Supreme Court New South Wales Medium Neutral Citation: Curmi v Blacktown City Council (No.2) [2023] NSWSC 1615 Hearing dates: 15 December 2023 Date of orders: 15 December 2023 Decision date: 15 December 2023 Jurisdiction: Common Law Before: Garling J Decision: See [19] Catchwords: CIVIL PROCEDURE – where urgent final hearing date was vacated – prejudice to plaintiff from adjournment – whether plaintiff should be allowed to visit the dog as a condition of the adjournment – whether dog should be permitted to return to plaintiff pending final hearing – prejudice addressed sufficiently by permitting plaintiff to visit the dog at Rehoming Centre – reject condition that dog be returned to plaintiff – matter adjourned until final hearing 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 M Fozzard Solicitors: NSW Law (D) File Number(s): 2023/445929 Publication restriction: Not Applicable ex tempore JUDGMENT 1. On 13 December 2023, I heard and gave judgment in an application by the defendant Council in this matter to adjourn the urgent final hearing of the proceedings. I granted the defendant Council's application for an adjournment of the final hearing of the proceedings and noted that the proceedings would be heard on 15 January 2024 and thereafter as required. 2. An issue which arose in the course of that hearing was the prejudice that would flow to the plaintiff from any adjournment. One of the matters raised was that the plaintiff had been prevented from having any access to the dog whilst it was detained at the Blacktown Animal Rehoming Centre. It was said by the then counsel for the Blacktown Council that access had been denied, on his instructions, because of the dangerous and aggressive behaviour of the dog whilst confined at the Rehoming Centre. The instructions which counsel received and put before the Court were, on their face, inconsistent with the content of an email sent by the relevant Council officer to the plaintiff in September 2023 that said this, "In regards with visiting, unfortunately if the dog is currently under investigation with the law enforcement section. It's not allowed for the owner to come and visit." 1. I raised with the defendant whether such prejudice as existed by reason of further delay, which included prevention of the plaintiff visiting the dog, was a matter of prejudice and therefore whether, to remedy that prejudice, a condition of the adjournment ought be a condition which permitted visitation. Having raised that, counsel for the plaintiff made an application that a condition of the adjournment imposed for the purpose of remedying any prejudice ought be that the dog be permitted to return back to the custody of the plaintiff pending the hearing on 15 January 2024, and any period during which the matter remained undecided. 2. There were a number of issues which needed to be addressed if the plaintiff was to make good her submission about allowing the dog to return to her custody. I do not propose to canvas those matters in detail, but one of the questions was whether the enclosure in which the dog would be kept would be compliant with all of the relevant requirements of the Council. 3. I then adjourned the matter until today. When the matter was called on today, evidence was placed before the Court which indicated that, except in a minor respect, each of the two proposed containment areas for the dog at the plaintiff's premises were compliant with the requirements of the Council for the detention of a dangerous dog. To the extent there is non-compliance, I regard that non-compliance as minor and of no importance. However, the Council maintained its opposition to any condition permitting visitation and any condition permitting the return of the dog to the plaintiff for a temporary period. 4. I am not here to determine whether the contested matters of fact on both sides of the record are correct or not. That must necessarily abide by the final hearing. I am here to determine whether or not one or other of the two conditions proposed by the plaintiff, which are in the alternative and which are both opposed by the Council, should form part of the final orders. 5. The facts, as they appear to me to be within this compass as a matter of history, are as follows. In June 2023, the Council made a dangerous dog declaration pursuant to s 34(1) of the Companion Animals Act 1998 (NSW) with respect to the dog in question upon the basis that in February 2023 and again in May 2023 the dog had escaped its containment, in one case from a parked vehicle and in another case from a fenced front yard, and on each occasion, in the course of displaying unreasonable aggression, had attacked and inflicted injuries on two separate people. 6. The dangerous dog declaration has been challenged in the Local Court and that challenge was unsuccessful. There is an appeal presently on foot in the District Court which has been fixed for hearing on 8 and 9 April 2024. As well in issue in those proceedings is whether the destruction order was properly made and whether the District Court should confirm or overturn that order. 