What to do about a barking dog

Is your neighbour’s dog going above and beyond the call of duty of a good guard dog?

If a dog is barking persistently and is unreasonably disturbing your peace, here are some steps you can take to resolve the issue. 

Contact the Owner

Your first step should be to contact the owner of the dog directly. Please consider that the owner may not know the extent of the barking, so the best approach is a friendly conversation or polite letter.

Contact the Local Council

If you have not had any luck with contacting the owner directly, it may be time to make a complaint to your council.

If the barking really is excessive, your neighbours may have already made complaints. It might be a good idea to have a chat to other neighbours to see if they have an issue with the barking and would also make a complaint or keep records of the barking. The Council may require you to provide a diary recording the barking, or may require corroborative evidence from other neighbours.

Generally, the Council will then contact the owner informally about the issue.

If this fails to resolve the issue, the Council may investigate the issue further and can take formal action under the Dog and Cat Management Act 1995 (SA). However, this could likely be a lengthy process.

The Council and the Dog and Cat Management Act 1995 (SA)

Section 45A (5) of the Dog and Cat Management Act 1995 (SA) (‘the Act’) provides that:

“A person who owns or is responsible for the control of a dog is guilty of an offence if the dog (either alone or together with other dogs, whether or not in the same ownership) 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 a person.”

The expiation fee is $315 and the maximum penalty is $1,250.

After a thorough investigation, if a Council finds that a dog is a nuisance and has created noise by barking or otherwise in circumstances that would constitute an offence under section 45A(5) of the Act, the Council or the Dog and Cat Management Board may decide to make “A Control (Barking Dog) Order” under sections 50(1) and 52 of the Act.

This order would require all reasonable steps to be taken to prevent the dog repeating the behaviour giving rise to the order, and would also require the dog and/or its owner to undertake an approved training course.

If the dog owner contravenes this order, and if the matter is taken to Court, they may be found guilty of an offence with a maximum penalty of $2,500. Section 47 of the Act provides the Court with the power to make orders in criminal proceedings.

If the Council does decide to take the matter to Court as a criminal proceeding, you may be required to give evidence.

Community Mediation Service

If the issue has not been resolved by approaching the owner or contacting the Council, it may be worth seeking assistance from a Community Mediation Service. However, there is no obligation for anyone to attend, so an unwilling owner may refuse to engage in a mediation.  Further, if any your and your neighbour reach an agreement, the Community Mediation Service has no power to ensure the parties adhere to that agreement.

Civil Action

Finally, failing the above recommendations, you may wish to initiate civil proceedings in the minor civil jurisdiction of the Magistrates Court.

Your first step should be to write a letter of demand or pre-action notice under Rule 21A(1) of the Magistrates Court Civil Rules 2013 (SA). This letter or notice must give the dog owner no less than 21 days after service of your intended claim.

The next step is to then file a Form 3B “Neighbourhood Dispute Application” under Rule 26 of the Magistrates Court Civil Rules 2013 (SA).

You can seek various orders using this application, for example, an injunction to prevent the dog from barking or a payment of monetary damages.

Once the Application is filed with the Court, the Registrar will fix a date, time and place for a directions hearing. They will give at least 7 days’ notice in writing to the parties, and will serve a copy of your filed Form 23C and any attached documents on the owner of the dog.

The owner of the dog may then file and serve a response.

At the directions hearing, the Court may order various procedural directions, for example, requiring certain documents to be provided to the other party, or listing the matter for a mediation, or setting a date for the hearing of the application.

In the minor civil jurisdiction, parties are self-represented in Court and the process is quite user friendly. However, Clelands Lawyers are able to assist you with the process by drafting and filing documents, and providing advice on the court processes.

Shannon McMenamin

June 2018