Candy v Christensen

[2006] QDC 364

[2006] QDC 364

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBERTSON

No D118 of 2006

COLIN CANDY	Plaintiff
and
TERRY CHRISTENSEN	Defendant

MARYBOROUGH

..DATE 03/10/2006

ORDER

HIS HONOUR:  Mr Candy is seeking damages for trespass to land

and goods from Mr Christensen, who is a Queensland Parks and

Wildlife Service officer.  Mr Candy's claims relate to what he

asserts was the unlawful seizure of a swamp wallaby named

Marcy from his home at 34 Cypress Street, Torquay, on

30 November 2001.  His claim is remarkably similar to a failed

claim against a variety of defendants, including Queensland

Parks and Wildlife Service officers, arising out of the

seizure of a red kangaroo called Mitchell from the same

premises on 8 March 2001.  His claim was dismissed by

Douglas J on 9 May 2005 after a three day trial in January of

that year: Candy v. Thompson and others [2005] QSC 111; and

an appeal against His Honour's decision was unanimously

dismissed by the Court of Appeal on 14 October 2005:  Candy v.

Thompson and others [2005] QCA 382.

In my opinion, the conclusions of law reached by the Court of

Appeal effectively bind me in the light of the facts as I find

them to be in this case, and the result for Mr Candy will be

similarly disappointing.  I do not intend to recite all the

relevant events, as there is really no significant factual

dispute between the parties.

Based on the admissions in the pleadings, and the concessions

made by Mr Candy in his evidence and the documents which were

tendered, and which he accepted in cross-examination, I make

the following findings of fact:

Mr Candy took possession of Marcy, a swamp wallaby joey, on or

about the 30th of March 2001 after she'd been discovered in

her dead mother's pouch by the side of a road in Hervey Bay.

Because of what had occurred in relation to the seizure of

Mitchell by Queensland Parks and Wildlife Service officers on

the 8th of March 2001, I infer that Mr Candy involved the

media, namely A Current Affair, in support of his desire to

keep the swamp wallaby.

His daughter, Emma, then applied for a rescue permit under the

Nature Conservation Regulation 1994, which was granted on the

6th of April 2001.  The letter that accompanied the permit

included a copy of the Code of Practice for the care of

orphaned, sick or injured protected animals, and Mr Candy

acknowledged that he read both the letter and the Code of

Practice.

The Code of Practice approved by the Minister under the Nature

Conservation Act 1992 highlights the need to return such

animals to the wild when the animal is again able to live in

its natural habitat.  From the 6th of April 2001 until the 6th

of October 2001, with her father's knowledge, Emma held a

rescue permit which permitted her to keep Marcy, subject to

the terms of the permit.  At no time did Mr Candy hold any

permit in relation to the animal.

On the 27th of August 2001, with Mr Candy's consent, Mr Doug

Schulz, a QPWS officer, and Mr McKay, a veterinary surgeon,

visited Mr Candy's residence and Mr McKay inspected the

wallaby.  He provided a report dated the 30th of August 2001,

which Mr Candy acknowledged reading around about that time.

Mr McKay assessed the animal as being in a healthy condition

and expressed the opinion that:

"...the animal would benefit from a period in a
   soft-release program where it would acquire the skills
   required for survival in a suitable habitat."

On the 5th of October 2001 Emma applied under the Nature

Conservation Act for a permit to keep Marcy.  Her application

was refused and a notice setting out reasons for refusal was

attached to a letter to Emma, dated the 27th of November 2001,

delivered in person to her, in her father's presence, on the

28th of November 2001 at their home by Mr Christensen.  I

infer that because of the history of the matters between

Mr Candy and QPWS the conversation that took place on that day

was tape-recorded, and Mr Candy does not dispute its accuracy.

The reasons for the refusal are set out in the notice and

refer to "the evidence that the animal...is able to be

returned to the wild" and "(residence is) unfit for the

keeping of an adult swamp wallaby".  The premises are an

ordinary house block, just over 900 square metres, with a four

bedroom house at the front of the block, and other similar

residences on all boundaries.

Mr Christensen made every effort to persuade Mr Candy to hand

over the animal voluntarily but he refused, telling him that

he will need a warrant and that "it'll have to be on Current

Affairs".

On the 30th of November 2001, Mr Christensen executed a search

warrant on Mr Candy's premises and the wallaby was seized.

The warrant was issued under the hand of an acting Magistrate

at Holland Park at 8.55 a.m. on that day and executed soon

after 3.20 p.m. at the premises.  Again Mr Christensen

tape-recorded the conversation that took place at the time,

and Mr Candy does not dispute its accuracy.  Mr Candy did not

cooperate in the seizure of the animal, despite

Mr Christensen's pleas for him to help the other officer

because the animal was used to being handled by Mr Candy.

Emma did appeal against the refusal.  Ultimately the appeal

was dismissed on the 21th of October 2002.  Marcy sadly had

died of maladaption syndrome at David Fleahy's Fauna Reserve,

Currumbin, on the 12th of March 2002.

