TROWNSON V HEARINGS COMMITTEE OF THE WANGANUI DISTRICT COUNCIL HC WANG CIV-2009-483-301

TROWNSON V HEARINGS COMMITTEE OF THE WANGANUI DISTRICT COUNCIL HC WANG CIV- 2009-483-301 24 May 2010IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY CIV-2009-483-301BETWEEN PAUL TROWNSON Plaintiff AND THE HEARINGS COMMITTEE OF THE WANGANUI DISTRICT COUNCIL Defendant Hearing: 12 April 2010 Counsel: J H Waugh for Plaintiff RRM Simon for Defendant Judgment: 24 May 2010 at 4pm I direct the Registrar to endorse this judgment with a delivery time of 4pm on the 24th day of May 2010.RESERVED JUDGMENT OF MACKENZIE JIntroduction[1] The plaintiff is the owner of three Shetland collie (sheltie) dogs, Hansel, Gretel and Rascal. Following complaints in November 2004 and August 2005, Rascal was classified as a menacing dog pursuant to s 33A of the Dog Control Act 1996. A subsequent complaint was made in June 2007 that Rascal had bitten the complainant on the leg as she was walking down the street. On 10 September 2007 Council upgraded Rascal's classification to a dangerous dog under s 31 of the Act. Notice was given to the plaintiff of the classification. The plaintiff objected to the classification, under s 31(3). The objection was referred to the Hearing Committeeof the Council, comprising two councillors which heard the objection on 19 February 2008. The dangerous dog classification was upheld. [2] In this proceeding, Mr Trownson seeks judicial review of the decision of the Hearing Committee dismissing his objection to the classification of Rascal as a dangerous dog. [3] The classification of Rascal as a dangerous dog required the plaintiff to comply with s 32 of the Act, which contains a number of requirements designed to minimise the hazard presented by dangerous dogs. These include a requirement that the dog be neutered and micro-chipped. In March 2009, Mr Trownson was charged with an offence against s 32 of the Act. On 14 July 2009, he was convicted and an order was made for the destruction of the dog. Mr Trownson, in separate proceedings, has appealed against that conviction and sentence. The judicial review proceeding and the appeal were heard together. Judgment is being delivered separately on the appeal, at the same time as this judgment is delivered.The hearing before the Committee[4] The procedures adopted by the Committee are set out in the affidavit of Mr Ross, the Chief Executive of the Council. The actual course of the hearing in this case is recorded in the very detailed minutes which were kept. Evidence in support of the classification was presented by the Council's advocate. The classification had been made on the basis of sworn evidence attesting to aggressive behaviour by the dog especially during an incident on 13 June 2007 outside Mr Trownson's property. The affidavit from the complainant was adduced before the Hearing Committee. She was not able to attend the hearing. She said she had been walking along the street when three dogs ran out onto the footpath. They appeared excited and they were barking. One of the dogs bit her leg. Mr Trownson (whom the complainant knew), called the dogs back onto his property. The complainant telephoned the Council and subsequently went to hospital to have the bite looked at. She said that it caused wide bruising and did break the skin. The Council's animal control officer gave evidence of his investigations. He said that Rascal had been identified in August 2005 as the dog responsible for biting a woman, and was classified as a menacing dog. Thatrequired the dog to be muzzled when off the property and this had not been done. Another witness who had sworn an affidavit and was present at the hearing described an event on 14 January 2008. She said she was out walking when a dog jumped over a fence and went towards her four year old daughter, who was on a bicycle, growling and barking at her and then biting around her feet and legs. In accordance with the Committee's usual practice, cross-examination of persons giving evidence was not permitted. Any questions had to be put through the Chair. Mr Trownson was able to question this witness. [5] Mr Trownson appeared on his own behalf. He had five witnesses as well as himself. Some of these witnesses challenged aspects of the evidence of the complainant. The witnesses expressed their views that Rascal was not a dangerous dog. These witnesses were questioned. Mr Trownson also gave evidence, challenging aspects of the Council's evidence and denying that Rascal was a dangerous dog. Mr Trownson also produced 17 letters of support. [6] After the evidence was completed, closing submissions were made by the Council, then by Mr Trownson. The Committee then retired to deliberate. Its deliberations are also recorded in the minutes. After about 35 minutes, a decision was reached to uphold the dangerous dog classification.The grounds of review[7] It is important to stress at the outset that this is not an appeal against the Council's decision. It is not open to this Court to review the evidence and make its own assessment of whether the dangerous dog classification was appropriate. That was a matter for the Council. This Court cannot interfere in that process. The function of the Court on this application for judicial review is limited to examining whether the Council has acted lawfully in its processes, and whether it has afforded to Mr Trownson a fair hearing. That limitation on the power of the Court needs to be borne clearly in mind. [8] The grounds for review are that the Committee has misapplied the law in reaching its decision, has acted unfairly at both the hearing and in subsequentdeliberations, has been affected by bias or predetermination and as a result has made an unreasonable decision. The submissions in support of these grounds are advanced under two main heads, summarised in Mr Waugh's written submissions as follows:17.1 illegality - that the Committee misapplied section 31 of the Act specifically failing to take into account a range of relevant matters and failing to take into account matters advanced in support of the objection (s 31(4)(c) and (d) of the Act). 17.2 unfairness – because of various breaches of natural justice and inherent bias in the Committee and a breach of Mr Trownson's legitimate expectations, it is Mr Trownson's position that he has not been given a fair opportunity to be heard and his objection to the dangerous dog classification has not been adequately considered.Illegality[9] Section 31(4) of the Act provides as follows:(4) In considering any objection under this section, the territorial authority shall have regard to— (a) The evidence which formed the basis for the original classification; and (b) Any steps taken by the owner to prevent any threat to the safety of persons and animals; and (c) The matters advanced in support of the objection; and (d) Any other relevant matters— and may uphold or rescind the classification.[10] The gravamen of Mr Trownson's complaint on this aspect of the case is that the Council failed to have regard to 15 out of 17 letters in support of Mr Trownson's objection which were produced at the hearing. Mr Waugh refers to the minutes, which record the position in these terms:The Chairperson said approximately 17 letters had been received in support of Mr Trownson's objection. She further noted that only two people (Ms Whitlock and Mr Cheatley) were present at the incident concerning Ms Ogden (June 2007), and both had been witnesses called by Mr Trownson. Based on this the committee believed that these letters were the only two that would be taken into consideration in its deliberations.[11] Counsel submits that all 17 letters were clearly relevant in terms of s 34(1)(d) and should also have been considered in the Committee's deliberations under s 31(4)(c) as matters raised in support of the objection. Counsel refers to the decision in New Zealand Fishing Industry Assn Inc v Minister of Agriculture and Fisheries as clarifying what is meant by the phrase "have regard to". 1 Matters to which regard must be had may in the end be rejected or accepted only in part but are not to be rebuffed at the outset by a closed mind so as to make the statutory process some idle exercise. Counsel submits that there has been a clear misapplication of law by the Committee. [12] Counsel for the defendant submits that the Committee did take into account the 17 letters of support. It refers to the affidavit of the Chair of the Hearing Committee, Councillor Westwood, who said in her affidavit in opposition to the application for judicial review:36. I can confirm that I assured Trownson that his letters of support would be considered by the Committee. The minutes of the Committee would suggest that, with the exception of two letters, they were not considered. 37. In retrospect the minutes should have been written more clearly. It is my recollection that in regard to the incident involving Ms. Ogden's only two of Trownson's witnesses were present and therefore their letters were relevant. 38. The remaining letters were not relevant to that incident. The minutes of the Committee does state "Taking into consideration this mitigation, the evidence provided and including the letters of support, the Committee agreed that the cumulative effect of the number of incidents that had been reported required the dangerous dog classification on 'Rascal' to be upheld". (p.11 of the Extract from Minutes of Hearings Committee – 19 February 2008). 39. Accordingly, while the minute of the Committee may have been written more clearly, I am satisfied that the Committee in its deliberation did take into consideration those letters of support.[13] I do not consider that the plaintiff has established that the Committee failed to take into account the letters of support. The reference in the minutes to which1 New Zealand Fishing Industry Assn Inc v Minister of Agriculture and Fisheries [1988] 1 NZLR 544.objection is taken, set out in [10] above, was made in the section of the meeting where the Committee was deliberating. The Committee had, in the public hearing, received and accepted all 17 letters. The Committee was entitled to assess the weight to be given to the letters of support, in the light of the affidavit and other evidence before it. The weight to be attributed to different items of evidence was a matter which required consideration by the Committee in the deliberation phase of its proceedings. The comment in the minute needs to be seen in that context. It is, in that context, a comment about the weight to be given to the letters not a comment that the letters were not to be taken into account. I do not consider that any illegality as alleged has been made out.Unfairness[14] Under this head, two aspects fall for consideration. The first is alleged inherent bias in the Committee. Counsel for the plaintiff submits that comments made by the Mayor, Mr Laws, and reported on 11 and 12 January 2008, would lead the reasonable fair minded and informed observer to conclude that there was a real danger of bias. The statements complained of are set out Mr Waugh's submissions in these terms:43. These articles appeared following Mr Trownson's objection to the dangerous dog classification but before the meeting of the Committee on 19 February 2009. The article states that – "the Wanganui District Council confirmed a 6 year old Sheltie who had a history of aggression and had previously bitten people was designated by the Council as dangerous in December but was allowed to remain in its owners care until the hearings committee could consider the appeal." Mr Laws states – "if a dog attacks then end of story, it should be taken away that's the way it should be".Mr Laws goes on to say – "I don't give a rats arse if someone's sick, the dog's not sick and it needs to be uplifted if it is a problem" and continues – "if I had known about the situation I would have said uplift the dog now and we would have imposed those conditions straight away" and continues "in a battle between man and dog man should always win." In the article annexed "C" to Kevin Ross's Affidavit the WDC in a written statement is quoted as saying about Rascal – "it had been uncontrollable 3 times previously and had bitten people in the past.[15] I do not consider that those comments provide any basis upon which a reasonable fair minded and informed observer could conclude that there was a realdanger of bias in the Committee. The Mayor was not a member of the Hearing Committee. The members of that Committee were independent Councillors. There is nothing to suggest that they are likely to give weight to the Mayor's views. There is nothing in the extensive record of the hearing and the deliberation which suggests that there has been any degree of predetermination or any bias in favour of the Mayor's views. Further, it appears that the Mayor's comments are expressed in general terms and do not relate specifically to Mr Trownson's case. The reported comment attributed to the Council in the last article referred to by counsel is a report of the position which was being taken by the Council in its capacity as a party to the hearing before the Committee. In that capacity, the Council was required to adopt a stance of supporting the classification. That stance cannot be attributed to the Committee in any way. There is no evidence to support the proposition that the Committee was biased, or that it had predetermined the matter. On the contrary, the evidence indicates a careful and balanced consideration by the Committee. The allegation of bias cannot succeed. [16] The second aspect raised in support of the submission of unfairness is the submission that Mr Trownson was not given a fair opportunity to be heard. It is alleged that there have been various breaches of natural justice and a breach of Mr Trownson's legitimate expectation. [17] The sequence of the hearing is fully set out in the minutes. The hearing was conducted in accordance with a Hearing Committee procedure which was notified to the parties when notice of the hearing was given. That document indicates a quite formal procedure under which the Council's advocate is to introduce the Council's case and present Council's evidence in support of upholding the classification. Members of the Committee may ask the witnesses questions. The Chairperson may permit the objector or representative to ask questions through the Chair and no cross- examination is permitted. Once the Council case has been completed the Chairperson will invite the objector or representative to introduce his case and present the evidence in support of removing the classification. Again, questions from the Committee members are permitted but cross-examination is not permitted. Closing submissions may then be made. That form of procedure is entirely appropriate to afford a proper hearing to Mr Trownson. The very comprehensiveminutes kept of the hearing indicate that that procedure was followed. I do not consider that there has been any procedural failure which may have resulted in a breach of natural justice, or in a breach of Mr Trownson's right, or legitimate expectation, to a fair hearing. [18] Mr Trowson is clearly most unhappy with the outcome of the decision making process. His distress at the outcome is understandable. However, as I have emphasised it is not the role of this Court to investigate the merits of the Council's case in support of the dangerous dog classification. This is not an appeal against the Council's decision. The function of the Court is limited to ensuring that proper legal processes have been followed in reaching the decision. That has been done in this case.Result[19] For the reasons I have given, none of the grounds of review has been made out. The application for judicial review is accordingly dismissed. Costs are reserved. Counsel may submit memoranda if costs are sought."A D MacKenzie J"Solicitors: Crown Solicitor for Defendant Stephen Ross and Associates for Plaintiff