Meyers v Commissioner for Social Housing [2019] ACTCA 19

Parties: Daniel Patrick Meyers (Appellant) The Commissioner for Social Housing (First Respondent) Australian Capital Territory (Second Respondent)

Representation: Counsel J Maconachie QC with P Tierney (Appellant) V Thomas with S Richards and N Oram (Respondents)

Solicitors Ken Cush and Associates (Appellant) ACT Government Solicitors (Respondents)

File Number: ACTCA 49 of 2018

Decision under appeal: Court: ACT Supreme Court Before: Mossop J Date of Decision: 13 August 2018 Case Title: Meyers v Commissioner for Social Housing Citation: [2018] ACTSC 193 ELKAIM J

1. I have read the judgment of Charlesworth J in draft. I agree with the ultimate result proposed by her Honour and with almost the whole of her Honour’s reasons. I do not however agree with her Honour’s conclusion on the Notice of Contention.

2. My point of difference is that I do not think the second stage of her Honour’s inquiry as to the applicability of s 112 is a necessary step. In other words I am of the view that once Mr Meyers had established his standing, no more was necessary to overcome the protection provided to the second respondent by s 112.

3. Because the ultimate result remains the same, I will state my views on s 112 briefly.

4. Section 112 states:

112 When public or other authority not liable for failure to exercise regulatory functions (1) A public or other authority is not liable in a proceeding so far as the claim in the proceeding is based on the failure of the authority to exercise, or to consider exercising, a function of the authority to prohibit or regulate an activity if the authority could not have been required to exercise the function in a proceeding begun by the claimant. (2) Without limiting what is a function to regulate an activity for this section, a function to issue a licence, permit or other authority in relation to an activity, or to register or otherwise authorise a person in relation to an activity, is a function to regulate the activity.

5. Charlesworth J refers to obiter support for the appellant’s approach in Warren Shire Council v Kuehne [2012] NSWCA 81; 188 LGERA 362 (Kuehne).

6. Section 44 in the Civil Liability Act 2002 (NSW) is analogous to s 112 in the ACT Act. Similarly s 34 in the Companion Animals Act 1998 (NSW) is analogous to s 22 in the Domestic Animals Act 2000 (ACT) (Domestic Animals Act).

7. On appeal from a decision in favour of the plaintiff in the District Court of NSW (Kuehne v Warren Shire Council [2011] NSWDC 30; 180 LGERA 383), Whealy JA, with whom McColl JA agreed, said this:

8. Similarly, I would not be prepared to find that the primary judge was in error in relation to the conclusion he reached concerning s 44 of the Civil Liability Act. The primary judge dealt with this issue at 63-66. Essentially, his Honour held that the respondents would have had standing so as to bring proceedings under s 65 Supreme Court Act to obtain an order forcing the Council to issue a declaration under s 34 Companion Animals Act. At Red 66, his Honour said: "In my view Mr Kuehne, either living in Garden Avenue, or as the parent of children living there, and Dylan, as a resident of Garden Avenue, did have an interest substantially greater than the public at large. The family living in Garden Avenue would in my opinion have personally benefited from the making of an order under Section 34 to the extent that it would have potentially prevented a significant threat to their safety and, even at a lower scale, to their capacity to pursue their lives without harassment from the Wilson dogs." 149. Section 44(1) of the Civil Liability Act 2002 (NSW) is in the following terms: "When public or other authority not liable for failure to exercise regulatory functions (1) A public or other authority is not liable in proceedings for civil liability to which this Part applies to the extent that the liability is based on the failure of the authority to exercise or to consider exercising any function of the authority to prohibit or regulate an activity if the authority could not have been required to exercise the function in proceedings instituted by the plaintiff." 150. Mr Sheldon argued that the respondents had not satisfied s 44 because they could not demonstrate that any action they might have brought under s 65 Supreme Court Act would have been successful. In my opinion, s 44 is concerned with the issue of standing, rather than the issue as to whether a particular plaintiff would succeed on the merits in proceedings instituted alleging failure of an authority to exercise or to consider exercising a function to prohibit or regulate an activity. 151. In the present matter, Mr Kuehne and his family had complained to the Council about the children being chased by the Wilson dogs. If they were not satisfied with the Council's action and considered that proceedings should be taken in an endeavour to force the Council to at least consider taking action to regulate the dogs' activity, they would have been entitled to do so. The power of the Court in any such proceedings would have been sufficiently wide, even if it took the view that the Council should not be forced to act under s 34, that it might be required, nonetheless, to take action of a lesser kind, for example declaring the dogs a nuisance. 152. In any event, I consider that no error has been demonstrated in relation to the primary judge's finding on this point.

9. There is no direct equivalent to s 65 of the Supreme Court Act 1970 (NSW) in the ACT. I do not however think that jurisdiction is the issue. The issue is whether or not s 112 is concerned with more than just standing. Does it also require a conclusion that a court could not have compelled the second respondent to make a declaration under s 22(2)? If this declaration was not made then, in turn, the dogs could not have been seized under s 57(b) of the Domestic Animals Act.

10. Whealy JA at [150] in Kuehne thought s 44 was concerned with standing only and did not require a resolution of “the issue as to whether a particular plaintiff would succeed on the merits in proceedings….”.

11. Whealy JA did not deal with the matter in any more detail than set out above, no doubt because the appeal had been decided on a separate question. Nevertheless I am of the view that his Honour’s approach was correct.

12. In Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493 at 511, Aickin J said this:

In my view the authorities to which I have referred above establish that it is an essential requirement for locus standi that it must be related to the relief claimed. The 'interest' of a plaintiff in the subject matter of an action must be such as to warrant the grant of the relief claimed. I do not mean that, where the relief is discretionary, locus standi depends on showing that the discretion must be exercised favourably. What is required is that the plaintiff's interest should be one related to the relief claimed.

12. As already noted, Charlesworth J found that the appellant had standing to bring proceedings against the second respondent, but this standing did not negate the effect of s 112 because no relief would have been available to him under those proceedings.

13. But what, for example, would have been the position if the appellant commenced the proceedings seeking no more than a declaration. A declaration would have been available to the appellant in the proceedings to the effect that the second respondent ought to exercise its discretion under s 22(1) of the Domestic Animals Act.

14. The declaration I am envisaging, perhaps somewhat theoretically, would not be a declaration compelling the making of a declaration under s 22(2), but rather a declaration that, for example, the circumstances facing the appellant were such that a declaration ought to be considered under s 22(2).

15. This process involves a declaration of fact and could arise in this way. If the registrar disputed the circumstances surrounding the complaint from the appellant, for example suggesting there had been no attack, then the appellant could seek a declaration of the facts with the intended result that the registrar would then be compelled to exercise, one way or the other, the discretion under s 22(2).

16. There might be occasions when a court will refuse to make a declaration about a fact, as in Myer Queenstown Garden Plaza Pty Ltd v City of Port Adelaide & Anor (1975) 11 SASR 504. In this matter, Wells J in the Supreme Court of South Australia, said at 106:

In the present case, however, I am of the opinion that I am not so bound. The declaration is, in the final analysis, a discretionary remedy; and before a judge makes a declaration he should first be satisfied (inter alia) that the material upon which he is being asked to base it is safe and sound material for that purpose. I am very far from being so satisfied.

17. It is unlikely that any such conclusion would have been reached in the current case.

18. There is no reason why an Australian Court will not otherwise make a declaration of fact, (Southern Union Insurance Co of Australia v Altinier [1969] 2 NSWR 333 and PW nd Young QC. Declaratory Orders (Butterworths, Sydney, 1984) 2 Ed at [602]).

19. In my view the facts of this case would have fallen within the compass of r 2900 of the Court Procedures Rules 2006 (ACT) and within the often adopted guidelines as set out in the just mentioned text at [202]:

20. The proceeding must involve a “right”; 2. There must exist a controversy between the parties; 3. The proceeding must be brought by a person who has a proper or tangible interest in obtaining the order, which is usually referred to as “standing” or “locus standi”; 4. The controversy must be subject to the court’s jurisdiction both within the court’s own character and also within the jurisdiction so far as private international law rules are concerned; 5. The defendant must be a person having a proper or tangible interest in opposing the plaintiff’s claim; 6. The issue must be ripe. It must not be merely of academic interest, hypothetical or one whose resolution would be of no practical utility.

21. In Australian Conservation Foundation, at [13], Gibbs J (as he then was) observed that the “rules as to standing are the same whether the plaintiff seeks a declaration or an injunction”.

22. My point is simply this: once standing has been established then it is not necessary to conclude that any specific remedy compelling action by the respondent (ultimately the seizure of the dogs) would flow from any proceedings brought. Therefore the word “required” in s 112(1) does not dictate the retention of the immunity where the person bringing the proceedings has the standing to commence the proceedings.

23. Looked at in the context of the scenario I have posed above (at [15]), if the word “required” is to play a determinative part, it is enough that the registrar is compelled to exercise the discretion even if the discretion is exercised against a finding that the dog is dangerous. This of course assumes the result of the proceedings was a declaration, by the court, that the base facts necessary under s 22(2) to trigger the exercise of the registrar’s discretion, had been established.

24. It follows that I would have dismissed the Notice of Contention.

25. Because I agree with Charlesworth J that no duty of care was owed by the second respondent and also agree with all of her Honour’s other findings concerning the first respondent, it follows that I agree with the orders proposed by her Honour.

I certify that the preceding twenty-four [24] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim

Associate:

Date:

LOUKAS-KARLSSON J

25. I agree with Charlesworth J.

I certify that the preceding paragraph is a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson

Associate:

Date:

CHARLESWORTH J

INTRODUCTION

26. On 15 March 2016, the appellant, Daniel Meyers was seriously injured when he was mauled by two pit bull terriers in the Canberra suburb of Spence. He sued certain public authorities of the Australian Capital Territory in negligence.

27. The case at trial was that the authorities had negligently failed to exercise contractual or statutory powers that, if properly exercised, would have resulted in the dogs being seized and impounded after they had attacked another man two months earlier.

28. The primary judge concluded that the duty of care owed by the first respondent as an “occupier” of the land on which the attack occurred had not been breached. His Honour found that the second respondent (so far as it included authorities having statutory powers to seize the dogs) did not owe a duty of care to Mr Meyers: Meyers v Commissioner for Social Housing [2018] ACTSC 193 (Meyers).

29. The primary judge went on to conclude that even if a duty of care did exist, it had not been breached on the facts and that any such breach would not in any event have been causative of Mr Meyers’ serious physical injuries.

30. The primary judge made obiter remarks to the effect that the second respondent’s liability was excluded under s 112 of the Civil Law (Wrongs) Act 2002 (ACT) (Wrongs Act) in any event, although he preferred to express no concluded view on that question.

31. The law of negligence in this country has its modern foundations in what Lord Atkin said in Donoghue v Stevenson [1932] AC 562. In a less often quoted passage, his Lordship said (at 580):

The liability for negligence … is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay. But acts or omissions which any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by them to demand relief. In this way rules of law arise which limit the range of complainants and the extent of their remedy.

32. This case is one in which the “public sentiment” to which Lord Atkin referred appears to be particularly strong. Mr Meyers was seriously injured in an attack that was clearly preventable. The dogs, to the knowledge of the authorities, were not controlled by their owners. Both dogs had charged at another person at the same place about two months prior in an incident that could have resulted in serious injury or death had the victim of that attack not been able to escape. The details of the prior attack had been promptly made known to the authorities and the responsible officers had been repeatedly urged, in the strongest possible terms, to take action. The public servants employed by the authorities were reluctant to attend at the premises without police assistance because of the threat to their own safety presented by the dogs and their owners. One of the authorities was equipped with specific statutory powers to deal with the very risk presented by the dogs, including by seizing and impounding them. The persons in the immediate vicinity of the dogs could not lawfully impound or destroy the dogs, and so relied upon the proper exercise of the authority’s statutory powers to address the risk. On 15 March 2016, the risk materialised, resulting in Mr Meyers suffering serious injuries which necessitated (among other things) the amputation of a finger.

33. The existence of a duty of care does not turn upon a discretionary judicial determination of whether it is fair, just and reasonable that the law should impose it: Sullivan v Moody [2001] HCA 59; 207 CLR 562 (Sullivan) at [49], [53] (Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ); see also Perre v Apand Pty Ltd [1999] HCA 36; 198 CLR 180 at [9] (Gleeson CJ), [77] – [82] (McHugh J). Nor does resolution of the appeal turn upon natural feelings of sympathy for Mr Meyers, nor is the case to be assessed with the wisdom of hindsight: Kuehne at [186] (Sackville AJA). As the High Court said in Sullivan at [49]:

… There are policies at work in the law which can be identified and applied to novel problems, but the law of tort develops by reference to principles, which must be capable of general application, not discretionary decision-making in individual cases.

34. The policies at work on this appeal include those underpinning Ch 8 of the Wrongs Act. As explained elsewhere in these reasons, the provisions contained in Ch 8, including s 112, are intended to limit the circumstances in which a public authority will be liable in negligence. By its Notice of Contention the second respondent alleged that s 112 operates to exclude its liability. For the reasons that follow the Notice of Contention should be upheld and the appeal dismissed against the second respondent on that basis.

35. I have concluded that the primary judge did not err in determining that the duty of care owed by the first respondent as occupier of the land was not breached. The primary judge did not otherwise err by dismissing the alternate claim against the first respondent founded in a breach of contract, nor by misapprehending the nature of the case run at trial.

36. The grounds of appeal are summarised at [108] – [114] of these reasons. None of the grounds is established. It follows that the appeal must be dismissed.

FACTS

37. What follows is a narrative of facts consistent with the findings of the primary judge. No basis has been shown to disturb those findings on the appeal. Additional facts included in this narrative are drawn from the evidence to which the parties referred on the appeal and are not otherwise contentious.

Warrock Court

38. At the time of the attack, Mr Meyers was a resident of a public housing complex named Warrock Court in Spence. The complex comprised four double storey buildings spread across the site, each of which contained four units. The buildings were surrounded by common areas, including stairwells between the upper and lower units.

39. Mr Meyers lived in unit 12, an upstairs unit in one of the buildings. The tenant in unit 11 (the other upstairs unit in that building) was Mr Michael Rezo. From at least December 2015, Mr Rezo permitted two other persons to reside with him in unit 11, Mr Alan Matas and Ms Jodie Skinner. Downstairs in the same building, Ms Kim Lahiff resided in unit 9 and Ms Roberta Manley resided in unit 10. Ms Lahiff’s father, Mr Michael Lahiff, often visited her in unit 9 but did not reside there.

40. Each of the residents of Warrock Court occupied their respective units pursuant to a tenancy agreement with the first respondent, the Commissioner for Social Housing. The terms of the agreements were relevantly the same with respect to each tenant.

41. Mr Matas and Ms Skinner did not have a tenancy agreement and otherwise had no legal entitlement to reside in unit 11 with Mr Rezo. Mr Matas and Ms Skinner brought with them the two dogs who attacked Mr Meyers. They may be regarded as the “carers” of the dogs within the meaning of the Domestic Animals Act 2000 (ACT), if not within the ordinary sense of the word. The dogs were not registered and so did not have a “keeper” for the purposes of the Domestic Animals Act.

