Nobbs v Hackett and Ors [1999] NSWSC 379 (16 April 1999)

Last Updated: 27 April 1999

NEW SOUTH WALES SUPREME COURT

CITATION: NOBBS v HACKETT & ORS [1999] NSWSC 379

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): 12373/98

HEARING DATE{S): 29/03/99, 31/03/99, 15/04/99, 16/04/99

JUDGMENT DATE: 16/04/1999

PARTIES:

Kaylene Lesley Nobbs (Plaintiff)

Leanne Hackett (First Defendant)

Brett Anthony Bell (Second Defendant)

Royal Society foer the Prevention of Cruelty to Animals (Third Defendant)

Peter Smith (Fourth Defendant)

JUDGMENT OF: Adams J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:

Mr C Papayanni (Plaintiff)

Mr R Lancaster (First Defendant and Third Defendants)

SOLICITORS:

Ramrakha Jenkins (Plaintiff)

Smythe & Mallam (First and Third Defendants)

CATCHWORDS:

Search warrant

Prevention of Cruelty to Animals Act 1989

effect of invalidity

other powers of entry

search and removal of animals

whether entry lawful despite invalidity of warrant

prerequisites for exercise of statutory powers

ACTS CITED:

Prevention of Cruelty to Animals Act 1979

Search Warrants Act 1985

Marketing of Primary Products Act 1927

Police Offences Act 1901

Justices Act 1902

DECISION:

Principal relief sought by plaintiff is refused, subject to orders.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

12373/98

ADAMS J

16 APRIL 1999

KAYLENE LESLEY NOBBS v LEANNE HACKETT & ORS

JUDGMENT

1 ADAMS J: The plaintiff seeks a declaration that a search warrant issued by a Justice pursuant to s 27 of the Prevention of Cruelty to Animals Act 1979 (the Act) and part 3 of the Search Warrants Act 1985 granted on 22 September 1998 and executed the following day should be declared invalid and of no effect together with consequential relief. On 29 March 1999, when this matter came on for hearing before me, I delivered a judgment on the primary question to the effect that the warrant is invalid on its face. In purported exercise of the warrant certain animals, documents, and things were seized. Subject to certain conditions, I ordered the return of the documents and things leaving for later decision a determination of the appropriate relief concerning the animals.

2 In determining the appropriate relief, it has been submitted to me by Mr Lancaster, counsel for the first and third defendants, that ss 26 and 26A of the Act permitted the officers to enter the plaintiff's premises and take the animals which were removed together with those documents and things that will afford evidence of the commission of an offence under the Act or regulations whether committed or for which there are reasonable grounds for believing it has been committed. Section 26(1) of the Act is in the following terms -

Where an officer who is the holder of a prescribed authority suspects, on reasonable grounds, that an offence against Part 2 is being, has been or is about to be committed in respect of an animal, the officer may:

(a) take possession of the animal,

(b) remove the animal to such place as he thinks fit, and

(c) retain possession of the animal:

(i) except as provided in subparagraph (ii)-for a period not exceeding 30 days from the date upon which the officer takes possession of the animal under paragraph (a), or

(ii) where, within the period referred to in subparagraph (i), proceedings are commenced in respect of the offence, and unless the court before which the proceedings are being taken otherwise directs - until the proceedings are finally determined,

but nothing in this subsection limits the operation of subsections (2)-(5).

Sub-sections (2) and (3) permit possession and removal of an animal where, in the opinion of the relevant officer, it had not been provided with proper and sufficient food or drink during the previous 24 hours and is not being provided with that sustenance and where the animal is so severely injured, diseased or in such a physical condition as to require veterinary treatment which is not being provided. Section 26(4) permits removal of an animal which is in such a state that it is cruel to keep it alive in order that it be humanely killed and s 26(5) permits a relevant officer who suspects on reasonable grounds that the conditions in subsections (1) (2) (3) and (4) have been satisfied to inspect and examine the animal in question. Section 26(7) provides as follows -

An officer who is the holder of a prescribed authority may, for the purpose of exercising a power conferred upon him by subsection (1)-(5), enter or remain in or on premises and, where he does so enter or remain, shall produce the authority, if requested to do so by an occupier of the premises, for inspection by that occupier.

