Candy v Thompson

[2005] QSC 111

SUPREME COURT OF QUEENSLAND

CITATION:

Candy v Thompson & Ors [2005] QSC 111

PARTIES:

COLIN RAYMOND CANDY
(plaintiff)

v

BRUCE THOMPSON

(first defendant)

MARY STARKY

(second defendant)

JOHN KLEKAR

(third defendant)

KAY KELLY

(fourth defendant)

SONJA GOURLEY

(fifth defendant)

DR IAN MCPHAIL

(sixth defendant)

HON DEAN WELLS, MP

(seventh defendant)

STATE OF QUEENSLAND

(eighth defendant)

FILE NO:

10684 of 2004

DIVISION:

Trial

PROCEEDING:

Claim

ORIGINATING COURT:

Supreme Court, Brisbane

DELIVERED ON:

9 May 2005

DELIVERED AT:

Brisbane

HEARING DATE:

17, 18, 19 January 2005

JUDGE:

Douglas J

ORDER:

Judgment for the defendants

CATCHWORDS:

TORTS – TRESPASS – TRESSPASS TO LAND AND RIGHTS OF REAL PROPERTY – WHAT CONSTITUTES TRESPASS AND DEFENCES THERETO – DEFENCES – LEAVE AND LICENCE – where plaintiff was keeping a kangaroo on his property – where defendant wildlife rangers entered property to retrieve animal – whether plaintiff had given leave for rangers to enter property

TORTS – TRESPASS – TRESPASS TO GOODS – WHAT CONSTITUTES AND DEFENCES THERETO – where plaintiff did not have the permit required to keep a red kangaroo – where plaintiff had assisted in the removal of the kangaroo from his property – whether trespass to goods made out against any party

TORTS – THE LAW OF TORTS GENERALLY – GENERAL PRINCIPLES – LIABILITY GENERALLY AND DAMNUM SINE INJURIA – where plaintiff specified that the loss and damage suffered consisted of mental anguish, loss of the kangaroo and economic loss by the sale of his house – where none of the claimed losses were attributable convincingly to the removal of the kangaroo – whether substantial damage made out

Koehler v Cerebos Australia Ltd [2005] HCA 15, referred to
Halliday v Nevill (1984) 155 CLR 1, applied
TCN Channel 9 Pty Ltd v Anning (2002) 52 NSWLR 333, cited

Nature Conservation Act 1992 (Qld), s 14, s 83(1), s 88(1)(b)
Nature Conservation (Wildlife) Regulation 1994 (Qld), s 8

COUNSEL:

The plaintiff appeared in person
Mr G D Sheahan for the defendants

SOLICITORS:

C W Lohe, Crown Solicitor, for the defendants.

  DOUGLAS J:

Background facts

1. On 8 March 2001 a red kangaroo called Mitchell was taken from the plaintiff’s suburban home in Hervey Bay by the first, second and third defendants: Bruce Thompson, Mary Starky and John Klekar.  Mr Thompson and Mrs Starky were rangers with the Queensland Parks and Wildlife Service (“QPWS”) while Mr Klekar was then a trainee with the same organisation.  The plaintiff, Mr Candy, did not then have the necessary licence to keep the kangaroo.  In April 2000 he had picked it up as a joey from its dead mother’s pouch.  The mother’s body was on the side of a road near the town of Mitchell in western Queensland; hence the kangaroo’s name.  His daughter, Emma Candy, was particularly involved in raising and caring for the kangaroo when they took it back to Hervey Bay.

1. Between 30 September and 30 October 2000, Mr Candy had a rescue permit issued by the QPWS requiring him to keep the kangaroo in accordance with the provisions of the Code of Practice dealing with the care of orphaned, sick or injured animals by wildlife care volunteers.  He obtained that permit after having been visited by inspectors from the RSPCA.  The permit was issued for a brief period intentionally as the QPWS conservation officer responsible for issuing it, Mrs Starky, believed it should only be issued to give Mr Candy time to get the kangaroo back out to its natural habitat in western Queensland.  A condition of the permit was that “This species must be returned to appropriate carer at place of origin prior to release.”  The Code of Practice also discouraged “human imprinting” on the ground that it may make successful rehabilitation of the animal impossible. 

