‘Izzy’ loses in Court of Appeal; possible special leave application to High Court pending

izzyJudgement was delivered this morning by the Court of Appeal of the Victorian Supreme Court in the matter of the dog, ‘Izzy’ (see the Panel’s Facebook posts of 17 June and 6 September 2014). ‘Izzy’ lost the appeal. The appeal principally concerned questions of procedural fairness about the manner in which the Council arrived at its decision to destroy Izzy under section 84P(e), Domestic Animals Act 1994. Following conviction of Izzy’s owner in the Magistrates Court for breach of section 29(4) as the owner of a dog where the animal causes serious injury to a person, a discretion was enlivened in the City of Knox under section 84P to destroy the dog.

Even though a dog, for example, may only have nipped or cut the skin (without any puncture wound whatsoever), it is deemed a ‘serious injury’ under the Domestic Animals Act 1994. This is because a ‘serious injury’ is defined under the Act to include a laceration of the skin. While such an ‘injury’ or say a cut would not be remotely viewed as a ‘serious injury’ according to common conceptions of a ‘serious injury’, the Domestic Animal Act 1994 provides for this absurdly low threshold for a ‘serious injury’.

Further, increasingly Councils do not seek a destruction order (under section 29(12)) from the Court when the owner’s offence under section 29 is found proven. Instead, they reserve themselves the exercise of the discretion to destroy the dog under section 84P. If a destruction order had been sought and made by the Magistrates Court, a simple appeal to the County Court could have been filed. However, if the Council makes a decision under section 84P, it can only be challenged on administrative law grounds in the Supreme Court, a wholly more challenging and expensive proceeding.

An undertaking has been sought and given by the solicitors of the City of Knox that Izzy will not be killed for a period of seven days, pending the possible filing of a special leave application to the High Court of Australia for leave to appeal.

Panel senior and junior counsel are considering the question of making a special leave application at the time of this post.

A copy of the 33 page judgement of the Court of Appeal will be posted shortly to our ‘Cases of Interest’ section.