This table comes from Red 55 P-W. His Honour remarked, having set out the table, that Mr Wilson said that Widge, Ouzo and Cage were all trained pig hunters. Target was being trained. Tika was a pet. It appears that, after the attack on Tyra all the dogs (with the exception of Tika), were destroyed.
64Unusually, Mr Thomas Wilson was called by the respondents in their case. He gave his occupation as a drover and an accredited pig hunter. He said that he kept "a number of dogs" at 29 Garden Avenue in July 2006. Tika was his daughter's pet, and the other dogs were hunting dogs or being trained for that purpose. He identified the dogs in accordance with the table prepared by the primary judge. He also gave the ages of the dogs although, in the case of Target, there was later evidence that he was about eighteen months old at the relevant time. Mr Wilson said that, on the evening when Tyra was attacked, Ouzo was "not loose in the back yard"; he was in a separate cage. Jessie was a pup out of Tika and she was only five months old as at July 2006. It was suggested by his evidence that Mr Wilson had a number of other dogs that were owned either by himself or his son, but these were not at the premises on the day in question. They were normally kept out of town. Indeed, Mr Wilson maintained (although the primary judge did not accept him on this) that there were only two dogs, Tika and Widge, who were always at Garden Avenue. Mr Wilson said that about a fortnight before 19 July 2006 the majority of his dogs had been located out of Warren, but they had been brought back into town because there had been a theft of dogs from their normal location.
65Mr Wilson said that when he found the girl's body in the back yard, Target and Cage were loose in the yard. Target's collar was broken and it appeared that he had broken free. Widge was also running free, although Mr Wilson maintained that Jessie was still in the cage down the back and Tika was on a chain. Ouzo was in another compartment in a cage "down the back": Red 176.
66The primary judge made a number of findings of fact about the attack on Tyra, including the circumstances of her being in the rear yard of the Wilson's home. He observed that there had been traces of dead chicken found on Tyra's clothing, the inference being that this may have been some type of precipitator for the attack. Although his Honour could not ascertain precisely how the child obtained access to the rear of the Wilson property, it was either, he said, through or over the two gates on the western side of the house or through the house via the front and rear doors. His Honour favoured the former possibility, although the situation was not precisely clear.
67In any event, his Honour recited the circumstances of the discovery of the child after she had been attacked. Target was found with a red stain, apparently blood, on his fur. This was one of the dogs Mr Wilson had said was loose when he came upon the child in the rear yard. His Honour said (Red 59):
"The dogs were taken to the pound. Five of them were destroyed the following day. Tika was spared. On Snr Constable Walker's evidence there were seven dogs at the house when she attended. Mr Wilson only identified six dogs. Nothing of significance arises from the inconsistency.
There was no evidence to specifically identify which dog, or dogs, attacked Tyra. The fact that five dogs were destroyed perhaps raises an inference about their involvement; however, I think there would be too much speculation involved in that inference to make it reliable."
68The history of "aggressive" behaviour on the part of Mr Wilson's dogs conveniently starts with the evidence of a local woman, Mrs Moriarty. As with a good deal of the evidence on this topic, it was rather imprecise. Mrs Moriarty had lived at Garden Avenue for some 23 years. When her daughter (who was seventeen at the time of the trial) was a small child "many years ago", she had been bitten on the arm when she stepped off the school bus. This happened near the corner where the Wilsons lived. Mrs Moriarty did not witness the incident but was told about it by a neighbour's child. She said her daughter did not receive any treatment although she did ring the police about it. She was not able to identify the dog that had bitten her daughter.
69In the period between 2000 and 2002, Mrs Todhunter, the Council ranger, was asked what dealings she'd had with Mr Wilson and his dogs: Red 92. She responded:
"A couple of times I was called around for them barking. There was once one of his dogs had got out and chased a little kid. And another one was that there were so many dogs in his yard."