1. When that permit expired Mr Candy did not apply to extend it.  Mitchell continued to stay at his house, however, and to be cared for by him and his daughter.  It was clearly becoming used to association with humans on the evidence led before me.  He knew that he needed a permit to keep the kangaroo.  It was, by then, becoming reasonably large and appears to have caused some concern to at least one of his neighbours.  He hoped, based on what he had been told by his mother, that the QPWS officers would not pursue the issue of his keeping the kangaroo any further. 

1. Mrs Starky and another QPWS officer, a Ms Kylie Dunlop, visited Mr Candy’s house on 22 February 2001 and told him that the kangaroo had to be returned to an appropriate carer in the area from which it came and that they would return about two weeks later to organise it.  The kangaroo on that occasion displayed some signs of aggression to Ms Dunlop. 

1. Mr Candy rang Mrs Kelly, who was the QPWS wildlife manager for the southern region, in early March 2001 to try to give her some assurances about his care for Mitchell.  He undertook to her that he would release the kangaroo back to the Mitchell area if it became aggressive or unruly.  He also told her of the attachment his daughter, who had recently been in bad health, had for the kangaroo.  Mrs Kelly later spoke about the issue to Mrs Starky but gave her no instructions as to what she should do beyond suggesting that, if she went to seize the kangaroo, she should be accompanied by a veterinarian. 

1. Mrs Starky returned with Mr Thompson, Mr Klekar and a local veterinarian called Dr McKay on 8 March 2001 in order to remove the kangaroo.  This case deals with what happened on that day. 

The events of 8 March 2001

1. After some conversation outside the house and the making of a number of telephone calls by Mr Candy, Mrs Starky, Mr Thompson and Mr Klekar entered Mr Candy’s house to retrieve the kangaroo with Dr McKay.  One of the conversations recorded before the entry has Mr Candy saying that he wanted to ring Mrs Kelly to see where he stood legally.  He went on to say: “If I need a court order and you just come and take him away and then I’ll give him to you alright?”  Mr Sheahan for the defendants submitted that those words should be seen as governing the context in which the QPWS officers entered the house.  They had also been invited inside at an early stage by Mr Candy for a cup of tea but had declined. 

1. Ms Dunlop remained in their vehicle keeping its air-conditioning on to reduce any distress for the kangaroo when it was removed.  Mr Thompson had a small tape recorder in his pocket that recorded many of the conversations and the sounds related to the removal of the kangaroo.  There was also a video camera being used to film part of the proceedings by people in the Candy household. 

1. The principal factual issue is whether the QPWS officers entered the house at Mr Candy’s invitation.  There is no doubt that Dr McKay was invited in but Mr Candy claims that he told the QPWS officers on about three occasions, shortly before and after they entered, that he did not want them in his house.  Neither the sound recording nor the videotape records any such statement.  There is a record of Mr Candy saying to Mr Thompson, who is a strongly built man, inside the house “I don’t care how good you are pal, you know what I mean?”  Mr Thompson responded by saying “Is that a threat?” to which Mr Candy said “Yeah that’s right, whatever you take that as.”  The videotape was not continuous but it does seem to have been operating at the time when Mr Candy claims to have told the QPWS officers that he did not want them in his house.  It does not record any such statement.

1. The sound recording does record what seemed to me to be Mr Candy saying “Can Dr McKay come in?” followed by Mr Thompson saying “Can I come in?”  That is consistent with the other evidence of what happened including from Dr McKay, who was a disinterested witness.  His recollection was that the group consisting of himself and the QPWS officers were told “you better come in” or words to that effect.  Others in the group had a similar recollection that also included Mr Candy opening the door for them. 