The Commissioner and delegates

42. The Commissioner (although an individual) is constituted as a statutory corporation having functions conferred by the Housing Assistance Act 2007 (ACT). The Commissioner’s functions include the administration, on behalf of the Territory, of programs and funding arrangements for the delivery of housing assistance in the Territory by way of (among other things) public rental housing and community housing: Housing Assistance Act, s 11. The Commissioner does not have the power to employ staff on a contract of employment: Housing Assistance Act s 12. The Commissioner otherwise has all of the powers of a natural person: Housing Assistance Act s 10.

43. Some of the Commissioner’s functions are delegated to public servants employed in Housing ACT, a subunit of the Community Services Directorate.

44. Ms Jayne Diehm was a public servant employed within Housing ACT. She had responsibilities for about 288 tenancies, including some of the tenants residing at Warrock Court. Ms Diehm was answerable to Ms Llewella Grillo, a regional manager for an area including Spence.

45. The Commissioner was the lessor on a tenancy agreement dated 17 September 2010 naming Mr Meyers as lessee in respect of unit 12 at Warrock Court. The lease was subject to the Residential Tenancies Act 1997 (ACT). Clause 52 of the lease provided:

The lessor must not cause or permit any interference with the reasonable peace, comfort or privacy of the tenant in the use by the tenant of the premises.

46. The lease incorporated “Rules of the Complex”, one of which prohibited the keeping of pets without the written permission of the Commissioner.

Domestic Animal Services

47. Mr Jason Ritzen was a person appointed as an “authorised person” with powers under the Domestic Animals Act, including the power to seize and impound a dog in certain circumstances. He worked in an administrative unit known as the Domestic Animals Services (DAS). Ms Farrell was the registrar appointed under the Domestic Animals Act. She too had all of the powers of an authorised person, together with additional powers such as the power to declare a dog to be a “dangerous dog” for the purposes of that Act. The provisions of the Domestic Animals Act are summarised elsewhere in these reasons.

Nuisance complaints

48. In early December 2015, Ms Manley contacted Canberra Connect, a call centre by which residents in the Territory may engage the services of government agencies. She expressed concern about excessive barking coming from unit 11. She was told to document the barking over a 14 day period. Ms Manley did not pursue that particular complaint any further, although she did, on 13 December 2015, make a written complaint by email about the behaviour of the dogs to a housing manager within Housing ACT, Ms Singh. The complaint was to the effect that the dogs barked incessantly, including from the balcony of unit 11. She complained that Mr Rezo did not tell the dogs to stop and had otherwise encouraged their behaviour. She said that she had called the police three times about Mr Rezo. She said “all I want is a quiet life and if it wasn’t for him it would be”.

49. Ms Diehm attended the property on 22 December 2015 in response to Ms Manley’s complaint. The dogs were there on that day. She noted that the barking was “very loud and incessant”. Mr Rezo told Ms Diehm that he was minding the dogs and that they would be gone in four or five days. Ms Diehm told Mr Rezo that the dogs were not suitable to the property and that it was contrary to the tenancy agreement to keep dogs there. She told him the dogs must be removed.

50. Ms Diehm followed up her conversation with a letter. She identified those clauses of Mr Rezo’s lease which provided that he must not cause or permit a nuisance or interfere with the quiet enjoyment of the occupiers of nearby premises. She stated again that Mr Rezo was in breach of the lease. She confirmed “our agreement that the dogs will be removed from the property no later than 27 December 2015”. She stated that if further complaints were received, Mr Rezo’s tenancy “may be referred through to the ACT Civil and Administrative Tribunal”. Ms Diehm sent a further letter to Ms Manley reporting on the action she had taken. An internal document later prepared by Ms Grillo indicated that there was sufficient information to suggest that Ms Manley’s complaint about the dogs was justified.

51. Ms Diehm had planned to visit the complex on 5 January 2016 but did not do so because she was told by a tenant that the dogs were not there on that day. On 7 January 2016, Ms Diehm was told by one of the tenants that the dogs had returned. She resolved to visit the complex the following day. In the meantime, Ms Diehm made four unsuccessful attempts to contact Mr Rezo about the dogs.

Attack on Mr Lahiff

52. On the morning of 8 January 2016, before Ms Diehm could conduct her planned visit, Mr Lahiff arrived at the complex to visit his daughter in unit 9. As he knocked on her door, the two dogs ran down the external stair well. They both charged at Mr Lahiff barking ferociously at him. Mr Lahiff kicked the first dog in the head. It retreated to the bottom of the stairs. When the second dog came at him, he kicked it in the head too. Mr Lahiff was able to escape when Ms Lahiff opened her door and he retreated into her unit. Had Mr Lahiff not responded so forcefully and had he not had the means of escape into unit 9, he would have been mauled and seriously injured by the dogs.

53. A good deal of evidence was given at the trial as to whether this incident was properly to be characterised as the dogs “harassing” Mr Lahiff rather than “attacking” him within the meaning of those concepts in the Domestic Animals Act. For the purposes of what follows the incident will be referred to as an attack, for that is what it was in the ordinary sense of the word, notwithstanding that Mr Lahiff did not suffer any serious physical injury as a result of it.

Response of the authorities

54. Understandably, the primary judge held, Mr Lahiff was badly shaken, upset and angry by what had occurred. From his daughter’s unit, Mr Lahiff made a series of calls in an attempt to have the danger posed by the dogs addressed by the authorities. He first called the Australian Federal Police (AFP). The AFP told Mr Lahiff to contact Canberra Connect, which he did. He gave details of the incident to an operator. The operator attempted to contact DAS by sending an electronic “smart form” requesting assistance. Mr Lahiff waited for an hour but he heard nothing from DAS. He contacted Canberra Connect again, reinforced the serious nature of the incident and asked for a direct number for DAS. He then telephoned DAS directly and had a discussion with Mr Ritzen. He explained the circumstances of the attack. He said it was very serious.

55. The findings of the primary judge support an inference that DAS was hopelessly understaffed on that day. Although six ranger “positions” had been rostered to work, two of the positions were “vacant”. Of the four remaining rangers, one was sick and two were on leave. That left Mr Ritzen to perform the functions conferred on the rangers within DAS. His duties required him to serve at the counter of the DAS pound, answer calls and email enquiries, man the cash register, sell dogs, collect stray animals and investigate allegations of dogs harassing or attacking people or other animals across the Territory.

56. At trial, Mr Ritzen confirmed that he considered Mr Lahifff to be a person of truth in relation to the incident. His written record of his telephone conversation with him confirms that Mr Lahiff had complained of being attacked by two dogs which had come out of unit 11 and that he had fought them off. On a standard form, Mr Ritzen noted, under the heading “Action Required”: SPEAK WITH OWNERS ABOUT CONTAINING THEIR DOGS. NO DOGS REGISTERED AT PROPERTY.

57. The words said by Mr Ritzen to Mr Lahiff during the telephone call were the subject of contested evidence at trial. At the very least it can be said that Mr Ritzen did not give Mr Lahiff any assurance that immediate action would be taken to remove the dogs from Warrock Court. Mr Ritzen otherwise told Mr Lahiff that he should contact Housing ACT. Mr Lahiff contacted Housing ACT and had a conversation with Ms Diehm. He described the attack as “vicious”. He said he was fearful and that action needed to be taken. Ms Diehm told Mr Lahiff that nobody from Housing ACT could come out until the “dog control people” had been. Mr Lahiff expressed amazement at the situation.

58. Ms Diehm then contacted Canberra Connect to request assistance to remove the dogs so that she could attend the premises. Canberra Connect’s record of the conversation confirmed that a representative of Housing ACT “needs dogs removed before she can attend”. It goes on to say “Housing ACT have already asked for these dogs to be removed”. The latter statement may be understood as referring to Ms Diehm’s letter to Mr Rezo requiring the removal of the dogs in late December.

59. After his conversation with Ms Diehm, Mr Lahiff contacted the AFP again. He said he was fearful of another attack. Mr Lahiff was told that the police could not come and that it was a matter that should be addressed by Housing ACT.

60. In a conversation between Mr Ritzen and Ms Diehm on the same day, Mr Ritzen told Ms Diehm he would be issuing a “warning notice”. He otherwise said that Housing ACT should take the steps available to them under the lease to have the dogs removed. Mr Ritzen said this without having any understanding of the content of the lease or the steps that would be required under the Residential Tenancies Act to effect the removal of Mr Rezo and his unauthorised visitors from the complex.

61. Mr Ritzen and Ms Diehm agreed that Mr Ritzen would prepare the warning notice, that Ms Diehm would collect it from him and that she would then deliver it to Mr Rezo’s letterbox.

62. The issue of a warning is a process for which no express provision is made in the Domestic Animals Act. It appears to be associated with a procedure adopted within DAS by which allegations of contraventions of the Domestic Animals Act are dealt with and resources allocated. More will be said of that procedure elsewhere in these reasons.

63. The warning notice was in a standard form with provision made for the sender to identify, by marking alternatives, the allegations forming the subject of the warning. It commenced with the words “Domestic Animal Services has responded to a complaint concerning a dog allegedly kept by you (and or) in your care”.

64. The warning addressed to Mr Rezo alleged two infringements. The first was that dogs believed to reside at his premises may not be registered. The third allegation commences with these standard form (and curious) words:

That the dog has allegedly breached the Domestic Animals Act in:

65. Under these words Mr Ritzen has inserted, in handwriting, “… Dog harass person/animal when not with keeper/carer”. The standard form warning goes on to state: You are required to take appropriate immediate action to ensure on-going compliance with the Domestic Animals Act 2000. Please note that infringements may be issued if you have received a previous warning. This warning notice will be noted on the Domestic Animal Services database.

66. The notice does not specify the “appropriate immediate action” Mr Rezo was required to take in relation to the allegation that the dogs had already “harassed” a person.

67. It is clear that the issue of the warning notice was not intended by Mr Ritzen to provide an immediate solution to the predicament then faced by Mr Lahiff. Indeed, by mid-afternoon, Mr Lahiff remained in his daughter’s unit, fearful that he would be attacked again if he left. Not having received any assurance about any immediate action that might be taken, Mr Lahiff sent an urgent email to Mr Simon Corbell, the Deputy Chief Minister, Australian Capital Territory Attorney-General, Minister for Health, Minister for the Environment and Minister for Capital Metro. The email states:

Dear Minister I’m writing to ask if you could intervene in a dangerous situation regarding savage dogs. I went to my daughter’s flat this morning at 09:40 and was attacked by two dogs which had come out of flat 11, 25 O’Neill St Spence ACT. After fighting them off I rang the police who said they would not deal with dogs and to get in touch with Canberra Connect. I contacted Canberra Connect at 09:46 and made a full report which they passed on to Dog Control. At 11:00 Canberra Connect advised they had been unable to connect with Dog Control. At 11:11 I contacted Dog Control direct who advised that they would look into the matter. [Later] I spoke to ACT Housing who advised they had been in touch with Dog Control also and that Dog Control could not respond. ACT Housing also were unable to visit the flat in question until Dog Control had attended. I reported the situation to the AFP again at 12:05 and explained to them the dangerous situation. They said they had no powers to enter premises to apprehend dangerous dogs. The situation as I write is that at least 2 people are unable to come out of their flats (numbers 9 and 10) due to fearing attack from the dogs. Could you please intervene in this situation and request police attendance.

68. This email was forwarded down a bureaucratic chain until it reached the Manager of Ranger Services, Ms Cawthorne. Ms Cawthorne discussed the matter with Mr Ritzen and then prepared an email response which was forwarded back up the chain.

69. Ms Cawthorne’s response provides more insight into the earlier exchanges that had occurred between Mr Rizten and Mr Lahiff and between Mr Rizten and Ms Diehm. It states:

A smart form was also received from Housing at 10:32 requesting assistance from DAS to remove the dogs from the premises so the officer could attend the premises. The ranger advised the Housing officer that DAS are not authorised to remove dogs from private premises (includes stairwell and curtilage) and that he would issue a formal warning to the owner of the dog under section 49A of the Domestic Animals Act 2000 (harass). He has done so. He gave a warning to an officer from ACT Housing who was going to deliver it along with notices from that agency. The ranger advised the officer from ACT Housing to obtain a warrant for the removal of the dogs (which are allegedly in breach of tenancy agreement). The complainant has been advised that he can attend DAS and make a formal witness statement regarding the incident.

70. This response was copied to Ms Flannery, the person appointed as the registrar under the Domestic Animals Act. Ms Flannery sent a response to Ms Cawthorne stating:

Thanks. Please do not provide this information to the media. There is already a matter before the court regarding a serious dog attack in a community housing facility. We need to follow up with Housing and legal.

71. There is no suggestion in this email that Ms Flannery was otherwise intent on exercising any power conferred upon her in her capacity as registrar to address the immediate threat presented by the dogs to the residents of Warrock Court. To the extent that the email expressed any concerns, it appears that the immediate concern was that the media might become aware of the situation.

72. It appears that the Ministerial communication nonetheless prompted Ms Cawthorne to discuss the situation with Mr Ritzen. Between them they agreed that Mr Ritzen would attend at Warrock Court in the company of an AFP officer after he had closed the pound for the day. This plan was conveyed to the registrar, Ms Flannery and ultimately to the Minister’s office. A representative of the Minister emailed Mr Lahiff to say that she understood that action had been taken and “a representative from Territory and Municipal Services has or will be in touch soon”. Mr Lahiff heard from no other government representative that afternoon or evening.

73. In his reasons for judgment the primary judge considered the contested question of what Mr Ritzen had said to Mr Lahiff on 8 January with respect to the exercise of his powers. The judge concluded that Mr Ritzen had adopted a usual practice of questioning a complainant about such things as where and when the attack had occurred, how many dogs were involved and whether the complainant had been bitten or otherwise injured. Mr Ritzen had, the primary judge said, characterised the incident as constituting harassment rather than attack and that he had, for that reason, told Mr Lahiff that he could not respond at that time but would look into the matter. Mr Ritzen told Mr Lahiff that Mr Lahiff could, if he wished, give a written statement about the incident. Mr Ritzen did not explain to Mr Lahiff the significance he would place (rightly or wrongly) on the provision of a written statement in terms of his discretion to exercise his powers of seizure under the Domestic Animals Act. The primary judge found that although Mr Ritzen referred to the provision of a written statement in his conversation with Mr Lahiff, “he did not do so in a manner that indicated to Mr Lahiff that the availability of such a statement was of critical importance in terms of taking further steps to control the dogs involved in the 8 January incident”: Meyers [29].

74. The characterisation by Mr Ritzen of the incident as being “harassment” rather than an “attack” informed Mr Ritzen’s later assumptions as to what he could or should do about the dogs. Had Mr Ritzen characterised the incident as an attack, it appears that the usual course identified in DAS internal policy documents would have been to seize the dogs until an investigation into the incident was complete although, as will be seen, the powers of seizure are not unconfined.

75. In a file note summarising the events, Ms Diehm recorded numerous unsuccessful attempts she had made to contact Mr Rezo by telephone both before and after the attack on Mr Lahiff. Her note records: HM [Housing Manager] will continue to monitor the situation. HM will attend the property once the dogs are no longer a threat. HM will call neighbours to check on their safety. HM will complete NTR [Notice to Remedy]

76. Clearly Ms Diehm had formed the view that the dogs would be a threat to her own safety should she attend at Warrock Court.

