IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE	
CRI-2022-404-83
[2022] NZHC 951	

BETWEEN	DARRYL PAGE
Appellant	
AND	AUCKLAND COUNCIL
Respondent	

Hearing:	3 May 2022	
Appearances:	R Rao and H Johnson for the Appellant
V Schaaf and L Dempsey for the Respondent	
Judgment:	6 May 2022	

JUDGMENT OF GORDON J

This judgment is delivered by me on 6 May 2022 at 12:00 pm.

.....................................................
Registrar / Deputy Registrar

Counsel:	Rajiv Rao, Inder Lynch, Manukau Solicitors:	Auckland Council

PAGE v AUCKLAND COUNCIL [2022] NZHC 951 [6 May 2022]

Introduction

[1]	The appellant, Darryl Page, pleaded guilty to a charge laid under s 57(2) of the Dog Control Act 1996 (the Act), of owning a dog that attacked a domestic animal. Mr Page now appeals an order made by Judge K Grau on 14 February 2022 at the Manukau District Court for the destruction of the dog concerned, his Rottweiler, “Jazz”.1

[2]	At sentencing Mr Page was ordered to pay a fine of $750, veterinary costs of
$782.70 and to pay emotional harm reparation of $750. The Court also ordered the destruction of Jazz. The sole ground of appeal is that the District Court Judge erred in fact and law by failing to find that the circumstances of the offence were exceptional and did not warrant the destruction of Jazz.

Factual background

[3]	Monita Kumar was the owner of a Chihuahua/Lhasa Apso cross named Nimbus. Ms Kumar and Mr Page live on adjoining properties which are separated by a wire fence.

[4]	A disputed facts hearing was held before Judge Grau to determine whether Nimbus had gone on to Mr Page’s property (in that Nimbus had put her head through the fence before Jazz grabbed her by the throat and pulled her through) or whether Jazz put his head through the fence and grabbed Nimbus from Ms Kumar’s property.2

[5]	Although Mr Page was at home on his property at the time of the events that gave rise to the charge, he did not witness those events.

[6]	The Council called two witnesses, Ms Kumar and her friend Sheetal Goundar who were both present on Ms Kumar’s property at the time of the incident. The Judge referred to the evidence of those two witnesses as follows:3

1	Auckland Council v Page [2022] NZDC 4705 (sentencing decision).
2	Auckland Council v Page [2021] NZDC 14580 (disputed facts decision) at [7]. The decision uses the word ‘his’. However, in his affidavit filed in the District Court Mr Page identifies Jazz as a female dog.
3	Auckland Council v Page, above n 2, footnote omitted.

[9]	Ms Kumar said she was in the front paddock with her four dogs around her, picking fruit for her visitors to take home and showing her friend how her dogs ate pears. The two Rottweiler dogs next door started barking at the fence and her four dogs ran to the fence line and barked at the neighbouring dogs. She turned to stop her dogs from barking and saw Nimbus get pulled through the fence by a Rottweiler. She ran to the fence and saw the Rottweiler holding her dog by the neck and shaking her. She screamed for help but no one came out. The Rottweiler dropped Nimbus, who ran while the Rottweiler chased her. Ms Kumar was calling to Nimbus who came close but hid in the hedge. Mr Page came out, angry at her for bringing her dogs in the front yard. The Rottweiler was still trying to get close to Nimbus. She said Mr Page threw Nimbus over the fence. Nimbus was badly injured. She and her husband made the decision to have Nimbus euthanised, after taking her to the vet.

[10]	In cross examination Ms Kumar agreed her dogs were not on a lead. She also agreed her dogs had run over to the fence and were barking as well, and that it was a confrontation at the boundary. She accepted that Nimbus was jumping up against the fence but disagreed Nimbus was trying to get through it. She was adamant Nimbus was no further than having front paws on the wires. She was adamant the Rottweiler grabbed Nimbus’ neck and pulled her through the fence. She said she directly saw it happen and would never forget it. She could see clearly, it was a paddock with flat land. There were no obstacles. There was no way her dog went through the barbed wire fence herself.