1. It is my view that the evidence, from both the sound recording and the video tape, is very strong that the QPWS officers were invited into the house by Mr Candy and that, in spite of some threats and remonstrations by him, he assisted them to remove the kangaroo.  That occurred in spite of the distress it caused Emma Candy and against her vocal protests.  She also told the QPWS officers to go away and to get out of her room.  Her demand probably occurred at a stage when the kangaroo had been placed in a hessian bag that was about to be tied up.  Mr Candy had helped to place it in the bag. 

1. Mitchell was removed from the house and taken to an animal refuge managed by Ms Sonja Gourley, the fifth defendant, with the intention that it become accustomed to life in the wild.  She held a permit allowing her to act as a carer for protected wildlife.  Unfortunately the kangaroo died some weeks afterwards.  He was found at the base of a tree with injuries suggesting he may have run into it accidentally. 

The questions to be decided

1. Those are the background facts that gave rise to this litigation.  After an application by the defendants to strike out the plaintiff’s statement of claim in another, related proceeding, this matter was made the subject of a new file in this Court and set down for hearing on the basis that the following issues were to be tried between the parties:

1.          Did the first, second and third defendants trespass on the plaintiff’s land or in his house on 8 March 2001?  If so, did they do so on the instructions or with the encouragement of the fourth defendant?

2.          Did those defendants wrongfully take and/or keep a red kangaroo named Mitchell owned by or in the lawful possession of the plaintiff?

3.          Was the fifth (sic) defendant a party to any wrongful taking or keeping of that kangaroo?

4.          Were the sixth, seventh and eight defendants legally responsible for the conduct of the first, second, third and fourth defendants identified in paragraphs 1 and 2 above?

5.          Did the plaintiff suffer any loss or damage by reason of the conduct referred to in paragraphs 1 and 2 above?  And if so, how much?

6.          Is the plaintiff entitled to any other relief (including declaratory or injunctive relief) arising out of the foregoing circumstances or relating to the foregoing conduct?

Trespass

1. There was no issue taken by Mr Candy about the entry onto his land by Mrs Starky, Mr Thompson and Mr Klekar.  He was speaking to them there and there would have been an implied consent for them to walk up the path or driveway to the house entrance; Halliday v Nevill (1984) 155 CLR 1, 7-8. The only real issue is whether their entry into his house constituted a trespass.

1. In my view there was no trespass.  Mr Candy invited the QPWS officers into the house so that they could remove the kangaroo.  He assisted them in bagging the kangaroo to allow it to be removed.  He did not withdraw his permission for them to be in the house despite his aggressive words to Mr Thomson.  Emma Candy’s remonstrations with those officers to get out of her room did not have the effect of revoking the licence granted to them by Mr Candy; he was the registered proprietor of the land and entitled to exclusive possession of it.

Trespass to Goods

1. My factual findings make it clear that the kangaroo was removed with Mr Candy’s consent.  In any event, the kangaroo was in his possession unlawfully, contrary to the provisions of the Nature Conservation Act 1992. Under that Act this kangaroo was a protected animal and the property of the State; see s 83 (1) of the Act and the definitions in the dictionary schedule of “protected animal”, “wildlife” and “native wildlife”. Section 8 of the Nature Conservation (Wildlife) Regulation 1994 is also relevant in its references to “native wildlife” as including a mammal indigenous to Australia.  Mitchell’s status as a mammal indigenous to Australia was, not surprisingly, not an issue in the case. 

1. Mr Candy, who represented himself and is not a lawyer, submitted that Mitchell was not a protected animal, as he was not in a protected area as defined by s 14 of the Act. Protected areas in that section include national parks, conservation parks, resources reserves, nature refuges, coordinated conservation areas, wilderness areas, world heritage management areas and international agreement areas, but do not include the yard of his house in Hervey Bay. That is to misread the Act, as the definition of a protected area does not determine whether an animal is protected.