77. Mr Ritzen attended Warrock Court in the company of an AFP officer in the early evening of 8 January 2016. He carried a catching pole and walked loudly up the stairs. He banged loudly on the screen door to provoke a response from any dogs that might be on the premises. He did not hear any signs of the dogs. He left a note at unit 11 for the occupier to “call the pound ASAP”.

78. Mr Ritzen did not speak to Mr Lahiff again until 9 January 2016, after Mr Lahiff complained that he had heard nothing in relation to the incident. Mr Ritzen gave Mr Lahiff his direct telephone number for the purpose of enabling Mr Lahiff to report if the dogs had returned. This Court was not taken to evidence suggesting that Mr Lahiff had contacted Mr Ritzen’s direct number to report the presence of the dogs on the premises at any particular date after being provided with the number.

Notice to Remedy

79. On 11 January 2016, Ms Diehm prepared a notice to remedy addressed to Mr Rezo alleging a breach of the prescribed terms of Mr Rezo’s lease. The notice gave Mr Rezo 14 days to remedy the breach by removing the dogs from his property.

80. On the morning of 13 January 2016, Ms Lahiff contacted Canberra Connect to say that the dogs had returned to the complex. She said they had not attacked or harassed any person at the time of the call. Mr Ritzen attended at the complex later that day in the company of a second ranger, but found nobody home and no dogs at unit 11. He had a conversation with Ms Lahiff about the extent of his powers, the content of which was contested. The primary judge found that the conversation was to the effect recorded in an email report prepared by the second ranger, namely:

We explained to the 3 neighbours that normally with dogs harassing we would talk to the owner and give warning and explain legislation that they must have effective control of dogs whilst in public (dogs on lead).

81. The email report goes on to confirm that the rangers had been provided a copy of Housing ACT’s letter to Ms Manley which records that Mr Rezo had been required to remove the dogs by 27 December 2015.

82. Ms Diehm became aware on 21 January 2016 that the dogs continued to reside at the property. Two days prior, Ms Diehm had obtained information to the effect that Mr Matas had been evicted from another property at which drugs, firearms and other weapons had been found. Ms Diehm had intended to visit Warrock Court that day, but after raising this information with Ms Grillo it was determined that Housing ACT staff should not attend without police assistance.

83. On 9 February 2016, Ms Manley again contacted Housing ACT about the dogs. She was in a distressed state. Housing ACT told Ms Manly to “engage with DAS”.

84. Ms Manley left a telephone message with Ms Diehm on 15 February 2016. She sent an email on the same day but it had no content when received by Ms Diehm. Ms Lahiff also contacted Ms Diehm. At Ms Diehm’s request, she forwarded Ms Manley’s email. The primary judge described and commented upon the email in the following terms:

85. … The email contained a complaint about the occupants of unit 11. It appears that the email had been sent earlier to Ms Manley in draft form and then sent in an amended draft form to Ms Diehm. That complaint raised a number of matters about the young couple who were living with Mr Rezo in unit 11 (that is, Mr Matas and Ms Skinner). Ms Lahiff identified the young couple as Alan and a young lady whose name she did not know. The email included: They own two pitbull-cross dogs named Noah [sic] and Diesel. Number 11 is a one-bedroom unit with a very small veranda to the back of the property. While they have been living here the dogs bark often when someone makes a noise like opening their front or back door or someone is in their yard. The owners (young couple) let their dogs out of the property to roam the complex without a lead. The man and lady usually yell at the dogs to come back to them while they are outside. The young couple frequently argue between themselves and the girl often opens their door and slammed it shut and walks or runs to the carport. I have heard the young man Alan say to her “You will do what I say”. I have been informed that the police have been out to them at least twice for domestic abuse calls since moving into no 11. 103. The email then proceeded to describe a series of events: a) an apparent theft of a parcel that was being delivered to Ms Lahiff; b) the dumping of glass in her yard near her gate; c) dogs urinating from the balcony above; d) the attack on Mr Lahiff in relation to which the email said ‘This has been reported to you. Also on this day my courtyard concrete was covered in dog urine again.’ e) Mr Matas entering her back yard, climbing onto the fence and then up onto the balcony of number 11 then smashing a window to get in. f) The carport being full of furniture and rubbish; g) The installation of a camera pointing at the stairs from the bedroom to number 11. 104. The request was ‘Please deal with these people and their dogs ASAP’. What is notable about this email of complaint is that it covers a wide range of matters and does not emphasise the threat posed by the dogs. Rather it focuses upon both the dogs and the undesirable conduct of their owners.

86. On appeal this Court was not taken to any evidence that would support an inference that this email was ever sent to Mr Ritzen.

87. On 16 February 2016, Ms Diehm sent an email to Mr Ritzen and followed up with a discussion. The email stated:

I came into your office on 8/1/2016 in regards to the dogs at the above address. We will need you to meet us at the property but we will need to arrange it at a time that is suitable for you and also tee it up with ACT Policing. So let me know when suits you. Secondly what are your powers in regards to the dogs? Are you able to take them or anything? I will wait to hear from you. Thanks Jason.

87. There was then a discussion about the powers available to Mr Ritzen. Mr Ritzen said that a warrant would be required to enter unit 11 to seize the dogs. He was pessimistic about the prospects of obtaining a warrant. Mr Ritzen said that whilst he could assist Ms Diehm to conduct a property inspection by “securing” the dogs, they could not be seized and removed without a warrant. Mr Ritzen’s references to a warrant are to be understood as a warrant issued by a Magistrate pursuant to s 129 of the Domestic Animals Act. In her evidence, Ms Diehm said that she felt frustrated at the end of the discussion.

88. Whatever Mr Ritzen’s understanding of his powers, it is clear that as at 16 February 2016, Housing ACT wanted the dogs removed from the complex. Furthermore there was no basis for Mr Ritzen to believe that the dogs did not pose a threat to the residents of Warrock Court. By that date, Mr Ritzen was aware that his own warning notice to Mr Rezo with respect to the registration of the dogs had been ignored, and that Housing ACT’s demands of Mr Rezo that the dogs be removed had not been complied with. His offer to “secure” the dogs so that Ms Diehm could inspect the property evidences his knowledge, as at 16 February 2016, that the dogs were at that time present at Warrock Court.

89. On the same day, Mr Meyers telephoned Ms Diehm. He was upset and angry. He requested the “instant eviction” of Mr Rezo and his visitors and said that “he would take matters into his own hands”. He said that “he was going to consumer affairs and the media”. This prompted Ms Diehm to contact her regional manager who in turn contacted AFP Communications about Mr Meyers’ call. A note of that communication suggests that the manager’s concern was not so much with the danger presented by the dogs, but with Mr Meyers’ stated intention to take matters into his own hands.

90. Ms Diehm received another call from “one of the neighbours” on the following day. She reported this to Ms Grillo in an email in which she said:

I know this is a pain and there is so many other tenants but I have had the neighbour on the phone saying the dogs get left tied up at the bottom of the stairs making access difficult… Just another thing to add to the growing list… Do we have a game plan yet?

91. Ms Diehm then embarked on a course by which Mr Rezo might be financially pressured to remove his unauthorised visitors from unit 11. She wrote to Mr Rezo alleging that Mr Matas and Ms Skinner were residing in the unit. She required Mr Rezo to complete a rental rebate application to have his rebate entitlements reassessed. If he did not make such an application, the result may be the cancellation of his rebate and the deduction of full rent from his social security payments. To this date Mr Rezo had not responded to Ms Diehm’s attempts to contact him by telephone. He did, however contact Ms Diehm in response to this letter and made an appointment to attend at her office. He did not keep that appointment.

92. There were no further complaints about the dogs at the property for a further 14 days.

93. On 14 March 2016, Ms Manley wrote a strongly worded email concerning Housing ACT’s inaction concerning the “squatters” in unit 11. She reported that tenants in the complex were considering leaving their homes. She described the situation as disgusting and wrong.

94. On the morning of 15 March 2016, Ms Diehm attempted to telephone Mr Rezo. There was no answer. She left a message. The attack on Mr Meyers

95. Later on the morning of 15 March 2016, Mr Meyers came out of his unit to go for a walk. When he reached the bottom of the stairs, one of the dogs was there. It was off its leash and barking. Mr Meyers went to a friend’s house. When he returned, the dog attacked him, biting his left hand. He tried unsuccessfully to fend it off, but the dog bit his other hand.

96. Mr Meyers fell to the ground. He thought he was going to die and called out. Two occupants emerged from unit 11, together with the other dog. The other dog joined in the attack on Mr Meyers, biting him on the shoulder. Mr Matas tried to get the dogs away by hitting them with sticks. Mr Meyers swung his arms to dislodge the dogs. He was able to escape into Ms Lahiff’s unit.

97. Police who attended at the complex described Mr Meyers as having serious injuries to both arms and hands. He had blood on his face and neck, an apparent injury to his left ear and appeared to be in significant pain. The police report states that one of the dogs had been seized from the complex with the assistance of the police later that same morning and that the second dog had been seized, also with the assistance of the police, on the following day.

98. By 18 March 2016, each of the dogs had been declared “dangerous dogs” under the Domestic Animals Act.

99. In the weeks that followed, Housing ACT commenced proceedings in the Australian Capital Territory Civil and Administrative Tribunal (ACAT) seeking the eviction of Mr Rezo under s 48 of the Residential Tenancies Act. That process was resisted by Mr Rezo who was forcibly evicted from unit 11, pursuant to a warrant, on 21 April 2016.

THE NAMED RESPONDENTS

100. Before turning to the grounds of appeal, some observations should be made about the identification of the parties joined as defendants in the proceedings at first instance.

101. Mr Meyers did not bring any claim for damages against Mr Rezo, Mr Matas or Ms Skinner, nor were they joined as defendants in third party proceedings.

102. The two named defendants at first instance were the “Commissioner for Social Housing” as the first defendant and the “Australian Capital Territory” as the second defendant. They are, respectively, the first and second respondents on the appeal.

103. As a statutory corporation exercising public functions, the Commissioner is to be regarded as an instrumentality of the Crown in right of the Territory for the purposes of the Court Procedures Act 2004 (ACT). A proceeding may be brought against the Crown in the same way as a proceeding between subjects: Court Procedures Act, s 21(1). A proceeding may be brought against the Crown under the name “Australian Capital Territory”. The “Commissioner for Social Housing” was nonetheless named separately as the first defendant in the proceedings at first instance and remains named in that fashion as the first respondent to this appeal.

104. The Territory is joined as the second defendant on the pleaded basis that it “maintained” a directorate for social housing in the Territory (defined as the Housing Authority) and a directorate known as Transport Canberra and City Services (defined as the Animal Authority). By [4A] of his Further Amended Statement of Claim (FASC), Mr Meyers alleged: The second defendant is vicariously liable for the acts and omissions of the Director- General of the Animal Authority, the Registrar of Domestic Animal Services, authorised persons holding that authority under the [Domestic] Animals Act and officials working in the Animal Authority and references in this Statement of Claim to ‘the second defendant’ and ‘the Animal Authority’ include the Animal Authority and those persons.

105. The authorities falling within this description do not expressly include officers employed within Housing ACT, for whose acts or omissions the Territory may also be vicariously liable.

106. To the extent that the breach of any pleaded duty involved the failure to exercise a statutory power, the FASC does not specify the particular power in question and the person or entity in whom the power in question was reposed. In other important respects, facts and propositions are alleged against the “first defendant and the second defendant” compendiously without identifying the source of the duties and powers of the particular authority in question.

107. Argument on the appeal did little to resolve these ambiguities in Mr Meyers’ pleaded case.

GROUNDS OF APPEAL

108. The grounds of appeal are contained in [4(a)] to [4(j)] of the Notice of Appeal filed on 4 September 2018 (NOA).

109. Ground 4(j) alleges that the primary judge erred in his consideration of the evidence by failing to consider the evidence in its totality, failing to draw appropriate inferences, reaching findings of fact “without appropriate supporting evidence” and failing to apply the principle stated in Jones v Dunkel (1959) 101 CLR 298. It is convenient to dispose of this ground at the outset.

110. Despite some detailed reference to the evidence adduced at trial, counsel for Mr Meyers did not identify a particular factual finding said to be affected by appealable error, nor did counsel invite this Court to find any fact or to draw any factual inference contrary to those found or drawn by the primary judge. As the primary judge observed there were limited areas of factual contest: Meyers at [24]. In the circumstances, Ground 4(j) is not established.

111. In relation to the Commissioner as first respondent, the grounds allege that the primary judge erred by concluding that:

(a) the Commissioner was not liable in negligence in any event because of the operation of s 112 of the Wrongs Act (Ground 4(i));

(b) the scope of the Commissioner’s duty of care was not as pleaded by Mr Meyers (Ground 4(c));

(c) the Commissioner had not breached a duty owed to Mr Meyers (Ground 4(d));

(d) any breach of duty by the Commissioner or the Territory did not cause Mr Meyers loss or damage in the relevant sense (Ground 4(e)); and

(e) the Commissioner did not breach the lease and any breach of the lease was not causative of Mr Meyers’ loss or damage in the relevant sense in any event (Grounds 4(a) and 4(b)).

112. In relation to the Territory as second respondent, the grounds allege that the primary judge erred by concluding that:

(a) the Territory was not liable in negligence by reference to the acts or omissions of DAS because of the operation of s 112 of the Wrongs Act (Ground 4(i));

(b) the Territory, comprising those authorities responsible for administering the Domestic Animals Act, did not owe a duty of care to Mr Meyers (Ground 4(f));

(c) the Territory, so comprised, did not breach the duty of care it owed to Mr Meyers (Ground 4(g)); and

(d) the Territory’s breach of the duty of care it owed to Mr Meyers did not cause the harm suffered by him (Ground 4(h)).

113. The grounds of appeal are unhelpfully stated at a high level of generality, potentially encompassing nearly every issue decided against Mr Meyers at first instance. The reasons should be understood as addressing only those errors clearly alleged in written and oral submissions made on behalf of Mr Meyers at the hearing of the appeal.

114. It is convenient to deal first with Ground 4(i), together with the Notice of Contention filed on behalf of the second respondent.

SECTION 112

115. Both respondents relied on s 112 of the Wrongs Act in their joint pleaded defence at [54]. Section 112 provides:

112 When public or other authority not liable for failure to exercise regulatory functions (1) A public or other authority is not liable in a proceeding so far as the claim in the proceeding is based on the failure of the authority to exercise, or to consider exercising, a function of the authority to prohibit or regulate an activity if the authority could not have been required to exercise the function in a proceeding begun by the claimant. (2) Without limiting what is a function to regulate an activity for this section, a function to issue a licence, permit or other authority in relation to an activity, or to register or otherwise authorise a person in relation to an activity, is a function to regulate the activity.

116. Paragraph 42.2 of the FASC alleged that the powers of DAS included powers under the Domestic Animals Act in relation to dogs, including powers:

… (a) of seizure; (b) to obtain entry into private premises; (c) to destroy dogs seized; and (d) to declare dogs to be dangerous dogs and to act in accordance with such a declaration.