In this case the RSPCA officers entered the premises forcibly, the plaintiff then (as it happened) being absent in Newcastle. If the warrant had been valid, then such entry would have been lawfully authorised by it. Counsel for the plaintiff, Mr Papayanni, submitted that because the defendants purported to enter pursuant to the warrant, the mere fact that there may have been an independent power of forcible entry is irrelevant as they were not purporting to exercise that power. He also submitted that, at all events, the power of entry conferred by s 26(7) did not permit entry into private property or a dwelling house on private property without the permission of the owner or occupier.

3 In Egg Marketing Board v Cassar [1978] 1 NSWLR 90, the question arose whether the Board was authorised to forcibly enter and search certain premises pursuant to regulations made under the Marketing of Primary Products Act 1927 which provided as follows -

34(1) For the purposes and subject to the provisions of the Act any officer, employee or servant of the Board duly authorised by the Board in that behalf may at all reasonable times upon production of such authority enter and search any land, premises . . . in or upon which eggs are being, or are suspected of being, produced . . . and may inspect any eggs. . . and may take samples of eggs . . . and may inspect any books . . . or writings therein . . .

Waddell J, following Grove v Eastern Gas Board [1952] 1 KB 77 and Fowler v Taylor [1957] VR 593, held that if a right of entry is given by statute, prima facie, that includes a right to make a forcible entry and the officer authorised to enter is entitled to use whatever force is reasonably necessary in order to effect an entry. The requirement to produce the authority did not mean that a person must be present on the premises to whom it could be produced, rather that the document should be produced, if required.

4 I am of the view that Egg Marketing Board v Cassar is correctly decided and that I should apply the rule of construction adopted by Waddell J to the interpretation of s 26(7) of the Act. The observation by Deane J in Fowler v Taylor [1957] VR at 596 that if the officer could enter only with the consent of the occupier, no statutory authorisation would be required and the power of entry given by the Act would be otiose, is, with respect, obviously correct.

5 It was submitted that the provision in s 27 of a power to obtain and issue search warrants indicates that s 26(7) should be read down since otherwise the former provision would be unnecessary. However, s 27 seems to me to cover quite different ground to that covered in s 26. First, the application for a search warrant may be made by any person and is not confined to a relevant officer and this difference remains significant despite s 27(3) authorising the issue of a search warrant only to a relevant officer, since the prerequisite for the application is that the person has reasonable grounds for believing that there is, in or on any premises, an animal in respect of which an offence against the Act or regulation is, inter alia, suspected of being committed whilst the officer authorised by the search warrant to enter and search premises and inspect and examine animals or registers is not required to have any reasonable grounds for any belief. Second, the warrant authorises entry and search, inspection and examination in connexion with the suspected offence, whilst the powers pursuant to which the authority to enter conferred by s 26(7) are limited to animals where, in the opinion of the relevant officer, specified adverse conditions are demonstrated and particular courses of action permitted.

6 I am therefore of the view that the powers given by s 26(7) of the Act are not abrogated merely because the first defendant purported to act pursuant to a warrant obtained under s 27 which was, as it happened, invalid. The plaintiff submits, however, that even if s 26 would have authorized entry and seizure of the animals, as the powers given by its provisions were not actually relied on by the first defendant but rather reliance was placed on the invalid warrant, these acts remain unlawful.