[11]	Mr Goundar, beside the pear tree, saw the neighbour’s dogs start barking, and saw Ms Kumar’s dogs go over to the fence. He heard something he described as sharp, then Ms Kumar said they had snatched Nimbus. She was calling the dogs to back away but Nimbus was on the neighbour’s side. The neighbour came out and told her to keep her dogs on the other side of the yard. Ms Kumar asked him to pass the dog over and he threw it over the fence. Mr Gounder confirmed in cross examination he had not seen Nimbus go through the fence and he did not see the Rottweiler put his head through the fence.

[7]	The Judge also had before her a report from a dog behaviourist, Dr Elsa Flint, obtained for Mr Page which was filed by way of a joint memorandum. Dr Flint said that it is very common for dogs living on adjacent properties to fence run and bark at each other if they have not met in other circumstances. She further said that when dogs are separated by a fence, they commonly challenge one another and can become highly aroused and aggressive in doing so.

District Court Factual Findings and Decision

[8]	The Judge set out her factual findings and decision on “exceptional circumstances” in the following paragraphs of her disputed facts decision:4

4	Auckland Council v Page, above n 2, footnote omitted.

[18]	The only person who saw the incident was Ms Kumar. She was clear about what happened and was unshaken in cross examination. It was her evidence, and Mr Gounder’s, that it was Mr Page’s dogs who started barking first, causing Ms Kumar’s dogs to approach the fence and bark back. Ms Kumar saw Jazz put his head through the wire fence and take Nimbus back through it, shaking her and seriously injuring her. I consider Ms Kumar and Mr Goundar were both truthful witnesses who described what they saw. They made concessions where appropriate. I did not detect exaggeration. The reaction of the bigger dog, Jazz, to the smaller dogs was also consistent with what Dr Flint says about territorial aggression and how larger dogs react to being irritated by smaller dogs.

[19]	I do not consider that there are any exceptional circumstances in this case.

[20]	In particular I do not consider that the behaviour of Nimbus, barking back at Mr Page’s dogs, was the sort of “provocation” the Court of Appeal had in mind as an exceptional circumstance. An example given in the Hill case was of the owner of a dog being attacked by another dog and the owner’s dog attacking the other dog to protect its owner. The circumstances of this case are very different. Nimbus was on her side of the fence. She was jumping up against the fence but she did not go through it. Clearly she and her companions were irritating the larger dog. But it was Jazz who went through the fence and attacked the smaller dog, picking her up and shaking her. The bigger dog had the potential to do so. Precautions could have been taken to prevent this.

[21]	The expert report fortifies my conclusion. I accept that Jazz was not acting in a predatory manner. But, as the report concludes, this was the result of normal dog behaviour; a normal territorial response of aggression. Self- evidently that is not exceptional. Jazz’s otherwise apparently benign nature with livestock, other animals and the owner’s children cannot make the circumstances of the offence exceptional either. Even though Jazz may have been irritated by the smaller dogs at the fence line and was protecting her territory, her conduct shows her response has the capacity to kill a smaller domestic animal. The incident has occurred because the property was inadequately fenced. There is nothing exceptional about precautions being omitted.

[22]	There was some suggestion in the submissions that the loud noise Mr Gounder heard just before Nimbus was pulled though the fence by Jazz might have had an impact in terms of startling Jazz into aggressive action. However, the evidence was that Jazz and his companion were already barking before this noise occurred. Mr Page has said it could have been a tree branch breaking off. The Council say it could have been the noise made by Jazz in pulling the smaller dog through the fence. It can only be speculation to assert this could have been a factor, and I disregard it.

Appellant Submissions

[9]	Mr Rao, for Mr Page, submits that Judge Grau erred by failing to consider the complete circumstances of the attack. Mr Page does not dispute that Jazz did attack

Nimbus but says that, when taking the complete picture into account, there were exceptional circumstances.