117. The primary judge held that Mr Meyers’ pleaded case was based upon the failure of DAS to regulate an activity and so the case was one to which the test for liability under s 112 applied. The primary judge said that it was “unlikely that the plaintiff would have been able to require the exercise of the function”. That was because (Myers at [295]): … each of the identified statutory functions, seizing a dog, obtaining entry into private premises, destroying the dogs or declaring the dogs to be dangerous involved a statutory discretion on the part of either an authorised person or the registrar. In the case of obtaining entry into premises, depending on the circumstances it may also require the favourable exercise of discretion by a magistrate. There was no statutory duty to take these actions which would be compelled by an order of mandamus.

118. As to standing, the primary judge said that Mr Meyers would have been a person who could have commenced a proceeding for relief “if there had been a duty compellable by mandamus” (at [296]).

119. As counsel for the respondents correctly pointed out, the primary judge expressed a view that the respondents would not be liable because of s 112 of the Wrongs Act, but his Honour did not consider it appropriate to reach a final conclusion on the question because of his earlier findings that the respondents were not liable in any event: Meyers, [297]. Accordingly, Ground 4(i) must be rejected because it attributes to the primary judge a concluded finding his Honour did not make.

120. The issue sought to be raised by that ground now arises for determination on the Notice of Contention in connection with the second respondent only. It is expressed as follows:

The Second Respondent contends that the order of Justice Mossop in its favour should be confirmed on the ground that: 1. Under s 112 of the Civil Law (Wrongs) Act 2002 ACT, the Second Respondent is not liable for the injuries suffered by the Appellant, because: a. the claim by the Appellant against the Second Respondent, is based on the failure by the Second Respondent to exercise or to consider exercising, a function that it had to prohibit or regulate the activity of the keeping of dogs; and b. on the proper construction of s 112, the Second Respondent could not have been required to exercise any such function in a proceeding brought by the Appellant.

121. By his written submissions, Mr Meyers contended that the second respondent had sought to introduce a new argument under s 112 that it had not advanced at trial. It was said that the respondents had confined their case under s 112 to the question of whether Mr Meyers’ had standing to begin a proceeding of the kind referred to in the provision, and had not agitated the question of whether the exercise of the statutory powers in question could be compelled in any such proceeding. The reasons of the primary judge (at [292]) suggest that this may indeed have been the case, although the respondents’ pleading was not so confined. Notwithstanding that, the primary judge, at least in his obiter remarks, rejected the contention that s 112 was concerned only with the question of whether a plaintiff’s interest in the proper exercise of a statutory function was any greater than that enjoyed by other members of the community. The primary judge went on to express the view that the relevant entities comprising the second respondent could not be compelled to exercise their functions or powers in a proceeding commenced by Mr Meyers (at [295]). The Notice of Contention seeks the dismissal of the appeal on the basis that the primary judge was correct in that conclusion.

122. No objection was made when counsel for the respondents handed up the Notice of Contention at the commencement of her submissions and sought leave to file it. Leave was granted and the parties proceeded to address its merits. To the extent that the second respondent required leave to advance a new argument, leave was granted when this Court granted leave to file the notice. If that were not the case, I would grant leave in any event: the contention is not inconsistent with the respondents’ pleaded case, raises an issue of general importance and has prima facie merit.

Section 112 in context

123. Chapter 8 of the Wrongs Act is titled “Liability of public and other authorities”. It applies “in relation to civil liability in tort”: see s 108(1).

124. It is necessary to consider s 112 in the context of other provisions contained in Chapter 8. They include:

110 Principles about resources, responsibilities etc of public or other authorities The following principles apply in deciding in a proceeding whether a public or other authority has a duty of care or has breached a duty of care: (a) the functions required to be exercised by the authority are limited by the financial and other resources reasonably available to the authority for exercising the functions; (b) the general allocation of the resources by the authority is not open to challenge; (c) the functions required to be exercised by the authority are to be decided by reference to the broad range of its activities (and not only by reference to the matter to which the proceeding relates); (d) the authority may rely on evidence of its compliance with the general procedures and applicable standards for the exercise of its functions as evidence of the proper exercise of its functions in the matter to which the proceeding relates. 111 Proceedings against public or other authorities based on breach of statutory duty (1) This section applies to a proceeding based on a claimed breach of a statutory duty by a public or other authority (the defendant authority) in relation to the exercise of, or a failure to exercise, a function of the defendant authority. (2) For the proceeding, an act or omission of the defendant authority is a breach of statutory duty only if the act or omission was in the circumstances so unreasonable that no authority having the functions of the defendant authority could properly consider the act or omission to be a reasonable exercise of its functions. (3) For a function of a public or other authority to prohibit or regulate an activity, this section applies in addition to section 112. … 114 Exercise of function or decision to exercise does not create duty The fact that a public or other authority exercises or decides to exercise a function does not of itself indicate that the authority is under a duty to exercise the function or that the function should be exercised in particular circumstances or in a particular way.

125. For the purposes of these provisions, the word "function" is defined in the Legislation Act 2001 (ACT) to include an authority, duty or a power: Legislation Act, Dictionary. The words “public or other authority” are defined in s 109 of the Wrongs Act to mean (relevantly) the Territory, an administrative unit or a Territory authority. An “administrative unit” is an administrative unit for the time being established under the Public Sector Management Act 1994 (ACT) and a “territory authority” includes a body established for a public purpose under an Act: Legislation Act, Dictionary. It was not suggested that the entities referred to in [4A] of the FASC did not meet one or more of these definitions. Oral argument on the appeal focused on the acts and omissions of Mr Ritzen particularly his failure to exercise any one of a number of powers conferred on him under the Domestic Animals Act to seize the dogs.

126. I make the following additional observations:

(a) Properly construed, s 112 erects a test for the exclusion of liability in all cases to which it applies, regardless of whether or not liability in negligence could otherwise be established at common law or under Ch 4 or Ch 8.

(b) In a case alleging civil liability of a public authority in negligence, the most appropriate course is to first determine any dispute about whether the case is one to which s 112 applies.

(c) If the case is one to which s 112 applies, the question of whether liability is excluded must then be determined in accordance with its terms.

(d) If liability is excluded under s 112, no occasion would arise to determine whether the elements of the tort of negligence (duty, breach and damage) are proven at common law or by reference to any other provision of the Wrongs Act that might otherwise have applied.

The test for liability

127. Section 112 may apply in cases where the power or function in question is conferred in mandatory terms. In such cases the enquiry into whether the authority in question could be compelled to exercise the power or to perform the function may be straightforward. That is not this case.

128. The Territory submitted that in cases involving the failure to exercise a discretionary power, s 112 is erects a test for liability that embodies the public law principles referred to by Lord Hoffman in Stovin v Wise [1996] AC 923 at 952 – 3 and by Brennan CJ in Pyrenees Shire Council v Day [1998] HCA 3; 192 CLR 330 (Pyrenees) at 347. In Pyrenees it was alleged that a duty of care was owed by a Shire Council, breach of which lay in a failure to exercise a statutory power that was conferred in discretionary terms. The duty was held to have been owed notwithstanding that the Council had not positively engaged in any activity that had created the risk. After identifying the steps available to the Council to prevent the relevant harm, Brennan CJ said (at [14]):

… If the Council was under any statutory or common law duty to take these steps, it was guilty of negligence: if it was not under any such duty, its carelessness does not expose it to liability in damages.

129. After referring to authorities concerning the (now disapproved) general reliance principle and authorities concerning the assumption of responsibility by public authorities, Brennan CJ continued:

21 In Stovin v Wise, a more cautious approach was taken by Lord Hoffmann in a speech which commanded the concurrence of Lord Goff of Chieveley and Lord Jauncey of Tullichettle: ‘In the case of a mere statutory power, there is the further point that the legislature has chosen to confer a discretion rather than create a duty. Of course there may be cases in which Parliament has chosen to confer a power because the subject matter did not permit a duty to be stated with sufficient precision. It may nevertheless have contemplated that in circumstances in which it would be irrational not to exercise the power, a person who suffered loss because it had not been exercised, or not properly exercised, would be entitled to compensation. I therefore do not say that a statutory 'may' can never give rise to a common law duty of care. I prefer to leave open the question of whether the Anns case was wrong to create any exception to Lord Romer's statement of principle in the East Suffolk case and I shall go on to consider the circumstances (such as 'general reliance') in which it has been suggested that such a duty might arise. But the fact that Parliament has conferred a discretion must be some indication that the policy of the act conferring the power was not to create a right to compensation. The need to have regard to the policy of the statute therefore means that exceptions will be rare. In summary, therefore, I think that the minimum preconditions for basing a duty of care upon the existence of a statutory power, if it can be done at all, are, first, that it would in the circumstances have been irrational not to have exercised the power, so that there was in effect a public law duty to act, and secondly, that there are exceptional grounds for holding that the policy of the statute requires compensation to be paid to persons who suffer loss because the power was not exercised.’ 22 I respectfully agree that if a decision not to exercise a statutory power is a rational decision, there can be no duty imposed by the common law to exercise the power. I further agree that if it be contrary to the policy of the statute to confer a private right to compensation for non-exercise of a statutory power, the common law cannot create that right. A statutory power and its incidents are creatures of the legislature and the common law must conform to the legislative intention. (footnote omitted)

130. Brennan CJ went on to identify circumstances in which the existence of a discretion to exercise a power would not necessarily be inconsistent with the recognition of a common law duty to exercise it. Among them was the circumstance he had previously identified (with the concurrence of Toohey and McHugh JJ) in Commissioner of State Revenue (Vict) v Royal Insurance Australia Ltd (1994) 182 CLR 51 at 88 where his Honour (citing Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997 at 1033 – 1034) said:

When the power exists and the circumstances call for the fulfilment of a purpose for which the power is conferred, but the repository of the power declines to exercise the power, mandamus is the appropriate remedy even though the repository has an unfettered discretion in other circumstances to exercise or to refrain from exercising the power.

131. Thus, his Honour concluded, a common law duty to exercise a discretionary power may arise if the circumstances are such that the exercise of the power could be compelled by a public law remedy. His Honour added this qualification (Pyrenees at [26]):

No duty breach of which sounds in damages can be imposed when the power is intended to be exercised for the benefit of the public generally and not for the protection of the person or property of members of a particular class. And I doubt whether a duty breach of which sounds in damages would be held to exist if the power were conferred merely to supervise the discharge by a third party of that party’s duty to act to protect a plaintiff from a risk of damage to person or property.

132. In Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; 211 CLR 540 (Graham Barclay), Callinan J said that as a minimum precondition for basing a duty of care upon the existence of a statutory power it must be shown that it was irrational in the circumstances for the repository of the power not to have exercised it, so that there was, in effect, a public law duty to act: at [310]. His Honour’s reference to irrationality may be understood as a reference to the test formulated by Lord Greene in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (Wednesbury). In accordance with these principles there will be a public law duty (compellable by mandamus) to exercise a discretionary power in a particular way, if it would be irrational (in the Wednesbury sense) not to do so.

133. Counsel for Mr Meyers contended that the word “required” in s 112 did not import public law principles but was concerned only with questions of standing. It was submitted that the provision would exclude liability if the plaintiff had an entitlement to apply for a mandatory injunction to require the exercise of a power if the failure to exercise the power would constitute a tort against the plaintiff, irrespective of whether such an action could succeed. There appears to be some support for that submission in the obiter reasons of Whealy JA (with whom McColl J agreed) in Kuehne with respect to an analogous provision in s 44 of the Civil Liability Act 2002 (NSW).

134. It may be accepted that s 112 is directed to questions of standing. As such, it serves the purpose of ensuring that a public authority will not be liable in negligence to a plaintiff who is in no better position to seek a remedy compelling the exercise of the power or function in question than any other member of the community. Although not cast in terms affecting the duty of care (cf s 110), s 112 should in this respect be understood as erecting a test for liability that imports a similar principle to that stated by Brennan CJ in the passage extracted at [131] above.

135. The primary judge said that s 112 was concerned with three issues, namely:

(a) to what extent is the liability “based on the failure of the authority to exercise or to consider exercising a function ... to prohibit or regulate an activity”;

(b) whether the relevant authority could have been required to exercise the function; and

(c) whether the authority could have been required to exercise the function “in proceedings begun by the claimant”.

136. This approach finds obvious support in the language of the provision and is consistent with the reasoning of Beech-Jones J in Lee v Carlton Crest Hotel (Sydney) Pty Ltd [2014] NSWSC 1280 (at [391] – [400]) in relation to s 44 of the Civil Liability Act. What, then, is meant by the word “required”?

137. Since Graham Barclay and Pyrenees were decided, irrationality and illogicality of the kind identified in Wednesbury have been identified as specific instances of legal unreasonableness, as explained in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 (Li). It is well established that a decision made pursuant to a statute (including a decision not to exercise a power conferred in discretionary terms) may be vitiated for jurisdictional error if the decision falls outside of the permissible area of decisional freedom reposed in the decision-maker. The area of decisional freedom is to be discerned by a close examination of the statute under which the power is conferred: see Li at [28] (French CJ); Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 (Stretton) at [7], [11] (Allsop CJ). It follows that an authority may be “required” to exercise a discretionary power in a particular way if a decision not to exercise the power in that way would be legally unreasonable. In such a case, mandamus may issue to compel the exercise of a power, notwithstanding that the power is conferred in discretionary terms.

138. Importantly, however, the law in relation to legal unreasonableness does not permit a court to require that a power be exercised in a particular way merely because it would be reasonable, in the view of the Court, to exercise the power in that way: Stretton at [12] (Allsop CJ). Whether or not the power should be exercised may be a question in respect of which reasonable minds may differ: Li at [28] (French CJ). If, within the bounds of the statute, it is lawfully open to the decision-maker not to exercise the power in question, then there can be no proper basis in public law for the Court to compel its exercise.

139. In my view, the word “required” in s 112 of the Wrongs Act is intended to embody these public law principles. The provision is intended to prevent the imposition of a common law duty to take positive action in circumstances where the imposition of the duty would restrict the area of decisional freedom otherwise reposed in the decision-maker under the statute in question. It precludes a right to compensation in respect of a refusal to act that is an otherwise lawful and valid decision.

140. To the extent that Mr Meyers’ claim is founded upon a failure to exercise a power to regulate or prohibit an activity, s 112 would operate to exclude liability of the entities identified in [4A] of the FASC unless an order in the nature of mandamus or some other form of compulsive order could have been made so as to compel the exercise of powers under the Domestic Animals Act in accordance with the public law principles to which I have referred. That requires a close examination of the statute in question in its application to the facts proven at trial.

Domestic Animals Act

141. The Domestic Animals Act establishes a regime providing for the control of dogs in the community. It adopts a regulatory model whereby a core activity is prohibited unless permitted by registration or licence.

142. Section 14 prohibits the keeping of a dog by any person other than its registered keeper.

143. The Act confers certain powers on the registrar, being a person appointed under s 121. Other powers are conferred upon persons identified as “authorised persons”, being the registrar, the deputy registrar and persons appointed as “authorised persons” under s 123.

