Russell Kennedy Lawyers were recently engaged by Glen Eira City Council to prosecute numerous breaches of the Domestic Animals Act 1994 (Vic) (Act) relating to a dog causing a nuisance by continually barking.
The Accused is the occupier of a Caulfield North property and was charged with 16 breaches relating to a number of different days and times of section 32(1) of the Act which provides:
Dogs or cats creating a nuisance
- The occupier of any premises where a dog or cat is kept or permitted to remain must not allow that animal to be a nuisance. Penalty: 1 penalty unit.
Section 32(2) of the Act provides that a dog is regarded to be a nuisance if:
- it injures or endangers the health of any person; or
- it creates a noise, by barking or otherwise, which persistently occurs or continues to such a degree or extent that it unreasonably interferes with the peace, comfort or convenience of any person in any other premises.
The maximum penalty for each charge is 1 penalty unit (currently $165.22).
The Accused is the registered owner of a Shar Pei type dog known as ‘Sonny’.
In June 2019, Council received complaints from three occupants of adjoining properties relating to Sonny barking constantly throughout the day and night. The complainants noted that Sonny's barking caused them to:
- regularly wake from their sleep;
- not be able to get to sleep;
- not go outside; and
- not be able to watch TV or listen to music.
One complainant stated that he was unable to have a Father's Day BBQ because the barking made it unpleasant to sit outside and that he felt uncomfortable in his own backyard.
The Accused was put on notice by Council in June 2019 that it was an offence to allow a nuisance to exist and asked her to take steps to minimise any potential nuisance.
Log sheets were issued to each of the three complainants.
In mid-July 2019, Council received completed log sheets from the complainants detailing numerous counts of dog barking.
Infringement notices were issued to the Accused however these were not paid and were then withdrawn for prosecution in the Magistrates’ Court.
In August 2019, Council received further noise logs from the complainants which described the barking as non-stop and interfering with their peace of mind and comfort and causing elevated stress levels.
Magistrates’ Court Decision
The Accused entered a ‘not guilty’ plea in relation to all charges in November 2019.
On 16 December 2020 the charges were listed for contested hearing and the Accused at the commencement of the hearing changed her plea to ‘guilty’ in relation to all charges.
The Accused appeared in person and represented herself. The matters were heard before Judicial Registrar Rynne who found each charge proven.
Russell Kennedy Lawyers submitted to the Court the following:
- the effect on the complainants was profound;
- that the Court needed to send a message of specific and general deterrence; and Council would be seeking an order pursuant to section 32(3) of the Act.
Section 32(3) of the Act allows the Court where there has been a finding of guilt in relation to section 32(1) to make an order that the Accused take action to abate the nuisance.
The Accused submitted the following amongst other things:
- acknowledged that Council has approached her in relation to the nuisance complaints and has always been willing to assist Council when they approached her about the dog;
- indicated that she had spent upwards of $15,000.00 on training the dog, and that the dog is generally very obedient, but that the dog barks out of instinct;
- alleged the complainants aggravated the dog causing it to bark; and
- the dog was now kept inside.
Ms Rynne, urged the Accused to “strongly think about what other steps you can take” to stop Sonny barking.
Ms Rynne, adjourned the matter for a period of 12 months and placed the Accused without conviction on an undertaking to be of good behaviour for a period of 12 months.
Conditions of the undertaking include that the Accused must donate $1,000.00 to the RSPCA and pay $2,000.00 in legal costs.
The Accused was also ordered to ensure Sonny receives obedience training from an expert in excessive barking within 3 months and to keep Sonny inside between 8:00pm and 8:00am.
Dog owners should be aware that if their dog barks continually it is likely to be a nuisance and they may be issued with infringement notices and/ or prosecuted. Further, it is open for a Court under section 32(3) of the Act to order that a dog is removed from a property should that be the only way to abate the nuisance.