[10]	In relation to the first step in the two-step inquiry set out in Auckland Council v Hill namely, determining the circumstances of the offence,5 Mr Rao submits that the following are the immediate circumstances of the offence:

(a)	Jazz remained on her own territory throughout the incident;

(b)	Jazz had been ‘challenged’ by Ms Kumar’s dogs when they went up the fence;

(c)	The dogs on both sides of the fence engaged in barking and aggression;

(d)	Nimbus was jumping against the fence and had her front paws on the wires. Accordingly, Nimbus voluntarily came very close to Jazz;

(e)	There was inadequate  fencing,  and  as  it  was  a  boundary  fence  Ms Kumar shared responsibility with Mr Page for ensuring adequate fencing;

(f)	Jazz was driven to attack by her instinctive response to protect her territory; and

(g)	The attack occurred over a short time frame.

[11]	Mr Rao submits that these circumstances show that Jazz attacked Nimbus due to her instinct to protect her own territory.

[12]	On the second step identified in Hill, Mr Rao submits that the circumstances are exceptional. He submits that the Judge was wrong to conclude that “normal dog behaviour”, in this case the territorial response of aggression, self-evidently leads to the conclusion that the attack was not exceptional. Mr Rao suggests that there is no

5	Auckland Council v Hill [2020] NZCA 52, [2020] 3 NZLR 603.

principle in Hill that “normal dog behaviour” cannot give rise to an exceptional circumstance. Moreover, the exculpatory examples referred to in Hill, such as a dog protecting its owner, are all examples of a dog’s natural response of aggression being excused.6

[13]	Mr Rao concludes by submitting that there were unusual circumstances which were exceptional and unlikely to be repeated.

Respondent Submissions

[14]	Ms Schaaf, for Auckland Council, submits that the Judge did not err, and there is nothing exceptional about the circumstances of the attack.

First step

[15]	Ms Schaaf responds to each of the points made by Mr Rao regarding the circumstances of the offence as set out in [10] above. She says first, the submission that Jazz remained on the property at all times during the incident is not correct. The findings of the Judge and the evidence of the witnesses is clear that Jazz pushed her head through the fence. That is not consistent with the submission for Mr Page that Jazz remained on Mr Page’s property.

[16]	Second, Ms Schaaf points out that Ms Kumar’s dogs (including Nimbus) did not approach the boundary fence until after Jazz and Mr Page’s other dog started barking.

[17]	Third, there was no finding in the disputed facts decision nor the summary of facts that there were mutual displays of aggression.

[18]	Fourth, it is not clear how close Nimbus was to Jazz when Nimbus put her front paws up against the fence.

[19]	Fifth, Ms Schaaf submits that it is not correct to say Ms Kumar contributed to the attack (as regards the fencing between the properties). None of Ms Kumar’s dogs

6	At [76].

attacked, or even left the property. The responsibility falls solely on Mr Page as it was his dog which both escaped his boundaries and attacked another dog.

Second step

[20]	Ms Schaaf submits that these are not exceptional circumstances. Exceptional means “an unusual or one-off occurrence that is most unlikely to be repeated”.7 She submits that Jazz initiated this entire incident and in response to Nimbus barking back, attacked her. This type of “normal territorial response of aggression” or “normal dog behaviour” is not exceptional and is not an unusual or one-off occurrence. Ms Schaaf submits that based on Hill that the Court should expect the dog to behave in the same way in similar circumstances.8 Accordingly, Jazz can be expected to act in a similar way and continues to pose a danger.

[21]	Ms Schaaf contests Mr Rao’s argument that there was some underlying provocation in this case, submitting there is no factual basis for that assertion.

