[2017] NSWSC 300

Adamson v Coffs Harbour City Council

(1) The Court declares that the Menacing Dog Declaration made in respect of the plaintiff's dog named "Indy" bearing microchip number 9430943200186325 by the defendant on 27 October 2016 is invalid. (2) The defendant is to pay the plaintiff's costs of the proceedings on the ordinary basis as agreed or assessed. (3) The Court notes the agreement of the parties that for the purposes of order 2 the word "costs" and the words "ordinary basis" have the meanings provided in s. 3(1) of the Civil Procedure Act 2005.

Catchwords

DECLARATION – Menacing dog – Where defendant made declaration prior to allowing the plaintiff the full prescribed statutory period in which to make submissions – Declaration declared invalid

Legislation cited

Companion Animals Act 1998 (NSW)
Civil Procedure Act 2005 (NSW)

Judgment

[1]
By an amended summons filed on 1 March 2016, the plaintiff in these proceedings seeks judicial review of a decision by the defendant, made pursuant to s. 34 of the Companion Animals Act 1998 (NSW) (“the Act”), to declare a dog named "Indy" a menacing dog.
[2]
The amended summons is supported, in part, by an affidavit of the plaintiff of 31 January 2017 to which a number of documents are exhibited. Although the plaintiff relies on a number of separate grounds in support of the relief that he seeks, and without determining a number of those grounds upon which reliance is placed, I am satisfied that the orders sought by the plaintiff, which are now consented to by the defendant, are appropriate.
[3]
Section 34 of the Act is in the following terms:
[4]
Section 35 of the Act is in the following terms:
[5]
Section 37 is in the following terms:
[6]
The notice issued by the defendant under s. 35 indicating the proposal to make a declaration was dated 13 October 2016. However, the uncontradicted evidence is that the notice was not received by the plaintiff until 24 October 2016. Under s. 37 of the Act the plaintiff, as the owner of the dog, had 7 days in which to object. However the defendant proceeded to make the declaration on 27 October 2016. That was only 3 days after the notice under s. 35 was received by the plaintiff. It follows that the plaintiff was not given the 7 day period prescribed by s. 37 in which to object to the making of the declaration.
[7]
In these circumstances, the defendant concedes that the declaration is invalid and consents to the making of the following orders:
1. (1)
  The Court declares that the Menacing Dog Declaration made in respect of the plaintiff's dog named "Indy" bearing microchip number 9430943200186325 by the defendant on 27 October 2016 is invalid.
2. (2)
  The defendant is to pay the plaintiff's costs of the proceedings on the ordinary basis as agreed or assessed.
3. (3)
  The Court notes the agreement of the parties that for the purposes of order 2 the word "costs" and the words "ordinary basis" have the meanings provided in s. 3(1) of the Civil Procedure Act 2005.