1. Accordingly, Mr Candy was not authorised to keep the kangaroo as he had no permit to do so under the Act; see s 88(1)(b). The defendants, Mrs Starky, Mr Thompson and Mr Klekar, were authorised persons who could take the kangaroo for the purposes of that section.

1. They were also justified in taking the kangaroo from his possession because of its age of between 12 and 18 months, its exhibition of signs of aggression and dominance, particularly to Ms Dunlop on 22 February 2001, its potential for causing injury to Mr Candy, members of his family, people in the vicinity of his house or persons lawfully entering into his property.  Accordingly, there is no case against those defendants that they wrongfully took or kept the kangaroo.  It was not in the lawful possession of the plaintiff.

The Position of the Fifth Defendant

1. The question posed in respect of the fifth defendant is whether she was party to any wrongful taking or keeping of the kangaroo.  The fifth defendant on the record is Ms Sonja Gourley.  The argument, however, treated this question as if Mrs Kelly was the relevant defendant.  As it is my view that there was no wrongful taking or keeping of the kangaroo, by anyone, including Mrs Kelly and Ms Gourley, this issue becomes irrelevant. 

1. In any event, there is no evidence that Mrs Kelly had instructed or encouraged Mrs Starky, Mr Thompson or Mr Klekar to trespass on the land or to take or keep the kangaroo wrongfully.  Mrs Kelly made it clear that she was not an operational officer of the Department and the only comment about Mrs Starky’s plans that she made to her was to advise her or request that if possible she should ask a veterinarian to accompany them to seize the animal. 

1. Ms Gourley was authorised to care for the kangaroo and possessed the necessary permits to do that.  The evidence I accept is that she did that but, unfortunately and probably by accident, Mitchell died. 

Were the Sixth, Seventh and Eighth Defendants legally responsible for the Conduct of the First, Second, Third and Fourth Defendants?

1. The sixth, seventh and eighth defendants were the director of QPWS, the Minister of the Department and the State of Queensland.  No issue was pursued about any responsibility they might have had for the taking of the kangaroo.

Loss or Damage

1. Mr Candy claimed that his loss and damage consisted of mental anguish, loss of the kangaroo and economic loss by the sale of his house.  He also referred to increasing telephone bills.  None of these claimed losses were convincingly attributable to the conduct of the first, second and third defendants in removing the kangaroo.  His house was on the market before 8 March 2001.  The kangaroo was not his, nor was there any convincing evidence that the anguish he claims to have suffered was a “natural and probable result of the alleged trespass”; see TCN Channel 9 Pty Ltd v Anning (2002) 52 NSWLR 333, 352-353. There was no medical evidence led by Mr Candy to support these claims or that they would have been a reasonably foreseeable consequence of the conduct alleged against those defendants; cf. Koehler v Cerebos Australia Ltd [2005] HCA 15 at [24], [35]-[36]. Mr Candy wished to tender medical reports and other documents said to be relevant to these issues during the submissions, after his and the defendants’ cases had closed. I refused him leave to do that.

1. The conduct of the QPWS officers in question seemed to me to be perfectly reasonable in the circumstances.  If those defendants had trespassed on Mr Candy’s property their conduct was not such as to attract aggravated or exemplary damages.  Mr Candy knew that he was not supposed to keep the animal, that he should have made arrangements to return it to the wild and could not keep it as a pet.  The QPWS officers were simply fulfilling their obligations under the relevant legislation. 

1. Mr Candy liked the kangaroo as a pet and was concerned to support his young daughter’s own obvious attachment to it.  But those sentiments did not justify him in disobeying the law by keeping the kangaroo.  Nor did the effects on his feelings of its removal infringe any of his rights or cause him compensable damage.  Accordingly, even if a trespass to his land or wrongful taking or keeping of the kangaroo had been established, no substantial damage was shown by Mr Candy. 

Is the Plaintiff Entitled to any Other Relief?

1. For the reasons I have outlined above, there is no reason for granting relief to the plaintiff of any sort. 

Orders

1. Accordingly, there will be judgment for the defendants.  I will hear the parties as to costs.