Discussion

[22]	An appeal against a dog destruction order operates as a general appeal, and as such the appellant is entitled to a judgement in accordance with the opinion of this Court.9

[23]	This appeal concerns the application of s 57(3) of the Act. Section 57 provides in relevant part as follows:

57 Dogs attacking persons or animals

(1)	A person may, for the purpose of stopping an attack, seize or destroy a dog if—
(a)	the person is attacked by the dog; or
(b)	the person witnesses the dog attacking any other person, or any stock, poultry, domestic animal, or protected wildlife.
(2)	The owner of a dog that makes an attack described in subsection (1) commits an offence and is liable on conviction to a fine not exceeding
$3,000 in addition to any liability that he or she may incur for any damage caused by the attack.

7	At [64].
8	At [7].
9	Auckland Council v Hill [2018] NZHC 3315 at [28], citing Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103; [2008] 2 NZLR 141 at [16].

(3)	If, in any proceedings under subsection (2), the court is satisfied that the dog has committed an attack described in subsection (1) and that the dog has not been destroyed, the court must make an order for the destruction of the dog unless it is satisfied that the circumstances of the offence were exceptional and do not warrant destruction of the dog.
…

[24]	As is apparent, s 57(3) requires the Court to consider whether the circumstances of the offence were exceptional, and do not warrant destruction of Jazz. The starting point is to identify the circumstances of the offence. The Court then goes on to ask if those circumstances were exceptional, and do not warrant destruction of Jazz.10 The Court of Appeal in Hill summarised how those steps operate as follows:11
[5]	The first step in applying s 57(3) is to identify the relevant circumstances of the offence. What happened? This inquiry should focus on the immediate circumstances of the attack itself. The dog’s history does not form part of the circumstances of the offence. Events that occur after the offence is complete – that is, after the attack occurs – also are not circumstances of the offence. The phrases “circumstances of the offence” and “circumstances of the attack” are equivalent in this context.

[6]	The second step is for the court to ask whether the circumstances of the offence were exceptional and do not warrant destruction of the dog. Section 57(3) proceeds on the basis that the attack of itself establishes that there is a risk of the dog attacking again in similar circumstances. The focus is on whether those circumstances were sufficiently exceptional that that risk is remote, and does not justify destruction of the dog in the interests of public safety.

[25]	Turning to step one, “the circumstances of the offence must include all the (immediate) circumstances that caused or contributed to the attack”.12

[26]	In this case the (immediate) circumstances are set out in the disputed facts decision, the relevant parts of which are quoted above. Jazz and Mr Page’s other dog started barking first. Nimbus and Ms Kumar’s three other dogs then approached the boundary fence and barked back. Ms Kumar acknowledged there was a confrontation at the boundary. To that extent it can be said there were mutual acts of aggression. Nimbus jumped up against the boundary fence putting her front paws on the wires of the fence. I accept Ms Schaaf’s submission that it is not clear how close Nimbus was

10	Auckland Council v Hill, above, n 5 at [62].
11	At [5] and [6].
12	At [67], citing Halliday v New Plymouth District Council HC New Plymouth CRI-2005-443-11, 14 July 2005 at [42].

to Jazz when Nimbus put her front paws up against the fence. However, at some stage the two dogs must have been sufficiently close for the next step to have occurred. That is that Jazz put her head through the wire fence and took Nimbus back through the fence on to Mr Page’s property, shaking Nimbus and seriously injuring her. These events occurred over a relatively short time frame.

[27]	I do not accept Mr Rao’s submission that Jazz did not leave the property. While it is perhaps a fine distinction, Jazz’s head left the property, and this was sufficient for her to grab Nimbus by the neck.

