Supreme Court New South Wales Medium Neutral Citation: Adamson v Coffs Harbour City Council [2017] NSWSC 300 Hearing dates: 28 March 2017 Date of orders: 28 March 2017 Decision date: 28 March 2017 Jurisdiction: Common Law Before: Bellew J Decision: (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) Category: Principal judgment Parties: Chris Adamson – Plaintiff Coffs Harbour City Council – Defendant Representation: Counsel: In person – Plaintiff M Cottom – Defendant Solicitors: HWL Ebsworth Lawyers – Defendant File Number(s): 2017/30954 Publication restriction: Nil Judgment – EX TEMPORE (REVISED) 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: 34 Authorised officer may declare dog to be dangerous dog or menacing dog (1) An authorised officer of a council may declare a dog to be a dangerous dog if the authorised officer is satisfied that: (a) the dog is dangerous, or (b) the dog has been declared a dangerous dog under a law of another State or a Territory that corresponds with this Act. (1A) An authorised officer of a council may declare a dog to be a menacing dog if the authorised officer is satisfied that: (a) the dog is menacing, or (b) the dog is of a menacing breed or kind of dog (or a cross-breed of a menacing breed or kind of dog), or (c) the dog has been declared a menacing dog under a law of another State or a Territory that corresponds with this Act. (1B) A declaration may be made under this section even if the dog is ordinarily kept in another council's area. (1C) The regulations may prescribe procedures that must be followed or matters that must be considered (or both) before an authorised officer makes a declaration under subsection (1A) (b). (2) A declaration can be made on the officer's own initiative or on the written application of a police officer or any other person. (3) A declaration has effect throughout the State. It is not limited in its operation to the area of the council whose authorised officer made the declaration. 1. Section 35 of the Act is in the following terms: 35 Owner to be notified of proposed declaration (1) An authorised officer of a council must give notice to the owner of a dog of the officer's intention to declare the dog to be a dangerous dog or a menacing dog. (2) The notice must set out: (a) the requirements with which the owner will be required to comply if the declaration is made, and (b) the owner's right to object to the proposed declaration in writing to the authorised officer within 7 days after the date the notice is given. 1. Section 37 is in the following terms: 37 Authorised officer must consider dog owner's objections (1) The owner has 7 days after the date the notice is given in which to object to the proposed declaration. (2) If the owner does not object within that time, the authorised officer can proceed to make the declaration after the 7 days have passed. (3) If the owner does object within that time, the authorised officer must first consider the objection before proceeding to make the declaration. (4) A reference in this section to the authorised officer is a reference to any authorised officer of the council and is not limited to the authorised officer who gave the notice. 1. 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. 2. In these circumstances, the defendant concedes that the declaration is invalid and consents to the making of the following orders: 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. ********** 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: 03 April 2017