70There was one entry in Mrs Todhunter's notes that suggested on 4 August 2000 she had made an entry in relation to a phone call that "a man had been bitten by a dog". Her notes indicate that she went and spoke to the man who had been bitten and explained to him that he had to be able to identify the dogs before the Council could take any action. The notes indicate that "he wasn't real sure". Apparently there was a witness who saw the attack and Mrs Todhunter noted that she would follow this up, but there is no notation as to the consequences.
71Mrs Todhunter's notes for the remainder of the year showed that she was busy on a daily basis retrieving lost dogs, impounding dogs that were wandering the streets uncontrolled, and otherwise attending to various matters concerning any animal-related complaints. There were no further entries in 2000 related to Mr Wilson. On 5 January 2001, her notes record that there was:
"... a report of Tommy Wilson's black and white dog having a go at small child - mother talked to Tommy's daughter and she said she would tie it up. I went round. No one home. Dog in back yard but not on chain."
The dog was not further identified nor was there any further detail of the complaint, although Mrs Todhunter mentioned the same incident during her evidence in chief.
72Mrs Todhunter was asked (Red 98):
"Q: From your recollection during the time that you were working for the Warren Council how many times did you have cause to go and speak to the Wilsons in relation to their dogs?
A: Probably six to eight.
Q: And are you able to tell the Court why you went to the Wilsons' home to talk to them about their dogs?
A: It was either for their dogs barking or out on the street. There was one occasion a black and white Border Collie chased a little kid across the road."
The witness also said that if she ever saw the Wilson dogs roaming in the street she would impound them. It would then be necessary for them to be reclaimed from the pound by their owner. On one occasion she said that she rang the RSPCA because she did not consider that the Wilson dogs looked in good health. She thought that she had personally written out three infringement notices to Mr Wilson. One was for dogs roaming the streets and she was unable to remember what the others were: Black 97 T-W.
73Mrs Todhunter described visiting the Wilson residence to find boxers sitting on the verandah, just outside the front door. She described that, on her approaching the door, these dogs barked and growled at her. However, despite being shown photos of Mr Wilson's dogs at trial, the witness was unable to identify these boxers. Further, in my opinion, the barking and growling would seem unremarkable behaviour for dogs at home on their owner's property in response to someone unfamiliar approaching a front door, and not supportive of a peculiar 'dangerousness'.
74Moving to some time towards the end of 2002, there was evidence given by a Mrs Moy that, on an occasion when she was taking her granddaughter for a walk in her stroller, two dogs came across "snapping and snarling". This was on Garden Avenue itself. One of the dogs had bitten her on the leg. She "yelled at them to leave" and they did. Mrs Moy described the dogs as best she could, and said she had seen them in the area before. She thought that they lived at the Wilson house. She was shown photographs and identified a photograph of Target as being the dog that had bitten her. She said that she was definite about that: Black 168 R-W. She could not identify the other dog which she described as "a red dog".
75Two points can be made regarding Mrs Moy's evidence. As the primary judge observed (Red 52 G), it was simply not possible that the dog that bit Mrs Moy was Target. He had been at most eighteen months old in July 2006. As his Honour said:
"Mrs Moy therefore could not have seen him in 2002 or 2003."
76The other point is that there was no evidence that Mrs Moy reported the incident to the Council or that any Council officer or, for that matter, the police, were aware of the incident.
77There were no further instances of "aggressive behaviour" until a reasonably significant event occurred in 2004. This incident was dealt with at some length by the primary judge. In that year, the first respondent, Mr Kuehne, had been living with his de facto partner, Ms Fogden. Although Ms Fogden was unsure of when the incident occurred, it appears that it is accepted as having occurred some time in 2004. His Honour said (Red 47 M-W):
"In early 2004 Ms Fogden told Mr Kuehne about a dog from number 29 chasing their sons after they had left the school bus. Mr Kuehne telephoned Mr William Langby, who he knew to be the person at the Council concerned with animals. Initially Ms Fogden spoke to him but Mr Kuehne took over when Ms Fogden became 'huffy and puffy'. This referred to her aggressive tone. Mr Langby came to the Kuehne household where a similar pattern emerged. Ms Fogden was initially aggressive and Mr Kuehne intervened and told Mr Langby that it was 'not acceptable that kids are being chased on the street when getting off the bus'. The conversation was in the proximity of a number of neighbours.
