Bauskis v Wainhouse & Ors

Bauskis v Wainhouse & Ors - [2020] NSWCA 17 - NSWCA 2020 case summary — Zoe

Brief facts

The amended statement of claim related to the seizure of a red cattle dog named "Duke" by officers of Fairfield Council from the backyard of Mr Bauskis' residential property.
The amended statement of claim made allegations of trespass to property and goods, conversion of a chattel ("Duke") and sought the return of Duke together with damages. The parties sued were Fairfield Council, two of its officers who effected the seizure of "Duke", and the State of New South Wales as the entity responsible for the police officers who attended the scene when Mr Bauskis refused the Council officers access to his property.
On 14 June 2018, the first to third respondents (Fairfield Council and two of its officers) filed a notice of motion in the proceedings below seeking the following orders: "1. The proceedings be dismissed pursuant to Rule 13.4 of the Uniform Civil Procedure Rules 2005. 2. The Statement of Claim be struck out pursuant to Rule 14.28 of the Uniform Civil Procedure Rules 2005. 3. The plaintiff pay the first, second and third defendants' costs of the Notice of Motion. 4. The plaintiff pay the first, second and third defendants' costs of the proceedings. 5. Any other order the Court sees fit."
Mr Wainhouse is the first respondent in the proceedings and is an animal control officer employed by Fairfield Council. In an affidavit before the primary judge Mr Wainhouse explained the events the subject of the proceedings as follows: 1. on the morning of 24 November 2017, Cabramatta Police contacted Fairfield City Council to report two separate dog attacks outside the applicants' property. Fairfield Council was also contacted directly by an individual; 2. Mr Wainhouse attended the property and identified himself to Mr Bauskis. Mr Bauskis refused him entry to his property and stated he did not recognise the Council as a legal entity. Mr Bauskis then contacted the police. Police officers attended the property; 3. Mr Wainhouse drew the police's attention to sections 16(1), 18(1) and (3) and, 69A of the Companion Animals Act 1998 (NSW); 4. Mr Bauskis reportedly said "[t]he Companion Animals Act is not the law and it does not apply to me"; 5. the police and Mr Dannaoui (the second respondent) "explained to Mr Bauskis the part of the legislation that [they] were empowered under and that [they would] be entering the property". Mr Wainhouse, Mr Dannaoui and "several police officers" then entered the property and seized "Duke".

[4]

