Klewer v Coffs Harbour City Council [2003] NSWCA 349 (21 November 2003)

Last Updated: 26 November 2003

NEW SOUTH WALES COURT OF APPEAL

CITATION: Klewer v Coffs Harbour City Council [2003] NSWCA 349

FILE NUMBER(S):

40600/03

HEARING DATE(S): 21 November 2003

JUDGMENT DATE: 21/11/2003

PARTIES:

Lucy Klewer - Claimant

Coffs Harbour City Council - Opponent

JUDGMENT OF: Giles JA Hodgson JA

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): CL 11477/03

LOWER COURT JUDICIAL OFFICER: Simpson J

COUNSEL:

Claimant in person

P. O'Loughlin - Opponent

SOLICITORS:

Claimant in person

MBT Lawyers, Coffs Harbour - Opponent

CATCHWORDS:

Whether arguable ground for challenging the decision - factual findings clearly correct - if so, other bases for challenge fell away - no arguable ground.

LEGISLATION CITED:

DECISION:

Application for leave to appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40600/03

SC 11477/03

GILES JA

HODGSON JA

Friday 21 November 2003

KLEWER v COFFS HARBOUR CITY COUNCIL

Judgment

1 GILES JA: This is an application for leave to appeal from a decision of Simpson J.

2 Her Honour heard an application for an order that that the opponent be restrained from disposing of two dogs held in its council pound and that the dogs be returned to the claimant. She approached the application on the basis that it was sufficient that the claimant made out a reasonable case to be tried for the dogs being in the pound unlawfully. That turned on questions under the Companion Animals Act of seizure of the dogs in a public place and appropriate endeavours to identify their owner.

3 Her Honour found that the dogs were seized by staff on resort premises and that the resort premises were a public place. She found that the resort staff gave the dogs into the custody of a council officer for delivery to the pound. In her Honour's view, it could not be said that the resort staff were in a position to identify the owner of the dogs. Accordingly, in her Honour's view the holding of the dogs in the pound was not unlawful and there was not a reasonable case to be tried to the contrary.

4 In this application the claimant essentially challenged the seizure of the dogs. She submitted that because there was evidence from the council officer in the terms that he had "seized" the dogs, there was doubt on the matter. She said in effect that the correct view, or at the very least, an arguable view, was that the seizure had been by the council officer rather than the resort staff. If that was so, it was said, the council officer was in a position to have identified the claimant as the owner of the dogs before they were taken to the council pound. If that had been done, in accordance with the Act, the dogs would not have been impounded.

5 The question then is whether a case for leave to appeal in relation to the seizure of the dogs has been made out. The fact that, as we were told, the council officer spoke in terms of seizure, does not really matter. On the facts as recounted by her Honour, the dogs were seized by the resort staff, not by the council officer. The council officer was the conduit for their transmission to the pound, and indeed, under the Act, the council officer could not have seized the dogs when he took custody of them from the resort staff because at the time the dogs were at the home of one of the resort staff and not in a public place. I can see no possible ground on which it can be said that her Honour's finding was incorrect.

6 If that be so, then the rest of what was put to us crumbles. What we were told of the ability of the resort staff to identify the claimant as the owner of the dogs would be wholly inadequate to require them to have identified her as their owner. If the council officer did not seize the dogs, any question of his ability to identify the claimant as the owner of the dogs falls away. I am unable to see an arguable ground for challenging the judge's decision.

7 In those circumstances, in my opinion the application for leave to appeal should be dismissed with costs.

8 HODGSON JA: I agree.

9 GILES JA: That will be the order of the Court.

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LAST UPDATED: 25/11/2003