7. On 18 August 2023, in circumstances which, on any view, are the subject of dispute at least as to the consequence of what occurred in a legal sense, the dog was seized by the Council in circumstances where it is contended by the Council that the enclosure was not compliant, that the dog was not muzzled or being controlled on a lead and, on the Council's contention, that the dog was displaying aggressive behaviour. 8. The dog has been kept since at the Rehoming Centre in circumstances where it has been provided with food and water, kept in a confined area and has had some interaction, the full detail of which is not before me, with at least one member of staff at the Rehoming Centre. It may also be, but I cannot make a final finding, that there has been a restriction on the exercise of the dog outside of his enclosure, although there does appear to be some material contained in emails put before the Court that there may have been some limited exercise of the dog in his enclosure. 9. Ordinarily, to remedy prejudice caused by an adjournment, the Court commences with a position where, pending a final hearing, the appropriate course is to maintain the status quo so as to ensure that there should not be any further deterioration or significant adverse prejudice to or consequent upon any of the parties or any animal or items the subject of the litigation. 10. The plaintiff contends that the appropriate way of maintaining the status quo is to release the dog back to her. Had I been considering this at or about the time or shortly after the seizure occurred, that would be a more persuasive submission than it is now - approximately four months later. As I see it, the status quo is that the dog is presently being held at the Rehoming Centre and the position is that the plaintiff is not permitted by the Council to visit the dog. 11. The explanations given to the Court are: first, the dog is dangerous and aggressive and therefore no-one is entitled or permitted to see it; or, alternatively, that because there is a legal process in train, no-one is entitled to visit the dog. Both seem to me to be unconvincing. On any view, the plaintiff has been in the position of owning the dog and being in the company of the dog for a considerable period of time. 12. The issue is not, as it seems to me, whether at the Rehoming Centre the dog behaves in one way or another to a staff member or a visitor or a volunteer but, rather, how I should understand the dog behaves towards the plaintiff. The only evidence about that satisfies me that whilst the plaintiff is fit and healthy and able to interact with the dog, there have been no difficulties. The difficulties with the dog occur when the dog is not in the company of the plaintiff because the dog has escaped or is being held away from the plaintiff. 13. I am not persuaded that there is any reason why I should not permit the plaintiff to visit the dog. On the contrary, that seems to be one sensible way of addressing the prejudice created by the need to adjourn the final hearing. 14. I need to consider whether or not, as submitted by counsel for the plaintiff, a preferable or better or alternative appropriate condition would be to permit the dog to return home. I wish to make it plain that I do not regard myself as an expert in the behaviour of animals and nor do I bring into this decision-making any knowledge outside of what is put before me by the parties. I have an expression of opinion from a person who appears properly qualified that, in dealing with members of the public such as visitors to the Rehoming Centre, the dog has regularly displayed aggression. There is nothing to contradict that. 15. There are materials, photographs and videos, which show that when those photographs and videos were taken the dog was not displaying aggressive behaviour. However, I am far from persuaded on this application that I can translate the times contained in the circumstances photographed and the people in the video to that behaviour being standard across time, when I have other evidence that across time there has been aggressive behaviour displayed by the dog, and that there is a genuine concern that the dog is a danger to the community broadly. 16. I, in my judgment of 13 December 2023, accepted that there was prejudice occasioned by the adjournment of the matter, but I am satisfied that that prejudice can, in the short term, be addressed sufficiently, but not removed entirely, by making an order which permits the plaintiff to visit the dog at the Rehoming Centre. It follows that I reject the submission made by the plaintiff that the proper condition or the appropriate condition or the preferable condition is that the dog be permitted to return back to the plaintiff's home address. 17. The formal orders then are those which I indicated on 13 December would be made: 1. Order, until further order, that the defendant do all things as are reasonably necessary to permit visitation by the plaintiff to the dog at the Blacktown Animal Rehoming Centre providing that such visitation is to occur during usual business and opening hours of the Rehoming Centre and that the plaintiff comply with the standard conditions of entry to that Rehoming Centre and any reasonable request of officers at that centre. 2. Grant the parties liberty to restore the matter on short notice to the Duty Judge. 3. Proceedings adjourned for hearing on 15 January 2024. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 December 2023