DISPUTED ISSUES

On the 22nd of August 2005, before Judge Brabazon QC in this

Court, the parties agreed that the action proceed on the basis

of an agreed statement of issues which was filed on the 24th

of August 2005.  This was a similar process to that undertaken

prior to the trial before Douglas J, and neither party sought

to resile from the agreed statement of issues.

For convenience, I will start with question 4:

"Was the swamp wallaby a protected animal pursuant to
   section 83 of the Nature Conservation Act on the 30th of
   November 2001?

Once it is accepted that a swamp wallaby is a mammal that is

"indigenous to Australia" - which it clearly is and Mr Candy

accepts - then the reasoning and conclusions of Keane JA in

relation to the red kangaroo Mitchell in the earlier case

applies equally to this case.  I do not intend to recite his

Honour's careful and logical analysis which is contained in

paragraphs 36 to 37 of his judgment with which I agree.

Mr Candy attempted to argue that the animal came within the

definition of "newly protected animal" in section 85(1) of the

Nature Conservation Act, thus being an exception to the

general provision in section 83(1) that all protected animals

are the property of the State.

Section 85(1) of the Nature Conservation Act defines "newly

protected animal" as "a protected animal that, immediately

before the commencement day, was not fauna around the Fauna

Conservation Act 1974."

"Fauna" was defined in that Act (relevantly) as "any...mammal

that is indigenous to Australia".

As a swamp wallaby is a mammal indigenous to Australia, it is

fauna under the Fauna Conservation Act 1974 and is, therefore,

not a newly protected mammal under the Nature Conservation

Act.

Mr Candy also returned, somewhat obliquely, to the argument he

ran before the Court of Appeal to the effect that the Nature

Conservation Act did not provide an adequate basis for

prescribing native wildlife as common wildlife by regulation.

This argument must be rejected for the same reasons given by

Jerrard JA at paragraph 11 of his Honour's judgment in the

Court of Appeal decision.

It follows, therefore, that in answering question 4 of

disputed issues against Mr Candy, the wallaby was never his

property and was always the property of the State and,

therefore, Mr Christensen committed no trespass to the

plaintiff's goods.

Question 5 deals with the lawfulness of the search warrant.

Mr Candy did not really pursue an argument that the warrant

was unlawfully obtained, nor could he.  He advanced a number

of arguments which show his ignorance of the law of search

warrants; for example, that for some reason the fact that

neither he nor Emma were actually charged with a breach of

section 88(1) of the Nature Conservation Act in some way

affected the legality of the warrant.  He also submitted that

because of the reference to a 14 day authorisation in the

warrant, which on its face was to expire at 9 p.m. on the 14th

of December 2001, an execution of the warrant on the day of

its issue prior to 9 p.m. was unlawful.

As I remarked when he made this novel argument, law

enforcement agencies would be somewhat alarmed at the prospect

that a lawfully issued search warrant could not be executed on

the day of its issue.

There is nothing in the evidence or in law to suggest that the

warrant issued by the Acting Magistrate pursuant to section

149 of the Nature Conservation Act was other than a lawfully

issued warrant, and I hold that it was lawfully issued by the

Acting Magistrate and lawfully executed by Mr Christensen at

Mr Candy's premises on the 30th of November 2001.

It follows that Mr Christensen's seizure of the wallaby was

lawful and that he had the right to enter the plaintiff's

premises pursuant to the warrant for the purposes of the

seizure.  He has, therefore, committed no trespass to the

plaintiff's land.

Question 6:  Did the Nature Conservation Act apply to Mr Candy

and his property?

Mr Candy's argument here relies on section 14 of the Nature

Conservation Act and is the same argument rejected by

Douglas J at paragraph 17 of his Honour's judgment in the

earlier case and, for the same reasons enunciated by his

Honour there, I reject Mr Candy's argument here.

Question 38:  Did Mr Candy hold any right at common law to

pursue the wallaby's return?

Mr Candy's argument relies on some selected passages in the

High Court's judgment in Yanner v. Eaton (1999) 201 CLR 351

and fails to appreciate (as he did in the Court of Appeal:

see para 34 of Keane JA's judgment) that the property in the

wallaby does not depend on common law principles but upon the

provisions of the Nature Conservation Act and the Nature

Conservation (Wildlife) Regulation 1994.  He had no separate

common law rights in relation to the wallaby and, as I found

under the applicable statutory regime, the wallaby was always

the property of the State and Mr Candy himself never held any

permit under the Act to keep the animal.  It follows that

Mr Candy's claims must fail.

Mr Horton, in his written submission, has also referred to

misfeasance against public officials in the exercise of

administrative power.  To the extent that Mr Candy's claim

could be so classified, I agree with Mr Horton's argument that

in the wake of the High Court's decision in Northern Territory

of Australia and others v. Mengel and others (1995) 129 ALR;

(1995) Australian Torts Reports 81-335; (1995) 69 ALJR 527,

there is not available, independent of negligence, nuisance or

trespass, a general action for damages for those who suffer

loss by reason of unlawful or intentional acts of public

officials.