After some discussion, Mr Langby said he would visit the Wilsons and 'sort the matter out'. Mr Kuehne saw Mr Langby drive to the Wilson residence and speak to Mr Tom Wilson for fifteen to twenty minutes. Mr Kuehne said that about six weeks later Mr Joel Wilson confronted him in a pub about reporting the matter to the Council."
78Ms Fogden said that there were a few other occasions when she had rung the Council about the dogs, but she was not able to be more specific as to when these were or what they related to: Black 110 B-H. It appears that Ms Fogden's two boys had to pass the Wilsons' home after they had alighted from the school bus as they made their way back to their home.
79Mr Kuehne gave evidence about this matter as well. He had not witnessed the incident, although he had been told, he said, that one of the dogs that had been chasing his boys up the street that afternoon was the dog, Tika. He also identified the dog Widge as a dog he had seen on the streets on occasions, or on the Wilsons' ute or out the front of their property. He was unable to identify the other dogs shown to him in a bundle of photographs, they being photos of the dogs that were impounded after the attack on Tyra.
80This incident became something of an issue for the primary judge to resolve. Apparently, on instructions, Mr Sheldon suggested to Mr Kuehne that the whole incident with Mr Langby had never occurred. Reliance was placed on a statement made by Mr Kuehne to a Legal Aid solicitor which was somewhat inconsistent with the evidence he had given. A similar inconsistency was raised in relation to Ms Fogden's evidence.
81However, the primary judge said that, at least in broad detail, he accepted Mr Kuehne's evidence that a complaint had been made to Mr Langby leading to his attendance at the Kuehne household, and was then followed by discussion between Mr Langby and Mr Wilson: Red 49 P-Q.
82That then was the substance of the 2004 incident. It does not seem that there were any further "aggressive" incidents involving the dogs until 2006, even though there were occasions when the Wilson dogs were out in the street.
83In 2006, several months before the attack on Tyra, there were, however, three incidents. It is not possible to ascertain the precise order in which the first two incidents occurred. One witness, Mrs Hollick, provided a statement which was tendered in Court without objection. The statement read:
"Several months before the incident in 2006 involving the young child, I was walking down Garden Avenue with some young children I was looking after. I am a family day-care mum. When we went past Wilson's place two of the dogs came out of his premises and walked around us in a circle as we continued to walk down Garden Avenue, Warren.
It was scary and I was terrified and when we got to the park in Garden Avenue only fifty metres from Wilson's house I rang the Council to complain about the dogs. I spoke to Bill Langby, I told him what had happened and he said 'I will go and see Mr Wilson'. On the way home I saw Bill Langby there."
84As I have said, Mr Sheldon raised no objection to the reading of the statement and indicated that he did not require the witness for cross examination. There was also an agreement recorded in the transcript (Red 220 P-R) that the reference to two of the dogs in the description was a reference to two of the dogs "involved in the incident on the night of Tyra's death".
85The second "incident" was related by Mrs Kelly, who had lived in Garden Avenue in 2006. A few months before the incident involving Tyra, Mrs Kelly said that she had been walking towards her daughter's home. Her daughter resided in a cul de sac behind Garden Avenue. She said (Red 216):
"I had a white bag in my hand and as I was walking past Tommy Wilson's I cut across the spare paddock and there were these two tan Boxer dogs and they were so close I could hear them breathing and growling as well until I got to my daughter's house. They followed me all the way to my daughter's house."
