Curmi v Blacktown City Council [2023] NSWSC 1614

Supreme Court New South Wales

Medium Neutral Citation: Curmi v Blacktown City Council [2023] NSWSC 1614 Hearing dates: 13 December 2023 Date of orders: 13 December 2023 Decision date: 13 December 2023 Jurisdiction: Common Law Before: Garling J Decision: See [14] Catchwords: CIVIL PROCEDURE – hearings – adjournment – where duty judge fixed matter for final hearing on short notice – defendant council seeks to prepare and adduce further evidence relating to seizure of dog – where plaintiff opposes adjournment due to prejudice – whether orderly administration of justice warrants an adjournment – whether defendant council need an opportunity to obtain further evidence – hearing vacated Legislation Cited: Companion Animals Act 1998 (NSW) Cases Cited: Not Applicable Texts Cited: Not Applicable Category: Procedural rulings Parties: Connie Curmi (P) Blacktown City Council (D) Representation: Counsel: A Martin (P) W Chan (D)

Solicitors: NSW Law (D) File Number(s): 2023/445929 Publication restriction: Not Applicable

EX TEMPORE JUDGMENT 1. On 8 December 2023, the plaintiff filed a Summons seeking judicial review of a decision and consequent conduct by which a dog, which was then in the company of and resident at the plaintiff's home, was seized in the exercise of various statutory powers under the Companion Animals Act 1998 (NSW). Since that time, the dog has been kept at the Blacktown Animal Rehoming Centre. 2. Whilst the area in which the dog is held is a confined one, I am not satisfied, on the basis of material available to me, that the dog is not being fed, looked after and adequately cared for in the circumstances in which it is now held. 3. I do not suggest, and I do not find, that the circumstances in which the dog is presently being held would be the same as if the dog was at home with the plaintiff. 4. However, I am not satisfied, on the material before me, that there is any prejudice in the dog remaining where it is for a short period of time. 5. On 8 December 2023, the Duty Judge of the Common Law Division made various orders which included orders relating to the service of the Summons and accompanying documents, an order that the Summons be returnable before the Duty Judge today, and orders with respect to submissions and the filing of evidence. It is clear to me that the intention of the Duty Judge in making those orders was to fix the matter for a final hearing today on the basis that it would take less than two hours. 6. I am satisfied from an affidavit of the solicitor for the defendant Council that his understanding, which he accepts may have been a misunderstanding, was that the matter would not be dealt with to finality today. He has put on evidence which satisfies me that the Council would wish to adduce further evidence in support of its opposition to the relief being sought in the Summons. 7. Whilst he predicts that the witnesses who the Council may wish to call may not be available or able to provide evidence prior to the resumption of the Court term in 2024, it seems to me that the urgency surrounding this matter requires the Court to hear and determine the Summons on a final basis earlier than the resumption of the Court's usual calendar in February 2024. 8. The Council will have to do its best to obtain such evidence as it reasonably can to address the issues raised. In that respect, I note that in significant measure, much, although not all, of the evidence will be given by an authorised officer of the Council who appears to have at least commenced the task of preparing a full account of what occurred. 9. The evidence, as I understand it, which may not be available is the personal attendance of one or more police officers; although it does appear that the police records, including video of the events of a day which is relevant to these proceedings, is available and, in accordance with the usual business records, evidentiary rules, would be able to be tendered. 10. In any event, the urgency of the matter is such that the Council will simply have to do its best to put forward any evidence which it can, using due diligence, obtain. 11. The plaintiff opposes any adjournment. She says the matter is urgent; the Court fixed it for hearing; the issues are simple; she has a clear and strong case that the seizure of her dog was unlawful; and that, without recounting the detail, she personally suffers significant prejudice without having access to the dog. 12. I recognise the need on the one hand of the plaintiff to have the matter dealt with urgently, both because it is an urgent matter and because of her personal upset and distress at what has occurred and her not having any access to the dog. On the other hand, it would be to diminish the important value of the orderly administration of justice to force the defendant on to a hearing now in circumstances, through no fault of its own, where it does not have all of the evidence it wishes to rely upon. It needs an opportunity to obtain that evidence. 13. Accordingly, I will vacate the hearing of the matter today and I will shortly make some subsequent orders. Before formally pronouncing that order, I note the undertaking given by counsel for the defendant that prior to any decision being made by this Court in this case the council would not take any step to destroy or harm the dog and would take all reasonable steps to maintain its life and well-being.