7 As a matter of construction, there is nothing to show that the powers provided by s 26 are abrogated or qualified in the manner suggested. In particular, the officer is not required to state to any occupier that the entry is made pursuant to s 26 for the purposes of sub-sections (1) to (5) or any of them although his or her prescribed authority must be produced if requested (s 26(7)). In my view that the section makes specific reference to what is to be produced on request, falling short of a statement of grounds for the entry, strengthens the conclusion that such a statement is not a prerequisite to permissible forcible entry. As it happens, no request was made for inspection of the first defendant's authority or for the reasons for entry. Of course, no person was present at the time of entry, the plaintiff returning to the premises after the first defendant had been there for many hours. A failure to state any grounds for entry onto the property or for remaining there at that time could not render these acts unlawful at all events. Nor to my mind did remaining on the property and removing the animals become unlawful merely because (on the plaintiff's account) she demanded that the animals not be taken. At all events, as the plaintiff admits, she was handed the Occupiers' Notice shortly after her arrival that referred, although under cover of the warrant, to the exercise by the first defendant of "all such powers under section 25 and 26 of" the Act. Although a failure to sufficiently state the reasons for entry and remaining on the property and removal of animals may provide a defence to obstruction under s 28 of the Act, I am of the view that, providing those acts fall within s 26, they are not unlawful even though such a statement is not made. Mr Papayanni of counsel for the plaintiff submitted that the opposite conclusion was compelled by Christie v Leachinsky [1947] UKHL 2; (1947) AC 573. In that case constables arrested the plaintiff in purported exercise of a right of arrest for a particular offence which, however, was not, in the circumstances, one for which a person could be arrested and sought, later, to justify the arrest by evidence that they suspected him of another offence for which he could be arrested but which they did not mention at the time. The House of Lords decided that, at common law, any arrest on suspicion of the commission of a crime was not lawful unless, at the time of the arrest, the person was informed of its reason, unless the general nature of the alleged offence for which he is detained must otherwise have been made known to him (see eg [1947] AC per Viscount Simon at 587). I am of the view that, in the circumstances, the plaintiff must have known of the general nature of the reasons for which the first defendant had entered and remained on her premises and why the animals were being removed, even on her own account. At all events, as s 26 does not require for the lawful exercise of the powers it grants that the occupier of the premises or the owner of the animals be informed of the grounds for their exercise, Christie v Leachinsky is distinguishable.

8 Accordingly, providing the prerequisites for entry under s 26(7) are satisfied, forcible entry by the relevant officer was in this case authorised by the Act. Before moving to consider whether those prerequisites were satisfied, I should deal with s 26A of the Act. Section 26A(1) provides -

An officer who is the holder of a prescribed authority and who is lawfully in any place investigating a suspected breach of this Act or the regulations may seize:

(a) a thing with respect to which an offence has been committed, or

(b) a thing that will accord evidence of the commission of an offence, or

(c) a thing that was used, or is intended to be used, for the purpose of committing an offence.

9 The powers conferred on a relevant officer by subs 26(1) to (5), which give rise to the power to enter premises under s 26(7) do not include a power to investigate a suspected breach of the Act or regulations. To my mind, such a power can only be exercised pursuant to a search warrant obtained under s 27. Consequently, the prerequisite for seizure under s 26A is not satisfied here, there being no valid warrant. Thus, the officer cannot rely on s 26A to authorise the seizure or retention of the things and documents purportedly seized and retained pursuant to the warrant obtained by her. I have already made orders as to these items and it is unnecessary to deal further with this issue for present purposes.

10 In this case, the relevant officer is the first defendant, Ms Leanne Hackett. "Officer" is defined relevantly in s 4 as being "an officer of an approved charitable organisation who is a special constable within the meaning of the Police Offences Act 1901". Such an organisation means "a charitable organisation for the time being approved by the Minister". Ms Hackett discloses in her affidavits that she was at the material time an inspector employed by the third defendant which was approved by the Minister on 15 April 1998 (NSW Government Gazette No 71, 24 April 1998). On 29 August 1995 Ms Hackett was appointed a special constable and, at a date which is uncertain but covered the material times, she was authorised by the Minister to exercise the powers conferred by s 25(1) and s 26 of the Act.

11 Accordingly, I am satisfied that at the material times Ms Hackett was "an officer who is the holder of a prescribed authority" within the meaning of s 26. The next question is whether the prerequisite for the exercise of the powers conferred by subs 26(1) to (5) were satisfied in the circumstances.

12 Taking first the requirements of s 26(1), the officer must suspect on reasonable grounds that an offence against Part 2 of the Act is being, has been or is about to be committed in respect of an animal.

13 Ms Hackett deposed that on 22 May 1998, she spoke to one Alex Brittain, an employee of Denistone Veterinary Clinic. Mr Brittain told her that the plaintiff regularly brought cats and kittens into the surgery requiring veterinary treatment, that he had seen a number of her cats recently which had to be euthanased because it was cruel to keep them alive and that pathology results on cats brought by the plaintiff to the surgery demonstrated a number of infectious diseases namely FIP (Feline Infectious Peritonitis), FIV (Feline Immune-deficiency Virus), FELV (a form of leukemia) and FTLV (a feline respiratory disease).