86Mrs Kelly said she was scared and when she arrived at her daughter's house she complained to her because the dogs "were never tied up". She also said that she had seen "two pig dogs on Mr Wilson's front lawn" about two or three times a week. Apparently she had some experience with pig hunting and she was able to identify the dogs she had mentioned as "pig hunting dogs". She also gave evidence that she had seen Mr Wilson driving a pig hunting truck. She had seen him bring the vehicle back into town with pigs on it and that this had happened on four or five occasions. She had also seen the Council pound truck up at Mr Wilson's place on occasions and had seen Mr Langby and Tommy Wilson talking on those occasions. There was one other occasion on a Saturday night when she said that Mr Wilson Jnr had three of his pig dogs in the cage of the truck and "they just went ballistic as I walked past". It does not appear that Mrs Kelly made any complaints to the Council about the incident that occurred a few months prior to the attack on Tyra. Nor does it appear that she made any complaint about the dogs to the Council on any occasion.
87The third incident was described by Mrs Clark, who lived near the Wilson's property. Mrs Clark said that dogs that were housed from time to time at the Wilson residence were out in the street and at night "they usually get into our garbage". She said she'd observed this happen three times a week, maybe more, over a period of twelve months or two years. She had seen the dogs but was not able to identify them.
88The particular incident she described occurred in the morning. She described it in these terms (Black 208 E-H):
"Yes, I'd just got the kids ready for school and we were renovating our house at the time. We had a front verandah without the railing on it and I walked to the end of the verandah and there was a brown Boxer standing at the end of the verandah. I think it scared me as much as I scared it. And it growled at me and one of the kids ran back inside and told Darren. He came out with a broom and threw it at it and it ran back up the road. But whether it went back to the Wilsons I don't know ..."
89Mrs Clark said she had seen this dog before and she was able to identify it as the dog Tika, which belonged to the Wilsons' daughter, Crystal. She said that she did not do anything following the incident and she did not make any observations of her husband doing anything.
90Mr Clark, however, gave evidence concerning the incident described by his wife. He said that he had contacted Bill Langby and asked him to come and do something about it. He said he had chased the dog out of the yard. His recollection was that both Mr Langby and Mr Love, his superior, came out to the home. He dated it as only days before the incident when Tyra had been attacked. He said there were discussions between Mr Langby and Mr Clark in an endeavour to identify the dog that had come into their yard. He described it as "a greyhound-cross looking dog". He saw the ranger and his superior heading towards Tommy Wilson's end of the street. He confirmed that he did not actually see the incident involving his wife, but he could hear it, and when he came out he observed a dog in the yard "being aggressive, growling". He described it as looking "more like a greyhound cross breed" than anything else. He identified, from the photographs shown to him, one dog which he believed was the dog in question. The dog he identified appeared on Exhibit K: Black 194.
91Mr Clark also gave evidence that he had spoken to Council officers prior to this incident complaining about the Wilson dogs being out on the street. In his cross examination, he agreed that he had "a bit of a bee in his bonnet" about people who did not keep dogs on leads.
92As to the conflict between Mr and Mrs Clark on the identity of the dog involved in the incident, the primary judge said (Red 53 R-W):
"The incident which occurred some days before Tyra's death was described by Mr Clark as involving a greyhound-cross. He identified the dog in Exhibit K (Target). When Mrs Clark gave evidence she said the dog involved was a Boxer belonging to Crystal Wilson. The fact that the Clarks each described a different dog does not, in my view, take away from the burden of their evidence, namely, that one of the Wilson dogs came to their yard and acted in an aggressive fashion. Mrs Clark also said that for a period of time the Wilsons' dogs used to visit at night to rummage through the garbage."
93It will be apparent from the whole of the evidence I have recounted that the issue raised in the Notice of Contention presents difficulties for the respondents' case. Quite apart from the difficulty of identifying with precision any dog involved in chasing or threatening people, and linking it to the attack on Tyra, it is by no means clear that the incidents I have described, with some arguable exceptions, could satisfy the test of "without provocation, repeatedly threatening to attack or repeatedly chasing people".