144. A dog may be declared to be dangerous dog, either by a court in proceedings for the prosecution of certain offences under the Act, or by the registrar in the exercise of powers conferred by s 22. It provides:

22 Declarations—dangerous dogs (1) The registrar must declare a dog to be a dangerous dog if— (a) the dog has been trained as a guard dog, or is kept as a guard dog for guarding premises; or (b) the dog has attacked and caused the death of or serious injury to a person; or (c) a decision has been made under a law of a State in relation to the dog, the effect of which is comparable to a declaration under this section. (2) The registrar may declare a dog to be a dangerous dog if— (a) the dog has attacked or harassed a person or animal; or (b) the registrar reasonably believes the dog— (i) is aggressive or menacing; and (ii) without being kept in accordance with a dangerous dog licence, would be an unacceptable risk to the safety of the public or other animals. (3) In making a decision under subsection (2), the registrar must consider the circumstances surrounding the attack or harassment. (4) Subsection (3) does not limit the matters the registrar may consider. (5) If the registrar makes a declaration under this section, the registrar must give written notice to a keeper of the dog. Note For how documents may be given, see the Legislation Act, pt 19.5. (6) The notice must— (a) contain a statement to the effect that the registrar has declared the dog to be a dangerous dog; and (b) describe the obligations of a keeper of a dangerous dog under this Act; and (c) if the declaration is made while the dog is impounded—contain a statement to the effect that the dog may be sold or destroyed after 7 days beginning on the day after the keeper is given the notice unless, within that 7 days, an application is made for a dangerous dog licence.

145. The emphasis is mine. In this case there is no suggestion that the mandatory power in s 22(1) was enlivened on the facts.

146. Section 23 prohibits the keeping of a dangerous dog without reasonable excuse except in accordance with a dangerous dog licence. The power to grant a dangerous dog licence is conferred upon the registrar under s 25. That power is subject to conditions which interrelate with other provisions of the Act, to which I will shortly refer.

147. The word “attacked” in s 22(2) is not defined. The word “harass”, in relation to a person, is defined in the Dictionary to have the meaning given in s 49(1), namely:

A dog is taken to harass a person if, because of its behaviour, the person reasonably fears that the dog is about to attack the person without provocation.

148. The legislation creates a series of offences. In addition to the offence created by s 14 (unregistered dogs), they include the offence created by s 45 (unrestrained dogs on premises without permission of the occupier) and the strict liability offence created by s 49A. It provides:

49A Dog attacks or harasses person or animal (1) A person commits an offence if— (a) the person is the carer for a dog; and (b) the dog attacks or harasses another person or animal. …

149. A person may destroy a dog that is attacking the person or that is attacking someone else if destruction of the dog is necessary to bring the attack to an end or in other limited circumstances where the dog has killed or injured another animal: s 53. There is no express provision in the Act enabling an ordinary citizen to destroy a dog that has previously attacked a person or that presents a threat to the safety of a person. Nor is there any express provision in the Act providing for the forcible removal of a dog by an ordinary citizen from private or public premises. Argument on the appeal proceeded on the assumption that the Act was a total statement of the things that an ordinary citizen could or could not do vis a vis a dog (being a chattel) owned by another person, thus leaving no room at common law for Mr Meyers to take things into his own hands as he had understandably wanted to do. In that sense it may be said that management of risk presented by people who did not control their dogs in the community was reposed in the authorities upon which Mr Meyers was obviously reliant.

150. Division 2.7 of the Act is titled “Seizing dogs and dealing with them”.

151. The powers of seizure referred to by Mr Meyers are those conferred by s 56, s 57 and s 59. The preconditions for the exercise of each of these powers are different, as are the statutory consequences of their exercise. In each case, the registrar must impound the seized dogs and make reasonable enquiries to find out who is the keeper of the dog. The word “keeper” is defined to mean the registered keeper (if the dog is registered) or otherwise the owner of the animal.

152. Section 56 is titled “Seizure of dogs – general”. It relevantly provides that an authorised person may seize a dog if the dog is on premises occupied by a person other than the keeper of the dog and the occupier asks an authorised person to seize the dog: s 56(1)(d). An “occupier” of a premises includes a person who is, or is reasonably believed to be, in charge of the premises. The definition is sufficiently wide to include the Commissioner.

153. Section 57 is titled “Seizure – dangerous dogs”. Relevantly, it empowers an authorised person to seize a dangerous dog if a dangerous dog licence is not in force for the dog. If a dangerous dog is seized under s 57, s 63(2) of the Act requires the registrar to release the dog to a person claiming its release if, but only if, all of the conditions prescribed by that subsection are met, including conditions that the person claiming the dog is its keeper, the dog is registered, the premises where the dog will be kept are secure enough to prevent the dog from escape and a dangerous dog licence is in force for the dog.

154. Section 59 of the Act is titled “Seizure – attacking and harassing or menacing dogs”. It provides that an authorised person may seize a dog if the authorised person suspects on reasonable grounds that the dog has attacked or harassed a person or animal.

155. When a dog is seized under s 59, its release is governed by s 64. It provides:

64 Releasing dogs seized under attacking and harassing power (1) This section applies to a dog seized under section 59 (Seizure—attacking, harassing or menacing dogs) unless the dog is declared to be a dangerous dog after it was seized. Note Section 65 deals with the release of a dog declared to be dangerous after it is seized. (2) The registrar must release the dog to a person claiming its release if, but only if, the registrar is satisfied— (a) the person claiming its release is the dog’s keeper; and (b) the dog is registered; and (c) the court has not ordered the dog be destroyed under— (i) section 50(5) (Dog attacks person or animal causing serious injury); or (ii) section 50A(4) (Dangerous dog attacks or harasses person or animal); and (d) if the dog was seized under section 59 because of an offence against this Act—subsection (3) applies to the offence; and (e) the dog’s keeper has not relinquished ownership under section 69; and (f) any fee payable under section 144 for the release of the dog has been paid; and (g) the keeper is able to exercise responsible dog management, care and control in relation to the dog; and (h) there is not an unacceptable risk to the safety of the public or other animals from the dog being released and kept in accordance with the conditions of any control order. (3) This subsection applies to an offence if— (a) the holding period has ended and— (i) a prosecution has not been started for the offence; and (ii) an infringement notice has not been served for the offence; or (b) an infringement notice has been served for the offence and the infringement notice penalty has been paid or the notice withdrawn; or (c) a prosecution for the offence was started before the end of the holding period and— (i) the prosecution has been discontinued; or (ii) the keeper has been convicted or found guilty of the offence but is not disqualified by an order under section 138A from keeping the dog. (4) In this section: holding period, in relation to a seized dog—see section 62 (4).

156. Section 65 provides that if a dog is seized under s 56 or s 59 and, after the seizure, the dog is declared to be a dangerous dog, the registrar must release the dog to a person claiming its release if satisfied that the person is its keeper and a dangerous dog licence is in force for the dog.

157. Irrespective of the seizure power that has been exercised, a registrar may otherwise return a dog to its keeper under s 70 of the Act if satisfied that it would be in the public interest to do so. In exercising that power the registrar must consider the safety of the public, the cost of keeping the dog impounded and whether financial or other hardship would be caused to the keeper if the dog were to remain impounded.

158. Section 130 applies if an authorised person reasonably believes that an offence under s 49A of the Act has been, is being or will be committed and the authorised person reasonably believes that it is necessary to take action as quickly as possible to prevent, minimise or stop an offence, or to seize a dog: s 130(1)(a)(i), s 130(1)(b)(i), s 130(1)(b)(iii). Where s 130 applies (and only where it applies), s 130(2) empowers an authorised person to enter any premises at any time of the day or night, without a warrant, and with necessary and reasonable assistance and force. Critically, the power of entry under s 130(2) does not extend to a building used as a dwelling, no matter how heightened the emergency or grave the offence.

159. Section 133 is titled “Search warrants”. It establishes a procedure for the issue of a warrant by a magistrate if an information is laid alleging that the authorised person has reasonable grounds for suspecting that there may be on any premises an animal or thing of a particular kind connected with a particular offence against the Act, and setting out the grounds: s 133(1). Among other things, a warrant may authorise the authorised person to enter premises with reasonable assistance to seize the animal or thing: s 131 (d); s 133(2).

Application to the facts

Powers to regulate an activity

160. The word “function” includes a power.

161. The powers of DAS are principally concerned with the regulation of an activity (as defined) being the human activity of the keeping of dogs. The regulatory functions conferred under the Domestic Animals Act include the function of registering dogs and issuing licences, including dangerous dog licences. The regime also includes powers the exercise of which may affect proprietary rights in dogs, including the power to remove dogs from the physical possession of their owners, to seize dogs from private or public places and to destroy a dog in prescribed circumstances. The particular powers referred to in argument form a part of a multifaceted regime by which the activities of dog keepers and carers may be regulated and certain activities prohibited.

Standing

162. On the facts found at trial, Mr Meyers was a person having an immediate and obvious interest in the dogs being seized and impounded that was greater than that of other members of the community. It is uncontentious that the dogs would return to the complex from time to time and could be expected to continue to do so unless the authorities intervened. The notice issued by the Commissioner requiring the removal of the dogs had been ignored, as had the “warning notice” issued by Mr Ritzen to the extent that it required that the dogs be registered. From at least 16 February 2016, the Commissioner had urged Mr Ritzen to seize the dogs for reasons connected with the personal safety of the tenants residing at Warrock Court, and had done so in part to discharge contractual duties owed to the residents of the complex. Mr Meyers had an interest in the powers of DAS being exercised in a particular way sufficient to found his standing to seek a public law remedy. That is so notwithstanding that the dogs were not always in the vicinity of Warrock Court.

No mandatory relief

163. The alternate powers that Mr Meyers alleged ought to have been exercised were powers of seizure and impoundment, whether in conjunction with a dangerous dog declaration or on some other basis. It was not suggested that the exercise of powers to compel the registration of the dogs, or the commencement of a criminal prosecution against their carers or keepers would have prevented the attack on Mr Meyers.

164. Counsel for Mr Meyers referred only briefly to the alternate seizure powers without analysing the conditions on their exercise, or the events that would then transpire under the Domestic Animals Act in the event that the dogs were seized under each respective power. Submissions proceeded on the incorrect premise that seizure of the dogs was a statutory end in itself. The pleaded case did not identify any particular date upon which any particular power could and should have been exercised, nor by whom.

165. It was not suggested on the appeal that Mr Ritzen breached a common law duty the content of which required Mr Ritzen to ask Mr Rezo for consent to enter unit 11 under s 128 of the Domestic Animals Act to investigate whether the statute was being complied with. On the facts, it has not been shown that Mr Rezo would have granted his consent in any event. Submissions focussed on those statutory powers that might have resulted in the seizure of the dogs over the objection of their carers or keepers. The particular focus was on the facts as they stood at 16 February 2016, being the day on which Mr Ritzen met with Ms Diehm to discuss his seizure powers.

166. In my view, it has not been shown that Mr Ritzen or any other authorised person could have been compelled to exercise the seizure powers in question in a proceeding commenced by Mr Meyers, whether at that date or at any other time prior to 15 March 2016.

167. It was a precondition for the seizure of the dogs under s 59 of the Domestic Animals Act that an authorised person reasonably suspect that the dog had harassed or attacked a person. The evidence was that Mr Ritzen had believed the account that Mr Lahiff had given about the incident on 8 January 2016. Irrespective of whether Mr Ritzen was correct in his conclusion that Mr Lahiff had been harassed but not attacked, the factual precondition for the seizure of the dogs under s 59 of the Domestic Animals Act was clearly present.

168. On the facts, Mr Ritzen did in fact give consideration to the exercise of the power to seize the dogs and yet decided in his discretion not to do so. There appear to be three reasons for that decision. The first is Mr Ritzen’s purported compliance with guidelines utilised within DAS to identify the most appropriate regulatory response. For the purposes of what follows it will be assumed that Mr Ritzen misapplied the guidelines because he wrongly mischaracterised the incident involving Mr Lahiff as harassment rather than as an attack.

169. The second is that Mr Ritzen believed that the Commissioner was sufficiently equipped with powers under the tenancy agreement to deal with the dogs. On the evidence, it may be inferred that this belief persisted until at least 16 February 2016 when he was specifically asked to consider the exercise of his powers and gave an explanation to Ms Diehm as to why he would not do so.

170. If these matters constituted errors in the exercise of Mr Ritzen’s discretion, that would be sufficient to justify an order compelling him to exercise his discretion in accordance with the law. However, it would not follow that the lawful exercise of the discretion necessitated that a decision be made to seize the dogs, whether pursuant to the power conferred by s 59 of the Domestic Animals Act or pursuant to any other power.

171. The third consideration informing Mr Ritzen’s decision was evidenced by his discussion with Ms Diehm on 16 February 2016. Mr Ritzen said that he could not enter unit 11 without first obtaining a warrant. That statement was correct. Unit 11 was a “dwelling” within the meaning of s 130(2) of the Domestic Animals Act and so the powers to seize the dogs were significantly confined, even if Mr Ritzen could and should have reasonably suspected that an offence under s 49A had been committed (see s 130(1)(a)(i)) and even if Mr Ritzen could and should have formed a reasonable belief that it was necessary to take action as quickly as possible to seize the dogs (see s 130(1)(b)(iii)). The relevant confinement on the seizure power was that Mr Ritzen could not enter unit 11 without a warrant.

172. Viewed from the perspective of a person in Mr Meyers’ position, this restriction on the powers of an authorised person to seize a dog may seem perplexing. But that is the balance struck by the statute: in the absence of a warrant, the proprietary interests of the owner or occupier of a dwelling prevail over the interests of persons who might be at risk of personal injury, however grave the risk.

173. Of course, Mr Ritzen could seize the dogs without a warrant if they were situated other than within Mr Rezo’s dwelling and the factual preconditions for the seizure were otherwise satisfied. When situated on the common area and unrestrained, the dogs presented an immediate danger to the residents there. When Mr Ritzen attended at the property on the afternoon of 8 January 2016 following the incident involving Mr Lahiff, the dogs were not at Warrock Court. Mr Meyers’ submissions on the appeal did not establish that Mr Ritzen could have been compelled to seize the dogs on that particular day, assuming it was within his power to do so. The dogs were not at Warrock Court when Mr Ritzen attended again, in the company of a second ranger, on 13 January 2016.

174. In the circumstances described, for Mr Ritzen to seize the dogs it would have been necessary either to obtain a warrant to enter Mr Rezo’s dwelling or to station himself for an indeterminate period at Warrock Court to await the appearance of the dogs on the common property where they could be seized without a warrant. Each of those courses was clearly available to Mr Ritzen. However, it cannot be said that Mr Ritzen could have been compelled to take either course in a proceeding commenced by Mr Meyers. On the facts, it was within the area of Mr Ritzen’s decisional freedom to take neither course.

175. Different questions might have arisen had Mr Ritzen been informed at a particular time that the dogs were situated on the common property and so could be seized without entering unit 11. It has not been shown that Mr Ritzen knew at any particular time after 8 January 2016 that the dogs were situated on the common property and so able to be seized from there. Mr Ritzen’s discussion with Ms Diehm on 16 February 2016 was premised on an assumption that it would be necessary to enter unit 11 to seize the dogs, and it was not submitted on the appeal that his assumption on that day was wrong.

