NSW Supreme Court Grants Stay on Dangerous Dog Destruction Order

The court granted a stay of a destruction order for a dangerous dog pending appeal, finding that there were grounds for appeal and that it would be irreparable to destroy the dog before the appeal was exhausted.

Supreme Court New South Wales

Medium Neutral Citation: [NAME] v Blacktown City Council [2023] NSWSC 1197 Hearing dates: 14 September 2023 Date of orders: 14 September 2023 Decision date: 19 September 2023 Jurisdiction: Equity - Duty List Before: McGrath J Decision: See [11] Catchwords: PRACTICE AND PROCEDURE – stay of destruction order – application to stay orders of the [ADDRESS] – no question of principle –

HELD – stay granted Legislation Cited: Companion Animals Act 1998 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Category: Principal judgment Parties: [NAME] (Plaintiff) Blacktown City Council (Defendant) Representation: Counsel: [redacted]

Solicitors: [redacted] File Number(s): 2023/00293181 Publication restriction: Nil

ex tempore

JUDGMENT (revised)

1. Before me is a Summons brought by the plaintiff, [NAME], against the defendant, Blacktown City Council. It is a Summons which has been filed in the registry. It is an urgent application made ex parte which has come before me today as duty judge to seek to stay an order that has been made by the [ADDRESS] at Blacktown on 8 September 2023. That order is for an animal to be destroyed not before seven days by [NAME]. It is, in effect, a destruction order which has been made by the [ADDRESS] pursuant to s 48 of the Companion Animals Act 1998 (NSW).

2. I also have, as one of the pieces of evidence that has been placed before me, a notice of seizure of dangerous dog dated 21 August 2023 addressed to the plaintiff. That is a letter from Blacktown City Council indicating that [NAME] is the owner of a dog named [NAME], being a male German Shepherd dog black and tan in colour, which had been declared to be a dangerous dog on 27 June 2023.

3. The letter states that the dog was seized from a property in [ADDRESS] due to it being involved in what is said to have been an unprovoked attack on police officers at that residence on 17 August 2023.

4. The letter from the council also recites that the dog has been seized under s 58G(1) of the Companion Animals Act, which states that: "An authorised officer may seize a dangerous dog if the dog attacks or bites a person or animal without provocation".

5. The dog was also seized under s 58G(1A) of the Companion Animals Act due to non-compliance with a dangerous dog declaration.

6. I am satisfied on the material before me that there is a prima facie ground of appeal which might be made against the order that was made by the [ADDRESS] for the destruction of [NAME]. I am satisfied that there are, based on the material that has been placed before me and what was said from the bar table by Mr [NAME] acting as amicus for the plaintiff, grounds pursuant to which there could be a challenge to the basis on which it was said that [NAME] had been involved in an attack or bite without provocation.

7. I am also satisfied that in the circumstances, on the balance of convenience, that it would be irreparable if the dog was to be destroyed before all of the appeal grounds had been exhausted in this case.

8. In those circumstances, I consider that it is appropriate for me to order a stay of the destruction order that has been made by the [ADDRESS]. I propose to make that order. I am concerned to ensure that the stay is only in place for a period sufficiently required for the appeal to be lodged, which would, in the ordinary course, be an appeal to the Common Law Division of this court.

9. In the circumstances, I propose that there should be a stay, and that the stay will operate for a period of 14 days. At the end of those 14 days, the matter should come back before the duty judge of this court.

10. In the meantime, any appeal which is sought to be brought against the destruction order that has been made by the [ADDRESS] should either be exercised or not, and at the end of those 14 days, if it has not been exercised, then it would be anticipated by me that the stay of the destruction order would be lifted. 11. [ADDRESS] makes the following orders, directions and notations:

1. Stay the order made by [ADDRESS] at Blacktown on 8 September 2023 for the destruction of the dog named "[NAME]" owned by the plaintiff until 29 September 2023.

2. Directs that a copy of the Summons and these orders are to be served in the following manner:

1. By email to [EMAIL] and [EMAIL] by 6:15pm on 14 September 2023;

2. In person by 10:00am on 15 September 2023 to Blacktown City Council by hand delivery to: 1. 20 [ADDRESS] [POSTCODE], being the [COMPANY]; and 2. Blacktown City Council at 62 [ADDRESS] [POSTCODE]. 1. [NAME] of counsel to send a copy of the Summons and these orders via email in conformity with order 2(a) above.

2. Stands the matter over to the Equity Duty Judge at 2:00pm on 27 September 2023.

3. Liberty to apply on 3 hours' notice.

4. Having been satisfied that it is in the interests of the administration of justice, pursuant to r 7.36 of the Uniform Civil Procedure Rules 2005 (NSW), order that the plaintiff in these proceedings be referred to the Registrar for further referral to the Pro Bono Panel for legal assistance.

5. These orders be entered forthwith.

********** 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: 06 October 2023