94The incident involving Mrs Moriarty's daughter occurred "many years ago" and the primary judge correctly regarded it as not significant: Red 54 F-J. The dog was not identified and, in any event, it was almost certainly not one of the dogs present when Tyra was attacked. Moreover, the matter was, it seems, never reported to the Council.
95The incident on 4 August 2000 when a man was said to have been bitten by one of the Wilson dogs led nowhere. Whether it was one of Mr Wilson's dogs and, if so, which one, was never revealed by the enquiries made by Mrs Todhunter.
96The third incident related to Mrs Todhunter's report of a dog "having a go" at a small child. This fell within the description of, at least, a threatened attack. It seems the dog belonged to Mr Wilson's daughter and that "she said that she would tie it up".
97The next incident related to Mrs Moy, and she was certainly threatened and indeed bitten by a dog. As I have mentioned earlier, she was clearly wrong in her identification of the dog and the matter, in any event, was not brought to the Council.
98In my opinion, these various matters in 2000-2002 were relatively sparse and were sufficiently ancient in historical terms to be of little significance to the issue raised by the Notice of Contention.
99The incident involving Mr Kuehne's children being chased by some dogs in 2004 was, on the other hand, capable of representing an incident that was plainly within the statutory definition. Moreover, it was reported to the Council. It was acted upon by Mr Langby attending at the Wilson property and speaking to Mr Wilson. It does not appear, however, that the incident was repeated so far as Mr Kuehne's household was concerned. It seems that the child, Tyra, was friendly with several of the dogs at the Wilson property. Ms Fogden said that Tyra had never seen Tika and Squizzy (a dog not present at the time of the attack) act aggressively towards the child or, for that matter, any other person.
100There were no further instances of aggressive behaviour until 2006. Mrs Hollicks' statement shows that when she walked past the Wilson home, two of the dogs came out of the premises and walked around her in a circle as she continued to walk along Garden Avenue. It is doubtful whether this description would qualify as an act of threatening to attack or chasing. The matter was reported to Council, and Mr Langby, as the evidence shows, visited Mr Wilson about the incident.
101Mrs Kelly's description of two tan Boxers "breathing and growling and following" her to her daughter's house again would not necessarily answer the description of threatening to attack or chasing. There was no complaint to the Council on this occasion and the particular dogs were not identified.
102The final incident related to Mrs Clark finding one of the dogs on her verandah. Once again, it is equivocal as to whether the dog's behaviour would answer the description of "threatening to attack". It ran away when confronted by Mr Clark. Mrs Clark's description that "it scared me as much as I scared it" and that then the dog "growled" at her did not necessarily amount to a threatened attack. This incident was reported to the Council and the Council officers, it seems, attended on Mr Wilson after the report. It also appears clear from Mrs Clark's evidence that the dog was Tika, Mr Wilson's daughter's pet. This dog was not involved in the attack on Tyra.
103Thus, from this brief analysis, it will be seen that there were three arguable incidents in 2006 that may have qualified, although only two were reported to the Council under the section. There were no incidents in 2005. In 2004 there was the one incident involving Mr Kuehne's children being chased. It clearly qualified but there was no repetition of it in that year. There were no incidents in 2003. There was one incident in 2002 involving Mrs Moy, but this was not reported to Council and she was clearly mistaken in identifying the attacking dog as Target. Between 2000 and 2002 there were two, possibly three, incidents. If the analysis is confined to the period between 2004 and 2006, there was, on one view of it, only the one incident involving Mr Kuehne's children that definitely answered the statutory definition. Taking an expansive view of the evidence, there were possibly three further incidents known to the Council in the three year period between 2004-2006, including one "chasing" incident.
