This is an appeal from an Assessor in the Small Claims Division of the Local Court, brought pursuant to s 39(2) Local Court Act 2007 and is limited to an appeal based on a lack of jurisdiction or a denial of procedural fairness.
On 23 November 2020 the Assessor made an order that the plaintiff, Anthony Di Gregorio, deliver a dog, "Xena" a female American Staffordshire Terrier (the dog), to the defendant, Maral O'Hanessian, on the basis that she was the owner of the dog.
The plaintiff appeals from that decision on both of the grounds provided for by s 39(2).
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Factual background
As this is not an appeal on the merits of the decision, the facts can be stated shortly.
The plaintiff and the defendant were in a relationship and lived together in the period of sometime before December 2018 to 16 January 2020.
In or about December 2018 the plaintiff undertook searches on internet classified advertisement platforms with a view to purchasing an American Staffordshire Terrier. As a result of those searches the plaintiff entered into a series of communications with Paul Mares, a breeder from Cooma.
Later that month, the plaintiff and defendant travelled to Cooma to see the dog. An agreement was entered into for the purchase of the dog for $1,000 with the dog to be delivered after its final vaccinations were administered later in the month. The purchase price was paid in cash on that day. It was common ground that both the plaintiff and the defendant contributed to the purchase price, but it was in dispute as to whether the plaintiff paid $200 or $300.
On or about 29 December 2018, the plaintiff and the defendant travelled to a petrol station at Thornleigh to collect the dog from Mr Mares. There was a green coloured document completed on that day by the breeder. The plaintiff alleged that he signed the document as the dog's owner, but the document was not produced in evidence. The defendant alleged that she also signed that document. The plaintiff alleged that the document was in the possession of the defendant. The defendant said it had been lost in the course of moving house.
The dog thereafter resided with the parties.
In or about January 2019 the plaintiff completed an electronic form on a US website in order to be issued with a certificate that stated the dog was his support animal and was required to alleviate his symptoms of anxiety and depression. Part of the reason of obtaining the certificate was that the parties were living in a unit and they believed that the certificate would alleviate the concerns of the body corporate.
There was independent evidence to prove that the parties each contributed to veterinary bills for the dog. The plaintiff borrowed money from his aunt to pay some of these bills.
On or about 16 January 2020 the parties separated. The dog has lived with the plaintiff since that time.
After they were separated the parties exchanged a series of text messages that evidenced an acrimonious break down of their relationship.
On 17 April 2020 the plaintiff arranged for the dog to be de-sexed. The veterinary bill for this was paid for by the plaintiff's aunt.
On 17 April 2020 the defendant registered the dog with the NSW Pet Registry describing herself as the owner of the dog.
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The Assessor's decision
The decision under review was contained in the transcript of the hearing before the Court.
The Assessor decided that the defendant was the owner of the dog and thereby entitled to possession of it. To the extent that the Assessor's reasons can be ascertained from the transcript appear to be contained in the following passage:
The evidence that I actually have is the registration certificate, the evidence from the Council, the evidence of the vet expenses, the evidence of the other witnesses that say what they saw in relation to who cared for the dog…and the text messages.
So for the reasons that I have given just now to discuss the elements of ownership that I have considered and how the evidence supports [the defendant's] claim, I find that the dog should be returned.
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Grounds of appeal
The plaintiff relied on three grounds of appeal, that:
1. The Assessor exceeded her jurisdiction by deciding the matter by reference to the conduct of the parties after they separated and not by reason of who owned the dog.
2. The defendant was denied procedural fairness in that the Assessor ignored the evidence of [the plaintiff's] purchase of the dog and accepted the defendant's assertion that she was the owner of the dog and paid for its maintenance.
3. The defendant was denied procedural fairness in that the Assessor refused to accept medical evidence of [the plaintiff's] condition that he required the dog as a support animal.
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Consideration
This was an application based on the tort of detinue. The defendant sought the return of the dog and no other or alternate order. The effect of the Assessor's decision was that the defendant was the sole owner of the dog, when the evidence strongly pointed to the parties being co-owners of the dog. The appeal, however, is limited and it is not an appeal on the merits of the decision or even on a question of law.
I will deal with each of the appeal grounds in turn.
As to ground 1, it is fair to say that the Assessor considered some material that was only marginally relevant and prejudicial to the plaintiff. Having said that, the Assessor was not bound by the rules of evidence and was empowered to inform herself as she saw fit: s 35 Local Court Act 2007. On the basis of the limited reasons given, it appears that the Assessor did turn her mind and did actually decide the case on the issue of ownership. It was common ground that the Assessor had jurisdiction to determine the case relating to the dog, because it was akin to a chattel worth $1,000 and because the Local Court has the power to make orders for return of property valued at less than the jurisdictional limit. The Assessor was entitled to make an order for delivery of the dog, if she found that the defendant was the owner of it and thereby had a superior right to possession of it: Russell v Wilson (1923) 33 CLR 538 at 546. For these reasons, the first appeal ground is not made out.
As to ground 2, the plaintiff's complaint is that he had filed an affidavit before the Local Court but the defendant had not and it thereby followed that any facts relied on by the defendant was merely asserted from the bar table. Section 35 Local Court Act 2007 permits this to occur. The "evidence" of both parties was mostly based on assertion and to a large extent self-serving. None of the independent evidence was determinative of the ownership issue and the Assessor was required to, and in my view did, weigh the alternative versions and come to a decision. The defendant presented some independent evidence of her care for the dog, whereas the plaintiff understood that issue to be irrelevant. I do not read the Assessor's decision as finding that the plaintiff provided no care for the dog. The dog has been in the custody and control of the plaintiff at various times and it follows that he must have cared for it to some extent. I am not satisfied that the Assessor was biased in her approach or that she failed to allow the plaintiff to present his evidence or arguments. For these reasons, the second appeal ground is not made out.
As to ground 3, the plaintiff's complaint is that he was not permitted to rely on a medical certificate to the effect that the dog was his support animal, because he had not served it in accordance with the Court's direction for the exchange of evidence. On the other hand, the defendant had been allowed to rely on her evidence that was served late, with the defendant's consent on the prompting of the Assessor on the basis that he had already seen the documents. The medical certificate that the plaintiff sought to rely on was dated in August 2020 and was presumably obtained for the purpose of the proceedings. Bearing in mind the other evidence on this issue, it is unlikely that the medical certificate would have been determinative of this issue or the case. The medical certificate was not in the same class of documents that were consented to by the plaintiff and it was reasonable in the circumstances for the Assessor to refuse to receive it. For these reasons, the third appeal ground is not made out.
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Orders
The orders I make are as follows:
1. The appeal is dismissed.
2. I confirm the orders of the Assessor.
3. The plaintiff is to pay the defendant's costs of the appeal, as agreed or assessed.
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Decision last updated: 31 March 2021