176. I have not overlooked the curious response of the registrar to the urgent remonstrations of Mr Lahiff on 8 January 2016. As has been observed, the registrar’s email discloses a concern to manage adverse publicity arising out of the incident rather than with the exercise of her own powers to manage the risk presented by the dogs by, for example, declaring the dogs to be dangerous. However, the statutory scheme was such that the registrar could not be compelled to declare the dogs to be dangerous because the factual conditions for the exercise of the mandatory power under s 22(1) of the Domestic Animals Act had not been fulfilled. The registrar might have been compelled to consider the exercise of the discretionary power under s 22(2) of the Domestic Animals Act, (which would entail according procedural fairness to the dogs’ carers), but it has not been shown that the only lawful outcome of the exercise of that discretion would be the making of such a declaration. In short, an authorised person could not be compelled to seize the dogs under s 57(b) of the Domestic Animals Act in the absence of a dangerous dog declaration, which could not itself be compelled.

177. It follows from the above that s 112 applies to exclude the second respondent’s liability. The Notice of Contention should be upheld and the appeal against the second respondent dismissed on that basis.

NO DUTY OWED BY DAS

178. If I am wrong in concluding that s 112 applies so as to exclude liability I would in any event conclude that the primary judge did not error in finding the entities referred to in [4A] of the FASC owed no duty of care.

179. As Callinan J observed in Graham Barclay at [310], there is no universally agreed statement of principle by which a claim founded in negligence against a public authority must be determined. Kirby J was more forthright when he described the development of the law in this area as amounting to “doctrinal chaos”: Graham Barclay at [212] (his Honour there citing Witting, “The Three-stage Test Abandoned in Australia – or Not?” (2002) 118 Law Quarterly Review 214 at 214). It is perhaps because of the lack of a universally agreed principle that the legislature has intervened by the enactment of Ch 8, although not necessarily in a way that introduces any more certainty in outcomes.

180. In Kuehne, having found liability excluded by s 43A of the Civil Liability Act, Whealy JA went on to consider whether a duty of care would otherwise have been owed by a public authority to family members of a child killed in a dog attack when she wandered into a neighbour’s yard. In the course of doing so, his Honour conveniently summarised the principles as follows:

132 The law has in recent times grappled with the problem of ascertaining whether a duty of care arises in such cases. This is especially so in a case where a person has been harmed, arguably as a consequence of a failure by a person or body to exercise an available statutory power. In such a case, the existence and nature of the statutory power is central to the resolution of the problem. As Gummow J pointed out in Pyrenees Shire Council v Day (1998) 192 CLR 330; 96 LGERA 330 at [126]: Some of these distinctions and doctrines are entrenched in the common law of Australia, others are not. All of them … tend to distract attention from the primary requirement of analysis of any legislation which is in point and of the positions occupied by the parties on the facts as found at trial. This analysis is of particular importance where … the facts do not fall into one of the classes … already recognised by the authorities as attracting a duty of care, the scope of which is settled. 133 Several years later, in Brodie v Singleton Shire Council (2001) 206 CLR 512; 114 LGERA 235, the plurality (Gaudron, McHugh and Gummow JJ, at [102]) said: Whatever may be the general significance today in tort law of the distinction between misfeasance and non-feasance, it has become more clearly understood that, on occasions, the powers vested by statute in a public authority may give it such a significant and special measure of control over the safety of the person or property of citizens as to impose upon the authority a duty of care. This may oblige the particular authority to exercise those powers to avert a danger to safety or to bring the danger to the knowledge of citizens otherwise at hazard from the danger. In this regard, the factor of control is of fundamental importance. 134 In more recent times, the High Court has re-addressed these difficult issues and has re-emphasised the matters which have to be examined. In Stuart v Kirkland-Veenstra (2009) 237 CLR 215, the High Court warned of examining the issue from the wrong perspective. At [103], the plurality (Gummow, Hayne and Heydon JJ) pointed out that whether the asserted duty exists is not determined by whether the conditions for exercise of the statutory power were shown to have existed in a particular case. The existence of facts satisfying those conditions, their Honours pointed out, would, however, be a central part of the inquiry about breach. Their Honours added: Rather, in deciding whether the officers owed the asserted duty it is necessary to consider what is the duty which it is said is owed by those who have a specific statutory power, and how is that duty said to arise out of the ‘relationship’ created by the existence of that power. Both the specificity of the duty and the nature of the alleged ‘relationship’ require further examination. 135 In that context the plurality noted that, while power is a necessary condition of liability, it is not a sufficient condition. The mere fact that there is a statutory power to act in a particular way, coupled with the fact, if action is not taken, it is reasonably foreseeable that harm will ensue, is not sufficient to establish a duty to take that action. At [112], the plurality said: Rather, as was pointed out in Graham Barclay Oysters Pty Ltd v Ryan, the existence or otherwise of a common law duty of care owed by a statutory authority … ‘turns on a close examination of the terms, scope and purpose of the relevant statutory regime’. Does that regime erect or facilitate ‘a relationship between the authority … and a class of persons that, in all the circumstances, displays sufficient characteristics answering the criteria for intervention by the tort of negligence’? 136 The factors that their Honours stressed in evaluating the relationship between the holder of the power and the person or persons to whom it is said that a duty of care is owed were: i) the degree and nature of control exercised over the risk of harm that has eventuated; ii) the degree of vulnerability of those who depend on the proper exercise of the relevant power; iii) the consistency or otherwise of the asserted duty of care with the terms, scope and purpose of the relevant statute. 137 Their Honours emphasised that often it will be ‘the factor of control that is of critical significance’. 138 In Stuart, the joint judgment of Crennan and Kiefel JJ emphasises the ‘measure of control’ point. At [136] their Honours said: The measure of control which may be provided by a statute, with respect to the safety of persons or property, has been considered to be indicative of a duty of care. And again at [138] their Honours said: Questions about the degree of a public authority’s control over the risks to which a plaintiff was exposed will usually be answered by reference to the statute providing for those measures. Where a statute provides significant and special measures, which may be seen to be directed towards the risk of harm to a class of persons or property, attention is directed to the purpose for which the measures have been provided. If part of the rationale for excepting a public authority from the general rule of the common law, that no affirmative action is required, is the availability of statutory powers, their purpose must necessarily be considered. 139 Applying these principles to this case, I am prepared to accept that, upon the proper construction of the Companion Animals Act, significant and special measures have been created which may properly be regarded as directed towards the risk of harm to a class of persons or property, such as the respondents and their daughter in the present matter…

181. Whealy JA concluded that the statute administered by the public authority had created significant and special measures which may properly be regarded as directed towards the risk of harm to a class of persons or property, such as the respondents and their daughter (at [139]). The statute, Whealy JA said, erected a relationship between the authority and the plaintiffs characterised by a very high degree of control sufficient to give rise to a duty of care (at [140], [145]). Whealy JA concluded:

146 Moreover, the level of vulnerability in the present case of Tyra, her family (and other residents of Garden Avenue) is plainly obvious. If there had been credible material before the Council to warrant the making of a declaration, it is clear that its failure to do so would throw up a real concern for the safety of persons likely to be affected by reason of that failure. It may properly be said that the legislation provided the Council with the power to control the source of the risk of harm that would likely flow to people in the vulnerable position of the respondents and other nearby residents. That power was not available to the class of persons of which the respondents were members, nor was it available to members of the public generally. Although reliance may not presently be seen as significant as the other matters referred to by the plurality in Stuart, it may properly be said that the respondents belonged to a class which, of necessity, relied upon the Council as the principal repository of powers under the Companion Animals Act to protect them by controlling the Wilsons and their dogs. 147 I would hold that the primary judge was not in error in finding that, at the appropriate level of abstraction, there was a duty of care, and in recognising that the scope of that duty extended to the circumstances of the case sought to be made by the respondents. This duty was not inconsistent with the terms, scope and purpose of the relevant statute.

182. This reasoning must be understood having regard to the content of the duty alleged by the plaintiff in Kuehne. The case was based on a failure by the authority in question to exercise a mandatory power to declare the dogs to be dangerous and to impound them on that basis. The mandatory power was of a kind that was enlivened by the existence of objective facts: compare s 22(1) of the Domestic Animals Act. It may be accepted that a common law duty to exercise a statutory power will more readily arise when the power is conferred in mandatory terms and all of the factual preconditions for its exercise exist. In such cases, the existence of an available and mandatory power to eliminate a risk of harm may be a determinative feature of the relationship between the plaintiff and defendant justifying the imposition of a common law duty to act. However, while a duty of care in Kuehne was held on appeal to arise at a “level of abstraction”, the duty as formulated by the plaintiff had not been breached because the factual preconditions for its exercise were not proven.

183. Contrary to the submissions advanced by Mr Meyers, the primary judge did not err by declining to follow the obiter remarks of Whealy JA in Kuehne. The primary judge preferred the analysis of Connolly M in Duncan v Ryan and The Australian Capital Territory [2002] ACTSC 47 (Duncan). In that case, Connolly M concluded that no duty of care was owed by a public authority to a nine year old child who had suffered serious injuries in a dog attack. The dog had been permitted by its owner to escape from its yard and roam the neighbourhood. The dog had previously attacked a neighbour’s dog, resulting in the attacked dog having to be put down. The child’s substantive claim against the owner of the dog was settled. The matter then proceeded to hearing on a contested third party claim by which the dog’s owner brought a claim for contribution against the Territory. The owner alleged that officers responsible for the administration of the now repealed Dog Control Act 1975 (ACT) owed a duty of care to the child and so the Territory was liable to pay a contribution. Connelly M said (at [7]):

The defendant’s position is, in effect, to say that although I was in breach of my legal obligation to keep a dog under control, I should not be held solely financially accountable for my irresponsibility because the Territory should have prosecuted me and stopped me from acting irresponsibly in allowing my savage dogs to wander. Thus stated, the proposition is clearly unattractive. The analogy is to a claim against the police for failing to stop a criminal from causing criminal damage. Such an action, it has been held, does not lie at common law (Hill v Chief Constable of West Yorkshire [1989] AC 53 …)

184. The primary judge said that the reasoning of Connolly M in Duncan was correct and so concluded that those officers charged with responsibilities under the Domestic Animals Act, did not owe Mr Meyers a duty of care: Meyers at [251]. His Honour continued:

185. It is true to say that the officers of the Territory with powers under the Domestic Animals Act do have significant powers that enable them to control the risks posed by dogs. However, when control is discussed in this context, the most significant distinction is between control over risks caused by the statutory authority and risks caused by the actions of third parties. As Dixon J said in Smith v Leurs (1945) 70 CLR 256 at 262, ‘It is … exceptional to find in the law a duty to control another’s actions to prevent harm to strangers’. The present case involves regulatory powers available under a statute. That is to be contrasted with a situation where the exercise of the statutory power itself creates the risk which manifests itself. The powers in question in the present case do not incorporate an express duty that they be exercised to ensure the safety of residents of the Territory: cf Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; 200 CLR 1 at [17]. Nor did they extend to the degree of control analogous to that which existed in Crimmins which included the power to determine where stevedores worked: Crimmins at [37]-[38], [44] and [104]. Rather, they were powers which Connolly M accurately characterised as ‘more compared with police type powers’: Duncan at [6]. 252. It is well-established that police do not owe a duty of care to protect members of the public from criminal activity, even when the risk of that criminal activity is known by the police: Australian Capital Territory v Crowley [2012] ACTCA 52; 7 ACTLR 142 at [270]-[313].

186. The primary judge accepted that Mr Meyers was a vulnerable person by reason of his physical proximity to the dogs and his “likelihood of encountering them if they were not properly managed”. His Honour said that “the nature of the powers exercised by the officers of the Territory” did not render Mr Meyers vulnerable: Meyers at [253]. The latter conclusion may be understood as meaning that it was not the activities of DAS that had created the risk presented by the dogs, and so reinforced his Honour’s conclusion as to a want of control.

187. The primary judge went on to identify a degree of reliance in the sense that officers administering the Domestic Animals Act had powers that ordinary citizens did not have. The judge said that in a practical sense Mr Meyers’ reliance on DAS was no different from the reliance of the members of the public on the proper exercise by police officers in the exercise of their powers to reduce crime and so was not of a kind to justify the imposition of a common law duty of care: Meyers at [254].

188. The primary judge said that the officers of DAS had not otherwise voluntarily assumed responsibility for Mr Meyers’ protection such as would give rise to a duty of care in discharging any such responsibility: Meyers at [255].

189. There is no appealable error in any of these observations. I respectfully agree with them and would add the following.

190. Clearly the Domestic Animals Act was enacted to establish a regime for the management of the risks presented by dogs in the community. However, when read as a whole, the regime established by the Act does not provide for the mandatory and immediate elimination all such risks. Rather, the Act strikes a balance between the interests of the keepers and carers of dogs and the interests of those who might be harmed. For the most part, the duties imposed by the Act are imposed not upon a public authority but upon those members of the community having dogs in their care. With the exception of some mandatory powers such as that contained in s 22(1), (which was not enlivened here), the Act leaves the appropriate degree of intervention and risk management to the discretion of the authorities concerned. These considerations count strongly against the imposition of a common law duty having the particular content contended for by Mr Meyers.

191. Even if s 112 of the Wrongs Act did not apply on its terms, it remains that the exercise of statutory powers under the Domestic Animals Act in a particular way could not otherwise have been compelled in accordance with public law principles in the factual circumstances of the case. In my view, that is a significant feature of the relationship between the relevant authorities and Mr Meyers as plaintiff. Once it is accepted that the existence of a discretionary power to manage a risk does not of itself give rise to a common law duty to act, it is necessary to search for other features of the relationship from which a duty to take positive action may be divined. The relationship between Mr Meyers and authorities within DAS was not defined by any risk-producing activity in which those authorities were engaged, nor by any responsibility voluntarily assumed, nor by the possession of knowledge: cf Pyrenees.

192. Together, these considerations are sufficient to support the conclusion that the authorities within DAS (whether viewed as an administrative unit or as individual decision-makers) did not owe a duty having the specific content pleaded by Mr Meyers, notwithstanding that there was little Mr Meyers could do in his personal capacity to eliminate the risk.

193. I would arrive at that conclusion irrespective of s 110 of the Wrongs Act. Little attention was given in the course of submissions to that provision and this Court was taken to little evidence suggesting how it might apply on the facts. The brief submissions on appeal concerning s 110 do not alter my view that no duty of care was owed.

194. In the event that it were necessary to decide Ground 4(f) in relation to the entities referred to in [4A] of the FASC, I would reject it.

Causation and DAS

194. Having found no breach of duty on the part of any officer of DAS, it was unnecessary for the primary judge to determine whether any such breach was causative of Mr Meyers’ injuries. It was not possible, his Honour said, to make “contingent findings in relation to the issue because the variety of breaches that are alleged are such that each would require specific findings on causation that would be sensitive to the factual findings as to what constituted the breach of duty” (Myers [299]). There is no error in that approach.