104I would conclude, based on the evidence I have recited, that the respondents have failed to make out a case that justified the making of a declaration on the basis that a number of the dogs present at the time when Tyra was attacked had, between 2004 and 2006, without provocation, repeatedly threatened to attack or repeatedly chased people.
105The respondents' written submissions referred to general findings made by the primary judge that, it was argued, suggested a justification for a declaration on the alternative basis. These included statements suggesting that the dogs were "roaming the streets", that they were "not properly secured", that Mr Wilson's property did not have "a child-proof fence", that the dogs were "untethered in the front yard", and that there were "many incidents with the dogs". As I have said, quite apart from the difficulties of identification, these findings really did not address the issue. They were, at best, findings related to the dogs being a nuisance in the neighbourhood.
106Similarly, the written submissions made reference to the various entries in Mrs Todhunter's notes and the diary entries that were tendered as the remainder of Mr Langby's notes. None of this material added to the evidence I have already analysed. There was also evidence from William James Langby Senior. He was the father of Mr Langby the Council ranger. He was scarcely a satisfactory witness, as he himself acknowledged. He had a number of serious health problems, which he described, and said (Black 158 L-M):
"It's brought me undone, can't remember a bloody thing."
He was asked to do the best he could. He said:
"Well I can, all I can say is I can recollect that I lived one vacant block, one road away from where the little girl got killed. And I can't say what the dog yard was like, I've never been inside the yard. But he used to - and I also realise that what I say it [sic] an ounce of difference to what you fellows do or not because I know it's going to come out in the wash where - some way it's got to come out in the wash. And I think the dog was - belonged to the young fellow which killed the kid or the kid had died from a heart attack or whatever, died from scared to death or petrified or something [sic]. But if a dog can get out, a kid can get in and a dog can get out. And we, we lived as I said lived in and we had a fence around our yard and the dogs used to come to our place, jump over the fence, scare hell of my wife [sic]. And that's probably the only ...
Q: How often did that occur:
A: Not very often but it happened.
Q: What dogs are you referring to?
A: Oh well he had about 20 of them so which one would you pick?
...
Q: So when you observed these incidents of the dogs from the Wilson's property being out and on occasions jumping your fence what did you do?
A: I just - all I did was just walk outside and the dog would just shot through again. But dog - the dog was very, very, very - oh I don't know you - timid I suppose in a lot of ways but you just - that's the dog."
107Mr Langby Snr said he reported "it all" to the shire a couple of times. He added:
"Young Bill said 'We can't do anything about it - 'cause it was his to [sic] - problem. The Shire wouldn't do anything about it and everything."
108Mr Langby Snr said he could not remember when he had made any such report but said he always spoke to Mr Wielinga, the general manager of the shire. He added that he thought he'd probably rung two or three times but "sometimes it was over a tree and the kids in the school bus and sometimes it's over dogs": Black 160 D-F. The witness also complained that the dogs were "messing up" his lawn.
109I do not consider that Mr Langby Snr's evidence has any real significance for the matters raised by the Notice of Contention. It is a very slender reed on which to base any finding of substance.
110Mr Sheldon raised another argument in the context of the Notice of Contention. He argued that, as Mr Clark's evidence showed, potential witnesses were occasionally unwilling to be involved in any court proceedings that might follow from the Council's declaration of a dog as a dangerous dog. Mr Sheldon argued that this type of attitude "hamstrung the Council". I do not think there is any merit in Mr Sheldon's argument. If there was evidence that warranted the making of a declaration, it would have been the duty of the Council to proceed to do so, even if potential witnesses were reluctant to appear at a subsequent court hearing. The recalcitrance of a potential witness would be no justification for failing to make a declaration if it were otherwise clearly warranted.
111If I be wrong in my conclusion that there was insufficient evidence to justify the Council making a declaration on the alternative basis, I would nevertheless find that s 43A Civil Liability Act stood fairly and squarely in the way of the respondents' action succeeding. I will now turn to address this matter.