14 Mr Brittain told Ms Hackett that the plaintiff's address was 84 Gurney Road, Villawood and that he understood the plaintiff to have over fifty cats. Ms Hackett attended the premises on 10 June, 15 June and 16 June 1998 but no one was present on these occasions. On the last of these days, the plaintiff telephoned her and asked why she was making enquiries. The plaintiff asserted that nothing was wrong with her cats and that she was too busy to allow Ms Hackett to come to her premises to inspect them, saying that she would not be available for two weeks. On the assumption, and I think that it is reasonable to infer, that most, if not all, of the cats at the plaintiff's premises on 23 September 1998 were also there on 1 July 1998, the statement that there was nothing wrong with them was untrue. On that date, Ms Hackett attended the plaintiff's premises with RSPCA Inspector James Paton. She saw a cattery which was a large shed about the size of a double garage, in which there were about seventy cats. Many cats and kittens were coughing and sneezing with runny noses and weepy eyes. Although they were generally not skinny, many displayed flu-like symptoms and some appeared to be missing an eye. Many cats were running free between the cattery and the house in which were more cats, one of which was a tortoiseshell three or four months old kitten, which was very thin and had very watery eyes and scabs on its head.

15 The plaintiff told Ms Hackett that most of the cats had been rescued from fires two years previously, that the cats were all desexed, that she was not aware of the codes of practise that existed for operating a cattery, that she had no records showing which cats were ill and which were being treated and at all events, there were no names enabling identification. The plaintiff implicitly accepted that some of her cats had FIP and other diseases but commented that simply because "you've been diagnosed with a terminal illness doesn't mean you should be put to sleep".

16 On or about 4 or 5 September 1998, Ms Hackett spoke to one Cathy O'Neill, the veterinarian consulted by the plaintiff. Ms O'Neill told Ms Hackett that, following the visit to which I have referred, in July the plaintiff had told her that she had removed a lot of cats out of the premises and cleaned them up. Ms O'Neill stated that she had been dealing with the plaintiff for some time and there had not been any problem with her animals until the last eighteen months, ever since she took possession of a colony of cats seized by Animal Welfare and given to her. She said that the plaintiff took cats in from a variety of places, including intercepting cats at the RSPCA carpark before they were surrendered into the shelter. Ms O'Neill said that the plaintiff brought cats to her when they became sick and diseased and that this happened every week, sometimes only a couple and sometimes ten or more. She said that they were brought in for a number of conditions and that an increasing number of the plaintiff's cats and kittens had to be euthanased because they had debilitating illnesses. Ms O'Neill said that she did not routinely vaccinate the plaintiff's cats because, as she thought, there were such a number that the plaintiff could not afford it.

17 Several days later, Ms Hackett attended at Ms O'Neill's veterinary clinic and was provided with copies of various veterinary notes and records which were annexed to her affidavit. Amongst other things, Ms O'Neill told her that the plaintiff had recently brought in a male ginger kitten with a growth or polyp in its ear requiring further treatment and investigation but that it had not been returned and that she had also seen a cat with a fractured jaw which she suspected was caused by the application of physical force by the plaintiff. (I interpolate here that neither Ms O'Neill nor the plaintiff gave evidence about this and I do not regard this statement as evidence of the truth of the matter; on the other hand, it was material which Ms Hackett was entitled to consider in connexion with, at least, the reasonable suspicion referred to in s 26(1) of the Act.)

18 About a week later, an officer of the RSPCA, in response to an advertisement in a newspaper, attended the plaintiff's premises to purchase a cat, without disclosing his identity. The plaintiff provided the officer, together with the cat purchased, a feline vaccination record which, it was reasonable to suspect, was a forgery.

19 Ms Hackett deposes that as a result of the matters which I have set out above, she believed that in or on 84 Gurney Road, Villawood, the plaintiff's premises, there was an animal or there were animals "in respect of which an offence against the Prevention of Cruelty to Animals Act 1979 or regulations had been or may have been committed or was about to be committed". In particular, she "believed or suspected at the time of making the Application for . . . [the] search warrant" that -

(i) the occupant of 84 Gurney Road, Villawood was committing offences against Section 5(3)(c) of the Prevention of Cruelty to Animals Act 1979; and

(ii) the occupant of 84 Gurney Road, Villawood was or may have been committing offences against the Act, the Regulations and/or the Code of Practice relating to the care and management of breeding cats.

