RANDWICK CITY COUNCIL v FULLER

Court of Appeal (NSW)|1996-05-07|Before: Handley JA, Bignold J

RANDWICK CITY COUNCIL v FULLER SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HANDLEY, MEAGHER and POWELL JJA 7 May 1996, 7 May 1996

Local Government - regulation of animals Animals - regulation for public and private welfare Appeal and new trial - discretion of trial judge - injunction

The Council, in exercise of its powers under Local Government Act 1919 s289(e), which relevantly permits a council to control and regulate the keeping of animals on premises, resolved to restrict the number of cats kept at the respondent's premises to four. The respondent did not comply with the order. Council then commenced proceedings before the Land and Environment Court for an injunction to enforce the order. The Judge, in exercising his discretion, held that the hardship that would be suffered by the respondent outweighed that suffered by neighbours and the community and refused the injunction.

HELD: Upholding the appeal: (1) The Council had validly exercised its power; (2) The refusal of an injunction would result in the continuance of illegal conduct; (3) There was no basis on which the Court could properly refuse to grant an injunction to restrain gross and continuing disobedience of the Council's order.

This is an appeal by the Randwick Council from a decision of Bignold J in the Land and Environment Court who dismissed its application for an injunction to enforce an order made by the council under s289(e) of the Local Government Act 1919. This power relevantly permitted a council to control and regulate the keeping of animals on premises and, in particular, cats.

In exercise of this power, the Council resolved on 22 October 1992:

"(a) that the Council exercise its powers under s289(e) of the Local Government Act 1919 and restrict the number of cats to be permitted to be kept at premises 311 Botany Road, Kingsford to four (4);

(b) that a notice be served on Mrs Doris Irene Fuller giving her fourteen (14) days in which to comply with the Council's resolution".

Written notice of that resolution was given to Mrs Fuller on 4 November 1992. The notice was not complied with and after some delays and forbearances by the Council proceedings were finally commenced on 17 September 1993, in which the Council claimed an order that Mrs Fuller be restrained from keeping, or allowing to be kept, more than four cats at her home at 311 Botany Road, Kingsford.

Bignold J dismissed the Council's application in the exercise of his discretion, having concluded that the effect of the grant of an injunction claimed "would be devastating in a personal and emotional sense for the respondent and a serious risk to her well being". Balancing the personal hardship of the respondent that his Honour found against the hardship which he assessed would be suffered if the injunction was refused, his Honour concluded that at its highest any consequent

detriment would be no more than an inconvenience or irritation to Mrs Fuller's immediate neighbour, Mrs Brown. His Honour, however, found that Mrs Brown's complaints were not unreasonable, but held that they were relevant only in private nuisance and added:

"..hopefully they can be mollified by the respondent (that is Mrs Fuller) doing all she can to prevent her cats going onto Mrs Brown's property. Hopefully the respondent can resume neighbourly relations with Mrs Brown who has resided in her home for more than fifty years, the last thirty-five years as a neighbour of the respondent...".

There was no challenge by Mrs Fuller, who appeared before his Honour in person, to the validity or enforceability of the Council's resolution or the notice given pursuant to that resolution. The appeal by the Council to this Court challenges the manner in which his Honour exercised his discretion in refusing to grant the Council any relief in its application. Mrs Fuller did not give sworn evidence before the learned trial judge, and it would seem that her affidavit was not formally before the judge either. His Honour adopted the irregular course of allowing Mrs Fuller to say what she wished to say in opposition to the Council's proceedings. No objection was taken to this course by counsel appearing for the Council. It seems to me that the course, although irregular and indeed regrettable, had the result that Mrs Fuller gave unsworn evidence in the proceedings with the acquiescence of the Council and that the judge was entitled to act on that unsworn evidence.

In my respectful opinion, this irregular procedure ought not to be followed when litigants appear in person. The appropriate course is for the judicial officer to explain to the litigant that he or she is entitled to read and rely upon any affidavit that has already been filed on their behalf, and where appropriate they may give sworn evidence in the witness box of any additional facts they wish to place before the Court in support of their case, the evidence being either sworn to or affirmed as the litigant prefers. The litigant should also be made to understand that if that course is followed, he or she will be exposed to cross-examination to test whatever they have said by way of evidence, and it would not be inappropriate for the judicial officer to assist the litigant in person on matters of form when he or she is giving evidence. The litigant in person should also understand that he or she is entitled to make submissions to the Court about the evidence without having to do so from the witness box. This is a difficult distinction for most litigants in person to understand or observe. However this course is preferable to litigants in person being allowed to give unsworn evidence from the bar table without being subject to cross-examination where it is not clear what is submission and what is evidence.

Nevertheless, as I have said, the trial judge, with the acquiescence of counsel for the Council, permitted Mrs Fuller to say whatever she wanted to say in opposition to the council's application from the bar table. What she said as recorded in the transcript, is mainly evidence rather than submission. In the result Mrs Fuller's case of hardship by way of evidence and submission was fully before the judge.

Accepting Mrs Fuller's claims of hardship at their highest, as indeed the trial judge himself did, in my opinion they do not provide any basis on which a judicial discretion to refuse to enforce valid planning and public health laws could be exercised in her favour. The problems created by the large number of cats on her premises, which do not remain there but move elsewhere, and the deposits of urine and faeces on public property or the property of neighbours in

my judgment created a situation which cried out for effective but moderate enforcement of the law. I say moderate in the sense of restrained and not peremptory. The result of his Honour's refusal of relief is that Mrs Fuller's illegal conduct can continue unabated and indeed increase. With respect to his Honour the statements that he hoped that neighbourly relations would be restored, and that Mrs Fuller would do all that she can to prevent her cats going onto Mrs Brown's property, are a totally inadequate and inappropriate response to Mrs Fuller's defiance of valid action by the Council to enforce reasonable controls over the number of domestic pets kept by a person in a crowded modern urban environment. Mrs Fuller does not live in the country miles from any neighbour. She lives close to neighbours in the Randwick municipality. The slightest consideration for members of the public and neighbours will indicate to Mrs Fuller, and should have indicated to the learned trial judge, that her behaviour was totally unacceptable in a modern urban environment. The relevant power in the Local Government Act existed to prevent such unacceptable behaviour in the interests of the public and neighbours, and the law should have been enforced, as I say moderately and not peremptorily. I would therefore propose that the appeal be allowed, that an injunction should be granted as claimed by the Council but suspended for a period of four months from today's date.

There should be an order for costs in favour of the Council but Mrs Fuller should have a certificate under the Suitors Fund Act.

Counsel for Plaintiff: J F Kildea Counsel for Respondent: R Molinari (pro bono)

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Judgment (21 paragraphs)

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