195. To the extent that the Grounds 4(f), 4(g) and 4(h) are directed at the entities referred to in [4A] of the FASC, those grounds are not established. Vicarious liability of Territory for acts and omissions of officers within Housing ACT

196. It remains to consider a further argument by which the Territory was said to be liable to Mr Meyers. The argument was that the Territory was vicariously liable for the acts or omissions of officials exercising powers and functions under the Housing Assistance Act. Mr Meyers relied upon s 10, s 11 and s 37 of that Act, which provide:

10 Housing commissioner—powers generally (1) The housing commissioner has all the powers of a person, unless expressly excluded by this Act. Examples of powers 1 to enter into a contract 2 to own and dispose of property 3 to sue and be sued 4 to act as a trustee Note 1 Person includes an individual and a corporation (see Legislation Act, dict, pt 1). Note 2 See s 12 to s 15 for limits on the housing commissioner’s powers. Note 3 An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132). (2) Without limiting subsection (1), the housing commissioner may enter into arrangements with entities to provide housing assistance. Note Entity includes a person—see the Legislation Act, dict, pt 1. 11 Housing commissioner—functions (1) The housing commissioner has the following functions: (a) administering, on behalf of the Territory, programs and funding arrangements for delivering housing assistance in the ACT by way of— (i) public rental housing; and (ii) home ownership; and (iii) financial assistance to home owners and tenants; and (iv) community housing; and (v) affordable housing; (b) administering, on behalf of the Territory, any services relating to housing assistance that the Minister approves under subsection (2). Note A provision of a law that gives an entity (including a person) a function also gives the entity powers necessary and convenient to exercise the function (see Legislation Act, s 196 and dict, pt 1, def entity). (2) The Minister may approve stated services relating to housing assistance. (3) An approval is a notifiable instrument. Note A notifiable instrument must be notified under the Legislation Act. … 37 Protection of officials from liability … (2) An official is not personally liable for anything done or omitted to be done honestly and without recklessness— (a) in the exercise of a function under this Act; or (b) in the reasonable belief that the conduct was in the exercise of a function under this Act. (3) Any liability that would, apart from this section, attach to an official attaches instead to the Territory. Note A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including any approved housing assistance program or regulation (see Legislation Act, s 104).

197. Mr Meyers sought to attach vicarious liability to the Territory by reference to the acts and omissions of Ms Diehm and others employed within Housing ACT, both in their dealings with DAS and in their dealings with Mr Rezo and his unauthorised visitors. References to the “second defendant” in the FASC were said to include these individuals in the exercise of powers and functions under the Housing Assistance Act or the Residential Tenancies Act independently of the Commissioner’s status as the owner and landlord of the premises.

198. The reasons of the primary judge make brief mention of this argument in the context of considering the pleaded allegations as to breach. His Honour said:

199. The breaches alleged by the plaintiff are pleaded in a lengthy and unhelpful way. Paragraph 39 of the FASC provides: 39. The first defendant and the second defendant was negligent by: 39.1 Failing to ensure the Complex was safe; 39.2 Failing to remove the Trespassers from the Complex; 39.3 Failing to remove the Dogs from the Complex; 39.4 Failing to contain or restrain the Dogs whilst in the Complex; 39.5 Failing to enforce the Rules; 39.6 Failing to investigate, assess and/or manage the risk posed by the Dogs; 39.7 Failing to enforce the Terms against Mr Michael Rezo so as to terminate the Trespass Arrangement and/or the Dangerous Dog Arrangement so as to remove the Dogs from the Complex; 39.8 Failing to heed and/or act on its knowledge of the dangers of the Dogs; 39.9 Failing to manage, supervise or control the Dogs adequately or at all whilst they remained at the Complex; 39.10 Permitting the Dogs to be left in the common areas of the Complex; 39.11 Permitting the Dogs to be un-muzzled, uncontained and/or unrestrained at the Complex; 39.12 Failing to ensure the safety of the residents at the Complex; 39.13 Failing to exercise its statutory powers reasonably; 39.14 Permitting Pit Bull dogs and/or the Trespassers to be at the Complex at all; 39.15 Having no, or no adequate, guidelines, policies and procedures for the keeping of pets that would ensure a safe environment for residents and visitors at the Complex; 39.16 Publishing and adopting a sham pet policy for the Complex; 39.17 Failing to implement or manage any guidelines, policies and procedures for the keeping of pets at the Complex; and 39.18 Each failing to take action to address the failures of the other defendant, as pleaded above. 206. The reference to the second defendant in the pleading is because the staff of the Commissioner were in fact public servants for whom the Territory would be vicariously liable. As no point was taken about this, I will treat the claim as being one that is directed to the first defendant and for ease of reference simply refer to the Commissioner rather than both defendants.

200. The approach adopted at [206] is said to involve appealable error resulting in:

a. an incomplete analysis by his Honour of the existence of a duty of care, breach, causation and the availability of statutory defences in relation to the second respondent; and b. a failure of the Trial Judge to consider important elements in the appellant’s case, including the manner in which the staff of Housing ACT exercised their functions through other agencies, including Domestic Animal Services (DAS).

200. In my view, this argument seeks to exploit ambiguities in the pleading of the kind identified earlier in these reasons. The definition of the second respondent in [4A] of the FASC did not expressly include any person or entity acting as agent of the Commissioner or any person performing functions or exercising powers under the Housing Assistance Act or the Residential Tenancies Act.

201. The significance of the Territory being vicariously liable for acts or omissions of persons such as Ms Diehm is in any event unclear. Assuming that such a case had been clearly articulated at trial, it has not been shown that the outcome of the trial would have been any different. On appeal, no attempt was made to articulate a duty of care owed by officers within Housing ACT that was any different in scope to that said to be owed by the Commissioner in his capacity as the landlord party to the tenancy agreements in question and the occupier of the premises. On Mr Meyers’ case, the actions that the officers of Housing ACT ought to have taken are actions that are referrable to the tenancy agreement with Mr Meyers, the tenancy agreement with Mr Rezo or the statutes to which those agreements were subject.

202. To the extent that the grounds of appeal assert that the primary judge erred by treating the claim as one directed to the Commissioner and by referring to the Commissioner “for ease of reference” when determining the second respondent’s liability alleged in [39] of the FASC, the grounds should fail. This Court’s consideration of the liability of the Commissioner should be understood as examining the acts and omissions of officers within Housing ACT, being acts and omissions for which the Territory may be vicariously liable. THE FIRST RESPONDENT

203. The pleaded case against the Commissioner was founded in both negligence and contract.

204. The case in contract asserted that the Commissioner had breached cl 52 of the tenancy agreement (extracted at [45] above).

205. Relevantly, the breach of this clause was said to arise because the Commissioner had taken no (or no effective) action to:

(a) enforce Mr Rezo’s tenancy agreement and the Rules of the Complex included within it (which prohibited the keeping of pets by Mr Rezo);

(b) follow up on the notification Ms Diehm had given to Mr Rezo in December 2015 by which Mr Rezo had been required to remove the dogs

(c) terminate the arrangement whereby Mr Rezo had allowed Mr Matas and Ms Skinner to occupy unit 11 and to keep the dogs there; or

(d) remove the dogs from the Warrock Court.

206. The case founded in negligence alleged that the Commissioner owed a duty of care:

37.1. in accordance with section 168 of the Civil Law (Wrongs) Act 2002; 37.2. to take reasonable steps to ensure the plaintiff would not suffer injury loss and damage while residing in the Complex; 37.3. to take reasonable steps to ensure the plaintiff would not suffer injury, loss and damage because of the state of the Complex; 37.4. to prevent the unlawful, unregulated and dangerous use of the Complex by the Trespassers; 37.5. to enforce the [Rules of the Complex] so as to preserve the safety and amenity of the Complex for its residents; 37.6. to comply with clause 52 of the [tenancy agreement]; and 37.7. to remove and/or contain the danger posed by the Dogs.

Alleged breach of cl 52

207. It is convenient to deal first with the contention that the Commissioner failed to comply with cl 52 of the tenancy agreement. The relevant pleaded allegation was as follows:

208. The failure of the first defendant and the second defendant to either: 33.1. remove the Dogs from the Complex; 33.2. remove the Trespassers from the Complex; 33.3. adequately investigate the Dangerous Dog Arrangement; 33.4. adequately investigate the Trespass Arrangement; 33.5. take reasonable steps to ensure that the Dogs did not pose a risk to the plaintiff; or 33.6. warn the plaintiff that it had not and would not take action to address the risk posed by the Dogs; constituted a breach of the Tenancy Agreement.

209. The primary judge said that rule 6 of the Rules of the Complex (which prohibited the keeping of pets) added nothing of substance to the Commissioner’s obligation under cl 52. I agree with that conclusion. There is no discrete challenge to it on this appeal.

210. The primary judge reviewed the authorities bearing on the meaning of the word “permit” in cl 52, including his earlier decision in Harris v Commissioner for Social Housing; Towney-Kilby v Commissioner for Social Housing; Sullivan v Commissioner for Social Housing [2013] ACTSC 186; 8 ACTLR 98 (Harris). Applying the reasoning in Department of Housing v Consumer, Trader and Tenancy Tribunal and Anor [2003] NSWSC 150 (Shaw J), the primary judge proceeded from the premise that the concept of permission may include indifference or omission, such that a proven failure to take active steps to remedy a state of affairs may support a finding that the state of affairs had been “permitted”. That construction is correct.

211. On the facts, the primary judge concluded that the Commissioner did not “permit” Mr Rezo or any other person to keep the dogs at Warrock Court in the relevant sense. His Honour said:

189 … When the complaint was made on 13 December 2015, proper steps were taken to address it. The relevant Housing Manager, Ms Diehm, met with Mr Rezo on 22 December 2015 and told him that the dogs could not stay there and that he needed to get rid of them. Mr Rezo agreed that they would be removed. She followed that up with the letter on 23 December 2015. That letter reinforced the agreement between Mr Rezo and Ms Diehm that the dogs would be removed no later than 27 December 2015. It made clear that any further complaints may lead to the matter being referred to the ACAT. Following the attack on Mr Lahiff on 8 January 2016, the Notice to Remedy was issued. That asserted that Mr Rezo’s failure to have the dogs removed from the property amounted to a breach of cl 70 of the standard residential tenancy terms and was a formal step necessary under the lease prior to termination of the tenancy for breach. After that, persistent attempts were made by Ms Diehm to contact and ‘engage with’ Mr Rezo by telephone in an attempt to resolve the issue of his guests and their dogs. When, following the expiry of the period in the Notice to Remedy, further complaints were made on 16 February 2016, Ms Diehm set in train the process for removing Mr Rezo’s rebate in an attempt to have him prevent Mr Matas and Ms Skinner from using his premises. When Mr Rezo contacted Ms Diehm, she arranged for him to come in and talk to her but he did not do so. The steps that were taken were not successful in having the dogs permanently removed from the property prior to the attack on the plaintiff, but the failure of the measures is not sufficient to prove that the Commissioner permitted the interference with the reasonable peace, comfort or privacy of the other tenants. 190. While, with the benefit of hindsight, it is possible to say that more aggressive steps could conceivably have been taken, that does not mean that the interference with the quiet enjoyment of Mr Meyers was ‘permitted’ by the Commissioner. The Commissioner always asserted that the dogs were not permitted without permission and took steps to solve the problem created by their presence. This case is clearly distinguishable from that in Aussie Traveller where the landlord expressly stated that it would not address the nuisance unless the tenant agreed to pay additional rent. Further, it is not a case in which the Commissioner could have been said to have omitted to take any action (or any effective action) for such a period or in relation to issues of such significance as to be permitting the conduct in the sense contemplated by Shaw J in Department of Housing, based on the decision in Elliott v Nanda (2001) 111 FCR 240 at [160].

211. It is submitted that these passages disclose error in that the primary judge unjustifiably qualified the scope of the word “permit”. The mandatory nature of cl 52 required strict performance and so could not be satisfied by taking “reasonable steps”, so it was submitted.

212. In my view, these submissions misapprehend both the reasoning of the primary judge and the legal nature of his Honour’s inquiry. By referring to the steps in fact taken by the Commissioner as lessor, the primary judge did not ignore or undermine the mandatory nature of cl 52. The contest at trial did not relate to the mandatory nature of the obligation imposed, but to the content of the obligation. The relevant obligation prohibited the Commissioner from “permitting” (whether by act or omission) the relevant interference.

213. Having correctly stated the test, the primary judge made a mixed finding of fact and law to the effect that the Commissioner had not “permitted” the interference with Mr Meyers’ peaceful enjoyment of his unit at Warrock Court in the relevant sense as evidenced by the words and actions of the Commissioner through the agency of Housing ACT staff. Those actions included a persistent assertion in dealings with Mr Rezo that the dogs were not permitted on the property and must be removed and the other steps referred to at [189] of his Honour’s reasons. Properly understood, the reasoning at the conclusion of [190] identifies a different class of case in which an omission by a lessor to act in connection with a state of affairs might properly give rise to an inference that the lessor had “permitted” the state of affairs to continue. No such inference arose on the facts of Mr Meyers’ case.

214. In my view, the arguments advanced by Mr Meyers on this topic sought to elevate the obligation under cl 52 (a contractual duty not to permit the occurrence of an event) to a mandatory obligation to prevent the occurrence of the event. It was by that erroneous route that Mr Meyers’ argued to the conclusion that the failure to secure the removal of the dogs amounted to a breach of the clause. The argument does not accord with the proper construction of the terms governing the contractual relationship between Mr Meyers and the Commissioner and so should be rejected.

215. Ground 4(a) is not established.

The duty of care

216. The Commissioner did not dispute that a duty of care was owed to Mr Meyers. The contentious issue at trial was the source of the duty and its content.

217. For Mr Meyers it was submitted that the duty and standard of care was that provided for under s 168 of the Wrongs Act. It provides:

168 Liability of occupiers (1) An occupier of premises owes a duty to take all care that is reasonable in the circumstances to ensure that anyone on the premises does not suffer injury or damage because of— (a) the state of the premises; or (b) things done or omitted to be done about the state of the premises. (2) Without limiting subsection (1), in deciding whether the duty of care has been discharged consideration must be given to the following: (a) the gravity and likelihood of the probable injury; (b) the circumstances of the entry onto the premises; (c) the nature of the premises; (d) the knowledge the occupier has or should have about the likelihood of people or property being on the premises; (e) the age of the person entering the premises; (f) the ability of the person entering the premises to appreciate the danger; (g) the burden on the occupier of removing the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person. (3) Part 7.1 (Damages for personal injuries—exclusions and limitations) and part 7.3 (Contributory negligence), other than section 102(2), apply in relation to a claim brought by a person against an occupier of premises in relation to injury or damage. (4) This section replaces the common law rules about the standard of care an occupier of premises must show to people entering on the premises in relation to any dangers to them. (5) This section does not affect— (a) other common law rules about the liability of occupiers to people entering on their premises; or (b) any obligation an occupier of premises has under another Act or any statutory instrument or contract. (6) In this section: occupier, of premises, includes the lessor of premises let under a tenancy who— (a) is under an obligation to the tenant to maintain or repair the premises; or (b) could exercise a right to enter the premises to carry out maintenance or repairs.