Section 5(3)(c) of the Act reads as follows -

(3) A person in charge of an animal shall not fail at any time:

(c) where it is necessary for the animal to be provided with veterinary treatment, whether or not over a period of time, to provide it with that treatment.

Having regard to the material deposed to by Ms Hackett as having been in her possession at the time of the issue of the warrant and, also, at the time of entry into the premises, there can be no doubt that the prerequisites for exercising the power under s 26(1) were satisfied. The mere fact that it was not possible before entry to identify a particular animal as requiring removal is immaterial to the exercise of the right of entry conferred by s 26(7). Accordingly, Ms Hackett was entitled to enter for that purpose.

20 Ms Hackett said, in a report prepared for her superior on 30 March 1999, verified by affidavit -

On 23rd September 1998, 176 cats were seized from 84 Gurney Rd, Villawood. At the time of the RSPCA inspection of the premises it is estimated in excess of 200 cats were present on the property. The cats on the property were contained within the dwelling, running free in the rear yard and verandah area, with the majority housed in an enclosed garage. I observed cats on the premises at the time of the inspection to be displaying symptoms of extensive hair loss, respiratory difficulties including watery eyes and running noses. I observed cats with ulcerated eyes and eyes missing. I observed cats in poor to emaciated body condition. There was diarrhoea and vomit throughout the house and enclosed garage area. A large portion of the cats seized from the premises were feral. I estimate a minimum of 20 cats were left behind at the premises as they were not contained and were unable to be caught due to their feral nature.

In her evidence before me Ms Hackett said that, as each cat was placed in a container, it was inspected by her, photographed and tagged. She said that her opinion was that none of the cats were in good health, each one having at least three conditions (such as fleas, ear mites and lice) but most had up to six. She was unable to establish which cats were under veterinary treatment but was of the opinion that a large number of them required such treatment. It was also Ms Hackett's opinion that numerous animals had not been provided with sufficient food in the previous 24 hours, inferring this from their body condition which ranged from poor to emaciated. It was also her opinion that there was a large number of animals that were in such a condition that it would be cruel for them to be kept alive. Some support is provided for these opinions by the fact that of the 175 live cats seized from the premises, 88 were shortly after euthanased by RSPCA veterinarians.

21 Mr Lancaster for the defendants read the affidavit of Christine Cole, a veterinary surgeon employed by the RSPCA. Amongst other things, Ms Cole says that on first examination 50% of the cats demonstrated respiratory disease (conjunctivitis, nasal discharges), 20% were underweight, 60% had a skin disease due to lice, fleas and flea allergy dermatitis, bacterial pyodermasis, miliary dermatitis, allergy and ringworm, 38% had ear mites, 14% had dental problems, 37% gingivitis, 8% ear infections and, although not all animals had obvious skin disease, all had lice and fleas present to some extent and each required treatment.

22 As Ms Cole said -

As recurrent respiratory viral disease exists within this population, and many individuals are "carriers" They require a well ventilated, clean and uncrowded environment where stress is avoided. Daily individual observation is required. Clinically affected (ie symptomatic) individuals need to be isolated during the course of their disease. NO new individuals should be introduced to this population as endemic diseases within this population, such as FIV (aids), respiratory viruses, feline infectious peritonitis etc are likely to be transmitted. All individuals should be tested at 6 monthly intervals for FIV and affected individuals should be housed separately.

23 Even if reasonable grounds are necessary for the opinions specified in subs 26 (2)-(5), which may be doubted, I consider that, taking the circumstances as a whole, and the appearance of the cats on the occasion of their seizure, Ms Hackett did have the opinions which she asserted she had and that there were reasonable grounds for them.