[28]	Turning to step two the Court is required to consider whether the above circumstances are exceptional such that they do not warrant destruction of Jazz. The requirements of step two are cumulative. But they are linked and should be applied together.13 As the Court of Appeal said the second requirement informs the first — the circumstances must be exceptional in a way that means the destruction of the dog is not warranted. The Court of Appeal further said:

[75] This test requires the court to focus on the circumstances of the offence/attack, and the risk that similar circumstances will occur in the future. It does not require the Court to undertake the difficult, if not impossible, task of inquiring into the psychology of the dog and making predictions about how the dog is likely to behave in the future. The inquiry contemplated by the Act is in our view much simpler. Section 57(3) proceeds on the basis that the previous attack establishes that there is a risk of the dog attacking again in similar circumstances. So the focus is on whether those circumstances were sufficiently exceptional that that risk is remote and does not justify destruction of the dog in the interests of public safety.

[29]	This is an incident where Mr Page’s dog initiated an incident at the boundary of Mr Page’s property. In response to Ms Kumar’s dogs, including Nimbus, reacting, Jazz put her head into Ms Kumar’s property, attacked Nimbus by the neck and dragged her into Mr Page’s property and continued attacking Nimbus.

[30]	Mr Rao submits, referring to Dr Flint’s report, commented upon by the Judge that this was a normal territorial response of aggression. He refers to one of the examples given by the Court of Appeal in Hill where a dog’s natural response of aggression might be excused:

13 Auckland Council v Hill, above n 5 at [74].

[76] If for example the owner of dog A was rushed or attacked by dog B, and dog A attacked dog B in order to protect its owner, a Judge might well conclude that the circumstances were exceptional and do not warrant the destruction of dog A.

[31]	As is apparent from the above quote from Hill, just because a dog’s behaviour can be regarded as “normal” does not exclude the possibility that the circumstances might be exceptional. I also accept Mr Rao’s submission that the examples in Hill where a dog’s aggression might be excused are not exhaustive. But the only context in which Mr Rao’s submission would apply would be where there were exceptional circumstances and the dog’s normal territorial aggression is permissible, such as where an owner is attacked. The circumstances surrounding the attack in this case are completely ordinary. Neighbouring dogs barking at each other is perhaps the most normal of circumstances (as stated by Dr Flint).

[32]	I agree with the District Court Judge that the circumstances of this case are very different from the example given by the Court of Appeal in Hill. Nimbus was on her side of the fence. She jumped up against the fence but she did not go through it. It was Jazz who put her head through the fence and attacked the smaller dog picking her up and shaking her.

[33]	I see there being no element of provocation in this case. Nothing in the factual findings supports this and Jazz and Mr Page’s other dog initiated the altercation. In van Delden v Waitaki District Council, this Court held that even where the aggressor dog had been bitten on the nose by another dog that this would not amount to an exceptional circumstance warranting violence.14 Barking is clearly less serious than a bite to the nose. Consequently provocation excusing the attack, is not made out.

[34]	I do not accept Mr Rao’s submission that the failure to adequately fence the property would amount to an exceptional circumstance where the fence is on a shared boundary. In Hill, the Court of Appeal went as far as to say that even a single failure to contain a dog would not amount to an exceptional circumstance.15 In Easthope v Auckland Council, the Court of Appeal upheld the decision of the lower court that a dog escaping through an open gate and attacking another animal does not amount to

14	van Delden v Waitaki District Council [2021] NZHC 2264 at [79].
15	At [78].

exceptional circumstances under the Act.16 In van Delden v Waitaki District Council, it was also held that a dog escaping through a gap in a fence does not constitute an exceptional circumstance.17

[35]	The Court of Appeal in Hill held that the focus is on the risk that a dog poses to people and animals assuming it can be expected to behave in the same way in similar circumstances.18 In this case the Court can be satisfied that if there is another situation where a dog or domestic animal were to approach the boundary fence then a similar attack would occur again.

[36]	On the second step of the test, I do not consider that there are exceptional circumstances. There is nothing exceptional about a dog initiating an altercation with a dog on a neighbouring property that results in the aggressor causing serious injuries to the other dog.

Result

[37]	The appeal is dismissed.

Gordon J

16	Easthope v Auckland Council [2018] NZCA 234 at [13]–[14].
17	van Delden v Waitaki District Council, above n 14, at [76].
18	At [7].