term oflease, the identity of the parties, and which party is to be treated as the breeder for thepurposes of the NZKC.[50] Mr Minchin also argued that the Judge erred in dismissing arguments inconnection with the dating of the Lease Agreement, and in finding that the requirementthat the application be provided in triplicate was a technicality. As to the latter,Mr Minchin relied upon reg 13.4 which requires that a "Loan or Use of Bitch forBreeding Purposes Agreement" be registered in triplicate within three months of thedate of signing, and reg 3.6 which provides that "In all cases" original forms must beused, original signatures must be affixed and photocopies or facsimile copies of anyform or signature are not acceptable.[51] Mr Minchin said that this lax approach to compliance with the rules contrastswith the NZKC's refusal to accept the registration of Jenny's offspring. He said thatthis was unfair because Jenny had been put to stud at a time when the NZKC hadaccepted Jenny for showing (even though she was on the restricted register at thattime). Mr Minchin argued that the refusal to accept Jenny's offspring for registrationshowed a strict application of the Rules and the Registration Regulations bythe NZKC, which can be contrasted with its preparedness to overlook the failure tofile triplicate copies of the Lease Agreement. He argued this inconsistency inrequirement of strict compliance with the rules was unfair and that an adherence toprocedure is a fundamental component of natural justice as it ensures that all aretreated equally.[52] We agree with the Judge that the NZKC was entitled to proceed on the basis ofthe July date recorded in the Lease Agreement. The evidence suggests that Ms Howarddid not receive the Lease Agreement until July. She could not sign it until then.The Lease Agreement was then properly dated as complete on that date.[53] However, Mr Minchin is correct that the evidence supports the view that onlyone copy of the Lease Agreement was filed. There is no suggestion in the evidencethat Ms Faulkner filled in three copies of that document. But we agree with the Judgethat the arguments as to the filing of triplicate original copies of the Lease Agreementare properly viewed as technical. Although Ms Faulkner may take issue with the datingof the Lease Agreement (an argument which has now been considered and rejected onmany occasions) she did not claim that the Lease Agreement is a forgery.18 If there18 Ms Faulkner alleged that Ms Howard committed fraud when she dated the Lease Agreement.For the reasons we have given, we do not consider that the mere dating of a document with thedate on which it was signed by the last counterparty amounts to fraudulent conduct.had been technical non-compliance with the regulations in this regard, the NZKC hada discretion under reg 6.2 to accept registration notwithstanding such non-compliance.In light of the purely technical nature of this non-compliance and in view of theexistence of this discretion, the Judge was well justified in declining to review theregistration decisions on this ground.[54] There is also nothing in Mr Minchin's point that the NZKC's approach wasinconsistent with the approach it took in connection with the offspring of Jenny.To accept Jenny's offspring for registration would involve overlooking more thanmere technical non-compliance with the Rules and the Registration Regulations.It would involve a departure from the fundamental scheme of registration that onlythe offspring of dogs on the full register may be registered on the full or restrictedregisters.The NZKC's initial determination to register the puppies was in breach ofnatural justice[55] Mr Minchin, rather faintly, again advanced this argument that the NZKC'sdecision to register the puppies on Ms Howard's application was in breach of naturaljustice. Whether or not there was any procedural deficiency (and we are not persuadedthere was) in the subsequent proceedings before the NZKC, and before the Court,Ms Smith has had ample opportunity to be heard on issues material to registration.The Judge was right to reject this ground of review.The NZKC erred in accepting puppies for registration with "offensive" names[56] The final point taken for Ms Smith relates to the naming of the puppies. It willbe recalled that Ms Howard registered them with the names: "Mondial Catch Me ifYou Can", "Mondial Do A Runna", and "Mondial Where the Hell R Ya". She namedher own puppy "Mondial Gone in Sixty Seconds".[57] The Judge found that the names were not offensive.19 Ms Smith contested thatdetermination. Mr Minchin said that the NZKC had a discretion to refuse to registeroffensive names. While accepting that these names would not offend the ordinary19 Smith v New Zealand Kennel Club Inc, above n 1, at [93].person, unfamiliar with the context, he submitted that they are, in context, offensive.First, their presence on the register evokes the dispute, and are a permanent reminderof the situation for Ms Smith. Secondly, the pedigree dog world is a small one, and itis probable that something of this dispute is known within that world. The existenceon the register of the names Ms Howard gave the puppies gives her the imprimatur ofbeing in the right in this dispute. He submitted that to allow one member to engage insuch behaviour, where there is no real advantage to her but is "rubbing anothermember's nose in it" is not conducive to facilitating good relations between itsmembers, a value which underpins the overall scheme of the Rules andthe Registration Regulations.[58] No party referred us to the rule or regulation which conferred upon the NZKCa discretion to decline to register an offensive name. However, Mr Isac accepted thereis such a discretion and we therefore proceed on the basis that there is. Assuming that,as we do for present purposes, it seems to us that the task for the Executive ofthe NZKC to determine whether a name is offensive entails an objective assessmentof whether the names are likely to offend members of the public.20[59] Assessed in this way, there is nothing offensive about the names Ms Howardgave to the three puppies. And even if one does weigh the impermissible, and by thiswe mean the nature and content of the dispute between the parties, these names remaininoffensive. They are light hearted, but what is being named is a dog. Moreover, thenames are in keeping with the name Ms Howard gave her own puppy (Mondial Gonein Sixty Seconds).[60] We have taken Mr Minchin's argument at the highest, which is how it waspresented before the Judge, that the names were intended to be provocative betweenthe parties. But as now presented, Mr Minchin's argument for Ms Smith is really thatit is hurtful and embarrassing for Ms Smith that Ms Howard has retained the right toname the puppies, which makes her seem like the winner in her dispute, and thatMs Howard's wrongful refusal to return Fudge set these events in motion. On the20 See Stirling Bloodstock Ltd v New Zealand Thoroughbred Racing Inc [2017] NZHC 464, [2017]NZAR 547 at [36]; and South Pacific Airlines of New Zealand Ltd v Registrar of Companies[1964] NZLR 1 (SC). We consider that the relevant group for these purposes is the public, sincethe public encompasses both actual and potential pedigree dog owners.basis of this argument, any name Ms Howard gave the puppies would be offensive.On any view, this argument has no prospect of success.Result[61] We have found no merit in any of the grounds of appeal advanced on behalf ofMs Smith.[62] The appeal is dismissed.[63] The respondent accepts that no order of costs should be made against Ms Smithbecause she is legally aided. It asks, however, that we record what costs order wewould have made were it not for that fact. We accept that it is appropriate to do so.If Ms Smith were not legally aided, we would have ordered that she pay the NZKCcosts for a standard appeal on a band A basis and usual disbursements.Solicitors:Thomas & Co, Auckland for AppellantGibson Sheat, Wellington for Respondent