Consideration

The focus of the applicant's written submissions comprised the following matters: 1. it was submitted that the case brought by the applicant in the District Court could only be determined by a jury; 2. it was submitted that there were procedural defects including the defendants not being required to "enter any pleas" such that the proceedings were to be described as a "Kangaroo Court"; 3. it was submitted that a contempt of court was committed by unidentified people in relation to the proceedings; 4. it was submitted that the District Court had no jurisdiction and could not proceed without a jury without the "clear and unequivocal consent of the parties to do so". In this regard a report of the reasons of Forbes CJ in R v the Magistrates of Sydney [1824] NSWKR 3; [1824] NSWSupC 20 and the Supreme Court Procedure Act 1900 (NSW) was relied upon; 5. a submission under the heading "QUO WARRANTO" was advanced, relying upon, variously, the restoration of Charles II in May 1660, the Constitution of the Commonwealth, the maxim "if it ain't broke, don't fix it", remarks attributed to Thomas Jefferson and Ecclesiastes 3:16.
Some, but not all of these matters were raised in Wichman v Pepper Finance Corporation Limited (No 2) [2019] NSWCA 296 and K Sheridan v Colin Biggers & Paisley [2019] NSWSC 528. Arguments of a similar kind were aptly described in the judgment of the Court of Queen's Bench of Alberta in Meads v Meads, 2012 ABQB 571, as "Organized Pseudolegal Commercial Argument".
In oral argument the applicant's principal complaint was that the primary judge had not produced written reasons for her Honour's decision such that he had not had a hearing. That complaint was raised only tangentially in the applicant's proposed notice of appeal.
For leave to appeal to be granted an application must raise a question of principle, a question of public importance, or a reasonably clear injustice that has occurred by reason of error in the judgment, going beyond what is merely arguable: The Age Company Ltd & Ors v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 at [13].
Although her Honour should have stated her reasons separately, what caused her to make the orders she made is apparent from the transcript recording the discussion that occurred in the course of the argument. Moreover, any deficiency of reasons is not of itself a basis for a grant of leave to appeal which will not be made if it is otherwise apparent that the complaining party's case is without merit. This is the position here.
As noted above, Mr Bauskis complained that his case had not been heard. To the extent that he was referring to his substantive claim, that was a necessary consequence of it being, for good reason, summarily dismissed. To the extent that he was referring to the motion for dismissal, it is clear from the transcript of the hearing before Olsson DCJ that he was given the opportunity to be heard.
The submissions made by Mr Bauskis that the District Court lacked jurisdiction are not reasonably arguable: 1. it is not correct that the case brought by the applicant in the District Court could only be determined by a jury; 2. there is no arguable error in the respondents to the application for leave to appeal not being required to "enter any pleas" in the District Court; 3. there is no arguable basis to conclude that there was any contempt of court committed; 4. there was no arguable error in the District Court failing to apply the decision of Forbes CJ in R v the Magistrates of Sydney or to apply the provisions, long repealed, of the Supreme Court Procedure Act 1900 which were relied upon; and 5. Mr Bauskis' submissions under the general heading "Quo Warranto" do not demonstrate any question of principle, a question of public importance, or a reasonably clear injustice that has occurred.
No basis for appellate review, such as an error of principle which, if uncorrected, will result in substantial injustice, has been demonstrated: Collier v Lancer (No 2) [2013] NSWCA 186 at [7]-[8]. No arguable grounds have been identified in the written and oral submissions which would justify the setting aside of the orders made by the primary judge.
There is an additional point in this case. The decision of the primary judge was made in August 2018. Leave to appeal was not sought until October 2019. The application for leave to appeal was over a year out of time: Uniform Civil Procedure Rules (NSW), r 51.10. No evidence was led by the applicant on this topic. The explanation offered from the bar table and without evidence by the applicant was that he was denied a fee waiver by the Registrar of the Court. No details of when that application was made or how it was that in October 2019 the applicant was able to file his application seeking leave were given. The gross and essentially unexplained delay is a ground for refusing an extension of time in circumstances where the underlying claim is itself subject to a requirement for leave and the argument on the substantive question does not rise above the barely arguable: see generally, Duraisamy v Sydney Trains [2019] NSWCA 269 (special leave refused [2020] HCASL 8).
Leave should be refused on each of the grounds advanced by the applicant. There is no question of principle, question of public importance, or a reasonably clear injustice raised.
Before leaving this case there is one matter, although not raised by the applicant, which warrants some consideration, namely, the proper construction of the Companion Animals Act, and in particular s 69A. Section 18 of the Companion Animals Act applies where a dog "attacks or bites any person or animal (except vermin)" otherwise than in some limited circumstances. There is no dispute that the Council was in possession of two reports that a dog meeting Duke's description had bitten people. It follows that s 69A of the Companion Animals Act was enlivened. Section 69A provides: "69A Powers of authorised officers to enter property (1) An authorised officer may, at any reasonable time, enter any property for any of the following purposes - … (2) Before entering any property under this section, an authorised officer must give the occupier of the property reasonable notice of the intention to enter the property unless - … (c) entry is made for the purposes of seizing or securing a dog under section 18, or"
Sub-section 69A(3) of the Companion Animals Act, however, provides: "(3) The powers of entry conferred by this section are not exercisable in relation to any part of premises used only for residential purposes except- (a) with the permission of the occupier of the premises, or (b) under the authority conferred by a search warrant under section 69D."
"Property" is defined in the Companion Animals Act as: "…land or premises and includes, for the purposes of Part 7A, [which encompasses s 69A] a building or structure of any description (such as a shed) or a vehicle or vessel."
Prior to the introduction of s 69A(3) in the Act, which commenced in 2006, the equivalent section (s 18) provided: "18 Dog that has attacked or bitten may be secured or seized (1) If a dog attacks or bites any person or animal (other than vermin) otherwise than in the circumstances referred to in section 16 (2), an authorised officer may, at any time within 4 hours after the attack or bite: (a) secure the dog in accordance with this section, or (b) seize the dog. (2) Any other person may seize the dog if the dog is on property owned or occupied by the person. (3) However, a dog is not to be seized under this section if the dog: (a) is adequately secured on land occupied by the dog's owner, or (b) is under the effective control of its owner or other person for the time being in charge of the dog (unless the owner or other person set on or urged the dog to attack or bite the animal concerned). (4) If an authorised officer has reason to believe that the dog is on land occupied by the dog's owner, the authorised officer may seize the dog only if the authorised officer is unable to secure the dog on that land. (5) An authorised officer may enter any land (but not premises) for the purpose of exercising the authorised officer's powers under this section. (6) This section applies whether or not any injury is caused to a person or animal by the dog's attack or bite."
The Explanatory Memorandum for the Companion Animals Amendment Bill 2005 (NSW), which introduced s 69A, relevantly provided: "Powers of entry At present under the Principal Act, authorised officers (i.e. council rangers and police officers) may enter land for the purposes of seizing animals they are authorised to seize (eg when a dog has attacked a person or animal or if the owner has failed to comply with the control requirements for a dangerous or restricted dog). Schedule 1 [107] consolidates the power of entry provisions under the Principal Act (proposed Part 7A) and clarifies the functions that authorised officers have when they enter property to seize animals or to determine whether there has been compliance with (or a contravention of) the Act or the regulations. The power to enter property is extended to cover premises, which will include any building or structure (see Schedule 1 [6]), but does not extend to any part of premises used for residential purposes except with the authority of a search warrant under proposed section 69D. Only police officers may obtain a search warrant under the proposed section. Proposed Part 7A also restates existing provisions under the Principal Act that enable authorised officers to require a person to state his or her name and address and that make it an offence to obstruct an authorised officer. The amendments made by Schedule 1 [36], [62] and [118] are consequential on the insertion of proposed Part 7A." (italics added)
On its proper construction "premises used only for residential purposes" in s 69A (3) is arguably a more limited subset of "property", the subject of the power in ss 69A (1) and (2). Without expressing a concluded view, we consider that, having regard to the statutory history and the relevant extrinsic materials, the clearly preferable construction of the term "premises used only for residential purposes" is that it is limited to a building or structure in which people (rather than animals) live and does not include the curtilage of the premises which in this case comprised the side passage and the backyard. The contrary proposition, that the "premises used only for residential purposes" in s 69A(3) included the curtilage, here the side passage and backyard, does not rise above the barely arguable. In the exercise of our discretion to grant leave we have had regard in particular to the following: 1. the fact that the only matter which may arise does not raise any issue beyond the barely arguable; 2. the applicant's gross and essentially unexplained delay; and 3. the efficient use of available judicial resources: s 57 Civil Procedure Act 2005 (NSW).
The Court orders that the application for leave to appeal be dismissed with costs.

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