24 The plaintiff did not dispute that the cats suffered from the conditions which I have described. Her attitude is, perhaps, summed up in the following evidence -

Q. Would you tell his Honour why do you want these cats back?

A. Because they were my cats; because I love them and I can look after them. I know they have a deadly disease but they don't go anywhere. They stay in the run. I know how to treat them. I just love them and I know they are dying and I want to be there as they die and be able to say goodbye to them, hold their paw or do whatever is necessary as they live out the rest of their life. They . . .

Q. Other than the material requirements as to food and so on, do you give them any affection?

A. I sit in the run. I nurse them. I spend most of my day in the run. When they were there I stayed in the run hosing it out, playing with them. Just being with them.

Q. Does that occupy the whole of your life?

A. That's my whole life.

Regrettably, however, it appears that despite her no doubt sincere intentions, the plaintiff was unable adequately to care for this large number of cats, a conclusion which I think is inevitable having regard to the reports to which I have referred. However, even if the plaintiff was genuinely of the opinion that none of the pre-requisites for the exercise of the powers in subs 26(2)-(5) existed, that is not material to whether Ms Hackett was of the relevant opinion; neither does it follow that there were no reasonable grounds for Ms Hackett to hold those opinions. I should mention here, because this was a subject of some controversy before me, that I consider that the "veterinary treatment" referred to in s 26(3) does not include veterinary examination, alone: see the definition of "veterinary treatment" in s 4 of the Act.

25 I therefore conclude that, in addition to lawfully entering upon the plaintiff's premises, the first defendant lawfully remained on them and lawfully removed the animals, the subject of the plaintiff's claim.

26 The summons seeks an order that the animals seized under the warrant be returned within such period as determined by the Court. Section 26(1) of the Act provides that the relevant officer may -

(c) retain possession of the animal:

(i) except as provided in subparagraph (ii) - for a period not exceeding 30 days from the date upon which the officer takes possession of the animal under paragraph (a), or

(ii) where, within the period referred to in subparagraph (i), proceedings are commenced in respect of the offence, and unless the court before which the proceedings are being taken otherwise directs - until the proceedings are finally determined, . . .

It was agreed at first by concession of the plaintiff that relevant proceedings commenced within 30 days from 23 September 1998 namely on 22 October 1998. However, informations were tendered before me by the plaintiff following the concession, which was in effect withdrawn. Except with regard to one cat and one dog, the informations allege offences respectively concerning 12, 14, 25 and 36 cats. Section 57 of the Justices Act 1902 requires that every information shall be for one offence only and not for two or more offences. I do not think that it can be seriously maintained that these informations comply with s 57. This is not a mere matter of form, as may be demonstrated by Johnson v Miller [1937] HCA 77; (1958) 59 CLR 467. Mr Papayanni for the plaintiff submits that those informations being invalid, relevant proceedings in relation to the cats to which they refer have not been taken within the meaning of s 26(1). There is at all events some difficulty in relating the cats referred to in the informations to the cats presently alive and in the possession of the third defendant, although I would be minded to find that they do cover those animals. If the time limit specified by s 26(1) has not been complied with the question arises whether I should in the exercise of my discretion order return of the animals, or some of them.

27 The time element imposed by s 56 of the Justices Act has now expired so that fresh proceedings cannot now be commenced. It follows that, except as to the informations which refer to only one animal and the one animal to which at an appropriate time each of the other informations will be amended to refer to, the Local Court will have no power under s 26(1) to make orders as to disposition pending the outcome of the proceedings.

28 Section 31 of the Act permits a court which has convicted a person in charge of an animal of an offence against the Act to make orders regarding disposal. The advantage of such a court is that it can make those orders having regard to the evidence before it in respect of each animal which has been the subject of an offence. Taking the circumstances as a whole I am of the view that to the extent that I have any residual discretion concerning disposal of the animals to which the informations do, or in due course, will refer, I would not be minded to exercise it. Of course, four of the animals are as yet unidentified.

29 As to the other powers of removal and retention specified in s 26(2)-(4), that retention is permitted to continue only for the purpose specified. It is obvious, in respect of s 26(2) that the animals have been provided with all necessary sustenance and I think that the evidence as to animals falling within s 26(4) is that that those which it was cruel to keep alive have now been destroyed.

30 Many of the remaining animals no longer require continuing treatment. Of the cats presently held by the RSPCA, the 15 housed at Somersby do not presently need veterinary treatment nor have they over the last month but they do require some specific individual attention from animal attendants for afflictions such as runny eyes, small injuries and over-grooming of hair; the 14 cats held at the Katoomba shelter do not appear to be sick and generally appeared to be in good health when they were placed there in mid October last year and, accordingly, did not require any veterinary treatment, one died of natural causes shortly after being taken in and, when some of them began sneezing, the remaining 13 cats were given a broad-spectrum antibiotic with no other treatment apparently being necessary; 19 cats were sent to the Orange shelter, some exhibiting symptoms of runny eyes and noses, sneezing, ear infections and dull coats, one was euthanased on being diagnosed with renal failure and the cats as at 30 March 1999 otherwise appear to be healthy and happy.

31 It has been submitted that the remaining animals, at all events, are required for the purpose of evidence in the criminal proceedings preferred against the plaintiff and reliance is placed on the principle in Puglisi & Anor v Australian Fisheries Management Authority & Ors 148 ALR 393 at 405, to which I have already referred in connexion with the documents and things seized. However, it seems to me that the requirements of the prosecutions are adequately met by appropriate recording of the conditions of the relevant animals. At all events, it seems almost inevitable that the intervening veterinary treatment and other care provided by the RSPCA since seizure has so materially affected the animals that little if anything would be gained by producing them even if, as seems most unlikely, such a course were sought to be undertaken. Accordingly, I would not be disposed to make orders for retention based upon this consideration. The court dealing with the charges laid under the Act has the necessary power to make appropriate orders regarding the disposal of animals. It was suggested in evidence that the RSPCA might find other homes for the healthy animals, but I do not see in the Act any unilateral power to do so. However, this is not a matter which I need to determine since, in the circumstances of this case, future disposition of the animals should await any appropriate orders that may be made under s 26.

32 On the whole of the evidence, including my substantial doubts whether the plaintiff is able to care for a large number of cats, especially if they were or might be affected with the viral diseases to which I have adverted, I would not think it appropriate (even if I had the power to do so) that I should order a return of them and pre-empt the court's powers conferred by ss 26 and 31 of the Act. I should, however, make it clear that that Court will need to consider the exercise of its discretion in accordance with the evidence adduced before it and should not be influenced by any opinion which I have expressed as to the adequacy of care provided or able to be provided by the plaintiff.

33 Also seized on the occasion of the execution of the Warrant was an alsatian dog which had flea allergy dermatitis, fly bitten ears, patches of alopecia all over its body, otitis, ear mites, fleas and lice. I have been informed by Mr Lancaster that that animal is well and being kept in the RSPCA shelter at Yagoona. Accordingly, the principal relief sought by the plaintiff in these proceedings is refused. In relation to the other matters of relief rather than having them dealt with by orders it has been agreed between the parties that undertakings will be sufficient.

34 As I have mentioned, I consider that the animals were lawfully removed from the possession of the plaintiff and I am of the view that she is unable adequately to care for them. I do not therefore consider it appropriate to exercise my discretion in her favour in these proceedings to order a return of the animals which are not covered by the current prosecutions, and I consider that any application for injunctive or other relief would for the same reasons be refused, even if sought in proceedings which depended upon the rights of ownership of the plaintiff.

35 I do not have to determine for present purposes what other action may be available to the plaintiff to vindicate that right, and I do not intend to imply that those rights of property have as a matter of law in the present circumstances at all events survived. In the circumstances, except so far as the declaration concerning invalidity of the warrant is concerned, I do not think that further relief as requested by the plaintiff should be granted. However, in the circumstances, I think I should make the following orders:

No animal seized from the plaintiff's premises at 84 Gurney Road, Chester Hill on 23 September 1998 now in the custody of the third defendant can be euthanased without giving 24 hours notice orally or in writing to the plaintiff or the solicitors for the plaintiff and, if requested, providing an opportunity to the plaintiff to inspect the animal with an independent veterinary surgeon, although this order does not apply to an animal in such a condition that it would, in the opinion of those charged with the care of the animal, be cruel to keep the animal alive during the 24 hour notice period.

36 [After hearing argument.] In the circumstances, I think the appropriate order is that there should be no order as to costs.

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LAST UPDATED: 23/04/1999