LOSS AND DAMAGE

Despite what was said by Douglas J and Keane JA, once again

Mr Candy made no attempt to disclose any documents, such as

expert reports, in support of this aspect of his claim.  At

the start of the hearing he wanted to hand up a set of

documents which had not been disclosed and which Mr Horton,

quite reasonably, objected to on that basis.  Eventually I did

permit him to tender three reports from his general

practitioner, Dr William Lethbridge.  Dr Lethbridge, who had

no notice of being required to give evidence, very kindly made

himself available to give evidence in the plaintiff's case by

telephone and he was cross-examined by Mr Horton.

Mr Candy's claims relate to the loss of property at Torquay

and personal injury.

He told me in evidence that he has been a disability pensioner

since he was 29.  He suffers from a distressing arthritic

condition.  He was born on the 11th of December 1956, so he is

now 49.  He and his wife have had six children.  The property

at Cypress Street was purchased by himself and his wife in

2000 for $108,000 and he obtained, I infer, bank finance for

$85,000.  He told me that the property was sold in February

2002 for $153,000 - that is a substantial profit - and that it

is now worth $450,000.  He maintains that the seizure of Marcy

and Mitchell caused the sale and, therefore, the loss.

This claim is simply not credible.  He accepted in

cross-examination that at the time of Mitchell's seizure on

the 8th of March 2001 the house was on the market and he told

Mr Christensen on the 28th of November 2001 that the property

had been on the market for 12 months.  There is no cogent

evidence to connect the sale of the property or any alleged

loss to the seizure of Marcy on the 30th of November 2001.

His life has certainly been in a downward spiral for many

years and he chooses to blame all his problems on the

Queensland Parks and Wildlife Service and its actions in

seizing his pet kangaroo and pet wallaby.  He says that he now

has a drinking problem; but he does not attend AA; and there

is no cogent evidence before me to connect any drinking

problem he may have to the seizure of the wallaby.

I think it is probable that the main reason for the

difficulties he now faces lies in the breakdown of his

marriage.  I infer from Mr Candy's evidence, and also that of

his son, that his obsession with Queensland Parks and Wildlife

Service and his view of the way in which orphaned and sick

native animals should be treated, which is different from that

of Queensland Parks and Wildlife Service, was a contributing

factor to the breakdown of the marriage.  That is not

referable in any causative sense to Mr Christensen's actions

in seizing the wallaby on the 30th of November 2001.

Mr Candy's own evidence is that his wife moved out in July

2001, returned in August, and then finally left on the 30th of

September 2001 and returned with his youngest son to her

family in Dubbo; that is, before the date of the seizure.

Later he told me in March 2002 she returned in an attempt to

save the marriage, but this failed and they were divorced in

2004.

Dr Lethbridge's evidence does not help Mr Candy overcome the

difficulty that he has in establishing a causal link between

his problems now and the seizure of Marcy.  I need only

mention a number of features of that evidence.  Dr Lethbridge

says that Mr Candy suffers from depression and insomnia, but

that he had reported a history of these problems to the doctor

when he first consulted him in August 2000.  It is also clear

that Mr Candy is resistant to advice which is designed to

assist him to deal with these problems, which advice

presupposes to any extent that he is obsessed with these

disputes with Queensland Parks and Wildlife Service.

One of Dr Lethbridge's letters, dated the 1st of September

2006, is to a psychiatrist, Dr Petros Markou, in which

Dr Lethbridge perceptibly, in my view, observed:

"I'm most grateful for your help in Colin's management.
   However, I fear he is still more interested in getting
   you to report on his depression for his Court case than
   on actually seeking help or treatment".

It is telling that Mr Candy has not attempted to place any

psychiatric evidence before me to support his claim from

Dr Markou or anyone else.

He has failed to establish any causal link between his alleged

loss and the events of the 30th of November 2001.  His claim

is dismissed.

Finally, before hearing the parties on costs, I want to make a

few observations.  In my opinion, this litigation, in the

light of the result in the earlier case, never had any hope of

succeeding.  There is no doubt that Mr Candy is obsessed, but

his decision to continue with this case in the wake of the

Court of Appeal's decision satisfies me that in so pursuing

the claim he is not acting rationally.  His claims pursued in

Court have significant consequences in terms of resources and,

I am sure, personal for people like Mr Christensen.

I agree with Mr Horton that the taped conversations between

Mr Candy and Mr Christensen show that Mr Christensen at all

times acted reasonably and courteously in an attempt to

resolve a difficult situation without recourse to legal means

under the Act.  There is no evidence to suggest that Mr Candy

has issued any other similar claims.  Had there been, I would

have referred these reasons to the Attorney-General with a

view to her taking advice as to whether or not action should

be taken pursuant to the Vexatious Proceedings Act 2005.

...

I will order the plaintiff to pay the defendant's costs of and

incidental to the proceedings on the standard basis.

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