218. The Commissioner falls within the definition of an occupier under s 168(6).

219. An issue at trial was whether Mr Meyers’ injuries were suffered because of the “state of the premises” within the meaning of s 168(1). The Commissioner submitted that the phrase “state of the premises” was to be read in the context of the definition of s 168(6) and so was confined to matters affecting the maintenance or repair of the premises themselves, being maintenance and repairs that the landlord owed an obligation to a tenant to carry out and in respect of which the landlord had a right to enter the premises for the purposes of doing so. There is force in the Commissioner’s submission.

220. For present purposes, the relevant “premises” is the place where Mr Meyers suffered his injuries, namely the common area of Warrock Court. In relation to that area, the primary judge said (at [196]):

… The common area of the property is an area where the Commissioner had direct responsibilities because it was not leased to any particular tenant. In my view, the presence of animals on a property may at least in some circumstances be part of ‘the state of the premises’. That was recognised in the obiter dictum of Penfold J in Hartigan v Commissioner for Social Housing in the ACT at [233]. Given the limited submissions of the parties on this issue and the lack of utility in determining the issue in light of the non-exclusive nature of s 168 … I will assume without deciding that the presence of the tenant’s dogs (or the dogs of his guests) on the common area of Warrock Court was part of the ‘state of the premises’ for the purposes of s 168. …

221. His Honour referred to his earlier decision in Harris and continued (at [198]):

… even if I did not assume that ‘the state of the premises’ in s 168 extended to the presence of dogs in the common areas of Warrock Court, there would exist a duty that extended to the presence of animals on the property. The relationship between occupier and entrant in relation to a foreseeable risk of injury is an established one: Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479. There was a foreseeable risk of injury in the common areas of Warrock Court from animals resident in the units of the property. I concluded in Harris that s 168 ‘was not intended to limit in any significant way the rights of entrants against occupiers’ and it is therefore possible for there to be a duty of care that exists beyond the scope of s 168. As a result, ‘it does not really matter whether the ‘state of the premises’ extends beyond physical features of the premises because s 168 does not limit the causes of action that may be brought against an occupier’ and the ‘test to be applied under s 168 and under the common law is, in substance, the same’: Harris at [146].

222. These passages disclose no error. In cases to which s 168 applies, the common law rules about the standard of care as stated by the High Court in Australian Safeway Stores Pty Ltd v Zaluzna (1987)162 CLR 479 are replaced, while other common law rules about the liability of occupiers are not otherwise affected: Wrongs Act, s 168(4) and s 168(5). In cases where s 168 does not apply, the standard of care is ascertained at common law and by reference to s 42 and s 43 of the Wrongs Act. They provide:

42 Standard of care For deciding whether a person (the defendant) was negligent, the standard of care required of the defendant is that of a reasonable person in the defendant’s position who was in possession of all the information that the defendant either had, or ought reasonably to have had, at the time of the incident out of which the harm arose. 43 Precautions against risk—general principles (1) A person is not negligent in failing to take precautions against a risk of harm unless— (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and (b) the risk was not insignificant; and (c) in the circumstances, a reasonable person in the person’s position would have taken those precautions. (2) In deciding whether a reasonable person would have taken precautions against a risk of harm, the court must consider the following (among other relevant things): (a) the probability that the harm would happen if precautions were not taken; (b) the likely seriousness of the harm; (c) the burden of taking precautions to avoid the risk of harm; (d) the social utility of the activity creating the risk of harm.

223. These provisions are contained in Ch 4 of the Wrongs Act which applies to “all claims for damages from harm arising from negligence, where the claim is brought in tort, in contract, under a statute or otherwise”: Wrongs Act, s 41. In Ch 4, the word “negligence” is defined to mean “failure to exercise reasonable care and skill”: Wrongs Act, s 40.

224. The primary judge concluded that the outcome of Mr Meyers’ case would not differ whether the standard of care was determined in accordance with the common law and s 43 of the Wrongs Act or in accordance with s 168 of the Wrongs Act.

225. On appeal, it was submitted that primary judge erred by equating the tests because s 168 of the Wrongs Act imported a significantly higher standard of care than that which would be imposed under Ch 4. Support for that submission was drawn from the words “all care” in s 168(1) which differed from phrase “reasonable care and skill” and the common law formulation of occupier’s liability.

226. I reject the submission. In my view, the words “all care” do not of themselves import a higher standard of care than that which might otherwise be applicable in a case involving negligence as defined in Ch 4 of the Wrongs Act. The words “all care” must be read in their context. The duty imposed under s 168 is a duty to “take all care that is reasonable in the circumstances”.

227. Whilst it is true that s 43 and s 168 otherwise differ in the expression of the matters that must be considered when determining what the duty of care in the particular case requires, Mr Meyers did not identify how those differences, or any one of them, could affect the outcome of this case. Accordingly, the primary judge did not err in proceeding from the premise that it would make no difference whether s 168 of the Wrongs Act applied or not.

Standard and breach

228. Underpinning Mr Meyers’ claim in negligence was the allegation that there were reasonable steps the Commissioner or Housing ACT officers could and should have taken to ensure the removal of the dogs, whether directly or with the assistance of DAS or by exercising contractual or statutory powers against Mr Rezo and the persons who unlawfully occupied unit 11 with him. As with the case against the second respondent, the submissions advanced on behalf of Mr Meyers focused more on the ends the Commissioner ought to have achieved (the removal of the dogs) rather than on the lawful means available to the Commissioner to achieve those ends.

229. Mr Meyers did not suggest the Commissioner had the power, as landlord, to physically seize the dogs (whether from the common area of Warrock Court or from within Mr Rezo’s unit) other than through the “agency” of a person having powers of seizure under the Domestic Animals Act. Nor was it argued that the Commissioner was to be regarded as the “occupier” of Mr Rezo’s unit for the purposes of the Domestic Animals Act and so was a person capable of consenting to Mr Ritzen seizing the dogs from unit 11 over Mr Rezo’s objection. Nor did Mr Meyers argue that the Commissioner could and should have, whether personally or with the aid of the police, used reasonable force to remove Mr Matas and Ms Skinner from Warrock Court on the basis that they were civil or criminal trespassers. Argument on the appeal proceeded on the basis that their removal from unit 11 (and so the removal of the dogs) depended on Mr Rezo complying with his tenancy agreement and withdrawing his permission for them to reside there, or Mr Rezo himself being evicted from unit 11 in accordance with the terms of the tenancy agreement.

Alleged failure to remonstrate

230. It was submitted that the standard of care required the Commissioner, by his agent Ms Diehm (or Ms Diehm in her personal capacity) to remonstrate more forcefully to DAS for the seizure of the dogs under the Domestic Animals Act. The breach was said to lie in Ms Diehm’s failure to take the issue to Mr Ritzen’s superiors and to her own supervisors rather than accept Mr Ritzen’s advice about the scope of his powers. Put bluntly, Ms Diehm was said to have been negligent in accepting Mr Ritzen’s “no” for an answer when she met with him on 16 February 2016.

231. The question of whether such a duty was owed and breached was not given any consideration by the primary judge. That is not surprising. The issue was not clearly articulated on the pleadings, nor was it adverted to in opening submissions, nor did it find expression in the manner in which Mr Meyers presented his case on the evidence.

232. On appeal, counsel for the respondents did not complain about the point being taken until the commencement of the respondents’ submissions, and then made no application for relief in relation to the complaint. No application was made by Mr Meyers to raise the argument, because, it was submitted, the case pursued at trial had been “crystal clear”.

233. In my view the argument is new. Mr Meyers requires the leave of this Court to advance it.

234. I would not grant leave for four reasons.

235. First, it is not sufficient for an appellant to point at the appeal stage to broadly cast allegations in a pleading under which a new and more precise allegation of duty or breach might fall. That is especially so in light of a response given on behalf of Mr Meyers for better particulars of the content of the duty owed to him by the Commissioner. In that response, Mr Meyers’ representatives asserted that the request for particulars was not a proper one. The response goes on to “assist” the Commissioner by simply restating the pleaded allegations in the same broad terms. In my view, the duty as now formulated on appeal could and should have been so formulated in response to the Commissioner’s proper request for particulars. Instead, the request for particulars was met with an obtuse response.

236. Secondly, the failure to articulate the allegation until the appeal stage has the result that this Court of Appeal does not have the benefit of the reasons of the learned judge at first instance in respect of it. The circumstances are such as to reduce the proceedings below to a “preliminary skirmish”: Coulton v Holcombe (1986)162 CLR 1 (Gibbs CJ, Wilson, Brennan and Dawson JJ) at [7].

237. Thirdly, it appears that had the issue been raised unambiguously at trial, its resolution may have turned upon questions of fact dependent upon the oral evidence. It was not put to Ms Diehm that she should have remonstrated further with DAS, including by taking the matter further through her own superiors or engaging directly with Mr Ritzen’s superiors. Whether or not Ms Diehm should have done so is a question of law (or at least a mixed question of fact and law). The question of whether or not Ms Diehm in fact did so and, if not, why not, are questions of fact in respect of which Ms Diehm or other persons might have given evidence in support of the Commissioner’s case.

238. Fourthly, acceptance of the argument would not alter the outcome of the appeal, especially when considered against principles of causation. It was not shown at trial that more forceful remonstration by the Commissioner to officers of DAS would have resulted in the removal of the dogs from Warrock Court in a time frame that would have prevented the attack on Mr Meyers. Even if Ms Diehm had remonstrated more forcefully, it would remain the case that for so long as the dogs were housed within unit 11 it would be necessary to obtain a warrant to enter the unit to seize them. Other alleged failures

239. Submissions concerning the remaining failures of the Commissioner focused upon the alleged non-compliance with cl 52 of the tenancy agreement and the failure to take the steps necessary to secure Mr Rezo’s eviction from unit 11 or to compel the removal of the dogs and trespassers by him.

240. Any common law duty of care deriving from cl 52 of the tenancy agreement could not exceed the scope of the contractual duty and so should fail for the same reasons given in relation to the contract claim.

241. The primary judge noted that the submissions before him did not provide any detail about what should have occurred and when: Meyers [208]. The same may be said of submissions on the appeal. After summarising the pleaded case, the primary judge summarised (at [210]) the steps that had been taken by Ms Diehm, culminating in the rental rebate strategy she had put in place as described earlier in these reasons. At the time of the attack on Mr Meyers, the time for Mr Rezo to complete a new rebate assessment form had not expired.

242. It was, as the primary judge said, axiomatic that the allegations of breach must be assessed prospectively and not through the lens of the serious injuries suffered by Mr Meyers: Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 at [128]. See also Coles Supermarket Australia Pty Ltd v Harris [2018] ACTCA 25; 278 IR 219 at [50] (Mossop, Loukas-Karlsson, Charlesworth JJ). His Honour concluded:

243. There were significant constraints upon the action that the Commissioner could take in relation to the common areas of Warrock Court. First, the common areas of the premises were open to the public. Given that the risk was one which arose from the bringing into the complex of the dogs by an occupier of a unit within the complex, the only means of controlling the foreseeable risk that one of the dogs may cause an injury to a person on the premises was through the exercise of its powers as landlord. While the Commissioner took steps to have DAS take action in relation to the dogs, the Commissioner and staff of Housing ACT had no power to seize and detain the dogs as against Mr Matas or Ms Skinner. Second, the action of the Commissioner was consistent with the framework provided for relations between landlord and tenant provided in the Residential Tenancies Act. Because that Act provides significant protections for tenants, it imposed significant constraints upon the Commissioner when dealing with the dogs in Mr Rezo’s unit. 212. Having regard to the nature of the complex and the limits imposed by leases and statute upon the manner in which the Commissioner could address issues arising in relation to the common areas, I do not consider that when considered by reference to the factors in s 168(2) or ch 4 of the Civil Law (Wrongs) Act (most obviously s 43(1)(c) and 43(2)) that the Commissioner breached its duty to the plaintiff. That is because the plaintiff has not established that the conduct was not reasonable for the purposes of s 168(1) or s 43(1)(c). 213. If contrary to what I have said above at [203], there was a duty of care upon the Commissioner relating to the Commissioner’s management of the presence of Mr Matas and Ms Skinner and its duty in relation to the management of Mr Rezo’s tenancy (the second and third subject matters for the duty of care contended for by the plaintiff), then I would nevertheless have concluded that that duty was not breached. Even more clearly than in relation to the common areas, the scope of action available to the Commissioner was limited by the terms of the lease to Mr Rezo and the statutory regime under the Residential Tenancies Act within which it operated. The Commissioner had no general power to seize the dogs and hold them as against their owner and no general power to enter Mr Rezo’s premises in order to get access to them. The Commissioner was limited to steps which could be taken under or in relation to the lease to Mr Rezo. As pointed out above, on each occasion when a complaint was made to the Commissioner about the presence or barking of the dogs, the Commissioner’s staff took action to address the issue. In doing so, the staff were significantly constrained by the provisions of the Residential Tenancies Act which regulated the relationship between landlord and tenant. The actions of the staff were also significantly constrained by the policy of the Commissioner to attempt to maintain the tenancies of its tenants. Clearly that policy was not an absolute obligation. However, even if, contrary to my conclusion above, a duty of care existed, it must have been one in relation to which the laudable social policy goal of maintaining the tenancies of the Commissioner’s tenants was to be taken into account in the assessment of reasonableness of the Commissioner’s conduct.

244. Submissions on the appeal did not identify any step in this reasoning said to be affected by appealable error. In my view the reasoning is correct.

CAUSATION

244. It may be accepted that if the dogs had been removed from Warrock Court and impounded before 15 March 2016, they could not have attacked Mr Meyers on that day. However it has not been shown that the Commissioner or any person within Housing ACT had a duty the scope of which required the removal of the dogs, as opposed to the taking of all care that was reasonable in the circumstances to address the risk presented by them.

245. As the primary judge said, in the absence of a proven breach, it was unnecessary to consider questions of causation: Meyers [191]. The primary judge nonetheless concluded (at [191]):

… having regard to the evidence about the process that would have been followed had the Commissioner at an earlier stage sought orders from the ACAT to remove Mr Rezo, Mr Matas and Ms Skinner or the dogs, the plaintiff has not established on the balance of probabilities that any breach caused the plaintiff’s damage. That is because on no view would it have been appropriate to commence proceedings in the ACAT prior to the expiry of a Notice to Vacate issued immediately after the expiry of the Notice to Remedy. The evidence referred to at [214]-[241] below demonstrates that the usual internal process of Housing ACT and the ACAT were such that no eviction would have been achieved prior to the attack on the plaintiff. Further, the evidence does not establish that the following of those usual processes (because of the delay that they entailed) would have involved a breach of cl 52 or that the earlier invocation of the termination and eviction process could have led to voluntary compliance on the part of Mr Rezo.

246. It is not necessary to extract the lengthy analysis of the evidence given at [214] – [241] of his Honour’s reasons. There was no specific challenge to that part of the reasoning on this appeal. Ground 4(e) is not established.

247. It follows that the appeal should be dismissed.

Orders

248. The orders of the Court are:

(i) The Notice of Contention is upheld.

(ii) The appeal is dismissed.

(iii) The appellant is to pay the respondents’ costs of the appeal. I certify that the preceding two hundred and twenty two [222] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Charlesworth

Associate:

Date: