WALLACE v WCC [2014] NZHC 2352

WALLACE v WCC [2014] NZHC 2352 [26 September 2014]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCIV 2014-485-6517[2014] NZHC 2352BETWEEN RICHARD MARTIN WALLACEApplicantAND WELLINGTON CITY COUNCILRespondentHearing: 25 September 2014Counsel: Applicant in PersonM K Booth for RespondentJudgment: 26 September 2014JUDGMENT OF SIMON FRANCE J[1] Mr Wallace was the owner of a German Shepherd dog that strayed and was impounded on 7 March 2013. A written notice was sent the next day to the last known address of Mr Wallace. It advised Mr Wallace of the situation and that steps were required to reclaim the dog. It also set out what would happen if these steps were not taken.[2] In addition to the letter, the Animal Services division of the Council left a phone message on the night the dog was impounded. Mr Wallace's statement ofclaim indicates he retrieved the message that day.[3] Evidence filed by the Council indicates that Mr Wallace's son contactedAnimal Services on 12 March 2013. The son was told where the dog was, and whatwas needed. He was also advised that "rehoming" could occur if the dog was not claimed.[4] On 15 March 2013 Mr Wallace himself rang Animal Services. The appropriate person was not available but rang back 10 minutes later. Mr Wallace'sphone was unanswered. A phone message was again left, advising the fees incurred to date and when the dog could be collected. There was no further contact and on 18 March 2013 the dog was rehomed.[5] On 26 May 2014 Mr Wallace filed judicial review proceedings. It is to be immediately noted this was 14 months after the dog had been placed with other owners. The statement of claim records some factual material. It is said Mr Wallace went to the address he had been told, only to find it was incorrect. He then approached the Council only to find the dog had been rehomed. He consulted a lawyer, and then went to Community Law Centre. They advised the writing of a letter which he says was unanswered.[6] Mr Wallace then spent a year tracking down the current whereabouts of his dog. Once successful, he asked for it back but the new owner declined. Mr Wallace then filed these proceedings. He claims the decision of the Council not to reverse its original decision and get the dog back for him was unreasonable. The relief sought is an order returning the dog.[7] On 30 June 2014 the Council filed a statement of defence, and accompanied it with a memorandum noting the difficulties it faced in responding – no ground for review, or legal basis for the claim, had been identified by Mr Wallace, what the Council allegedly did wrong is not identified, and the relief sought (return of the dog) is not capable of being granted. The Council has no control over the dog and no ability to compel its return.[8] On 9 July 2014 a joint memorandum was filed. It set up a timetable which required Mr Wallace to file evidence by 25 July 2014. None has been filed by him. On 27 August 2014 the Council filed an interlocutory application to strike out. The grounds are:(a) the claim discloses no reasonable arguable ground of review;(b) the proceedings are likely to cause prejudice or delay;(c) the relief sought is beyond the jurisdiction of the Court;(d) the applicant has taken no steps to advance his claim.[9] At the hearing Mr Wallace provided an oral narrative of the factual basis on which he says the Council decision was unreasonable. He first explained the process by which he obtained the dog, which obviously was a much cared for companion. For the first two years he had the dog, Mr Wallace lived in Otaki and all was well. However, he says that when he moved back to Wellington he began having issues with the dog control officers. He describes a series of events involving both three occasions of impounding, and several instances of infringement notices (mainly, as I understand it, for not having the dog on a lead). Mr Wallace believes the dog control officers were out to get him, and were waiting for an opportunity. He will submit that this is an important context to the decision to rehome the dog.[10] The circumstances of the impounding on this occasion are not uncommon. Mr Wallace had moved to new accommodation across town. It seems the dog escaped from the new property, and tried to find its way back to the previous address. It was at this point it was found wandering and was impounded.[11] Concerning the circumstances subsequent to Mr Wallace being told the dog had been impounded, Mr Wallace says the amount of money he had already paid in impounding and infringement fees, together with his limited means, meant he could not immediately pay the impounding costs. He claims this was discussed with the Council and he understood the processes would be delayed. He was surprised when after 10 days the dog was rehomed. He considers that, once immediately further alerted to his situation, it was unfair and unreasonable for the Council not to immediately get the dog back.[12] This level of detail, and the claims of bias and unreasonably not extending time, had not previously been provided to the Council so it is fair to observe there has been no opportunity to respond. However, it being a strike out, I proceed on the basis that Mr Wallace can generally establish the context he set out.Decision[13] But for one factor I would not strike the proceedings out. The narrative explained to me by Mr Wallace, once properly set out in the form of evidence, would provide a basis for review of the Council's decision to rehome the dog. Mr Booth for the Council accepts the rehoming of the dog is not a wholly mechanical decision and some discretion exists. Mr Wallace's case would challenge the decision for bias and as being unreasonable, both of which are conceptually available, and fact dependent.[14] However, Mr Wallace made it clear he did not wish to proceed unless a possible outcome was the return of his dog. He was not interested in a process inquiry for its own sake and was not seeking an apology.[15] I am satisfied there is no power in the Council, nor in this Court on judicial review proceedings, to compel return of the dog. The Council's disposal power isfound in s 69(2) of the Dog Control Act 1996. That provision requires that the owner of a dog be given written notice it has been impounded. From seven days after receipt of the notice, the dog may be sold, destroyed or otherwise disposed of as the Council thinks fit. The Act provides no recourse to the dog owner. There is a limited appeal right (s 71B) but it does not apply to disposal under this provision. There is no other provision which gives the Council power to take back the dog. If in a particular case the Council wished to take steps to assist the previous owner, it could not do so by compulsion.[16] I conclude that the third basis advanced by the Council in support of its application, namely that the only remedy sought by Mr Wallace is not available, is correct. The Council has no power to reclaim the dog, and the Court would have no power to order its present owner to return it. I also observe it is very difficult to imagine a court would make such an order, even if it could, given the delay in bringing the proceedings.[17] The application for strike out is granted. The Council is entitled to scale costs (Band A) and reasonable disbursements._________________________Simon France JSolicitors:DLA Phillips Fox, Wellington