NEW PLYMOUTH DISTRICT COUNCIL v LOW [2022] NZHC 1154

NEW PLYMOUTH DISTRICT COUNCIL v LOW [2022] NZHC 1154 [24 May 2022]IN THE HIGH COURT OF NEW ZEALANDNEW PLYMOUTH REGISTRYI TE KŌTI MATUA O AOTEAROANGĀMOTU ROHECRI-2022-443-33[2022] NZHC 1154BETWEEN NEW PLYMOUTH DISTRICT COUNCILAppellantAND ESTELLE GRETA LOWRespondentHearing: 24 May 2022Counsel: J E Bourke for AppellantJ C Hannam for RespondentJudgment: 24 May 2022JUDGMENT OF SIMON FRANCE J[1] The applicant seeks leave to appeal the decision of the District Courtdismissing charges under s 147 of the Criminal Procedure Act 2011.1 The chargeswere laid under the Dog Control Act 1996 (the Act), and the issue concerns the correctinterpretation of the term "owner". The respondent accepts that a question of law ofgeneral importance arises. I agree and leave to appeal is given.[2] The definition of "owner" is found in s 2 of the Act, with the issue being thecorrect interpretation of the extended definition in (b):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; or1 New Plymouth District Council v Low [2022] NZDC 5264.(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[3] In the present case when the incident occurred that is the subject of the charges,Ms Low was walking five dogs. Two of the dogs were owned by her, and the otherthree by clients of her dog-care, dog-training and dog-walking business. The issue iswhether a day-care situation such as applied here makes Ms Low owner of the dog atthe relevant time within the meaning of the extended definition.[4] The focus is the applicability of the 72-hour limitation. In supporting theDistrict Court judgment to the same effect, Mr Hannam submits the time limit shouldbe read as applying to the whole paragraph so that an owner cannot be:(a) someone who has possession for less than 72 hours; or(b) someone who has possession for the purpose of preventing the dogcausing injury damage or distress, or for the purpose of restoring a lostdog to its owner.[5] Support for this comes from a Court of Appeal observation in Auckland CityCouncil v Hill:2[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.2 Auckland City Council v Hill [2020] NZCA 52, [2020] 3 NZLR 603 at [17].[6] That passage apparently reads "owner" as being limited to those who possessfor more than 72 hours.3[7] A different reading can be found in Walker v Nelson City Council where adifferent Court of Appeal panel observed:4[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.[8] The effect is to capture as an owner all persons who have possession other thanthose who fit within the limited exception.[9] The applicant submits High Court authority favours the Walker interpretation.In Haskett v Rotorua District Council Fisher J observed:5It will be seen that one of the essential elements of an offence under s 56(4) isthat the defendant must be the "owner" of the dog. That expression has anextended definition pursuant to s 2 of the Act. "Owner" in relation to any dogembraces a number of categories including one who "has the dog in hispossession, whether the dog is at large or in confinement, otherwise than forthe purpose of preventing the dog causing damage or for the sole purpose ofrestoring a lost dog to its owner".[10] To like effect is the comment of Miller J in Turner v South Taranaki DistrictCouncil:6[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 possession,manage and dispose, and correlative obligations to care for the animal andprevent harm to others.3 It can be noted that the passage does not expressly comment on possession for less than 72 hours,but the inference is that the extended definition is limited to possession for more than 72 hours.4 Walker v Nelson City Council [2017] NZCA 526 at [10].5 Haskett v Rotorua District Council HC Rotorua AP 76/26, 7 December 1992 at 4.6 Turner v South Taranaki District Council [2013] NZHC 1603, [2013] NZAR 1046 at [15]–[16].[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.[11] It can be noted the observations in Hill were obiter. The issue there was thecorrect approach to be adopted under s 57(3) of the Act which concerns exceptionalcircumstances allowing a Court to not order destruction of a dog. The commentconcerning ownership was made in the context of outlining the statutory scheme butit was not a point in issue.[12] I agree with the approach of the High Court decisions which are consistent withWalker. For the purposes of the 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] To state it another way: possession for more than 72 hours always makes theperson an owner. Possession for less than 72 hours normally makes the person anowner, but may not do so if the possession is for one of the identified purposes. As analternative to "otherwise than", if the language were instead "except" no real doubtwould exist. It is difficult to see that "otherwise than" is intended to introduce a whollydifferent reading.[14] My interpretation of the section is that its intent is to say (and that it does usingother words say):an owner is also someone who has the dog in his or her possession , unlessthat possession is for the purpose of preventing the dog causing injury andlasts no longer than 72 hours.[15] The judgment under appeal followed the obiter comment in Hill, and for thisreason is in error.[16] For completeness I also observe concerning one of the dogs in relation to whichcharges were laid, the Judge appears to have overlooked that Ms Low was the owner.The appeal would necessarily have succeeded on that limited point (without engagingwhether that issue standing alone would merit a grant of leave).Conclusion[17] The application for leave to appeal is granted.[18] The appeal is allowed. The charges were incorrectly dismissed under s 147 ofthe Criminal Procedure Act, and are reinstated.___________________Simon France JSolicitors:Crown Solicitor, New Plymouth for AppellantHannam & Co, New Plymouth for Respondent