Fisher v Ellerton
[2001] WASCA 315
•16 OCTOBER 2001
FISHER -v- ELLERTON [2001] WASCA 315
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 315 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:169/2000 | 6 SEPTEMBER 2001 | |
| Coram: | WALLWORK J TEMPLEMAN J EINFELD AJ | 16/10/01 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | LEONARD FREDERICK FISHER MICHAEL ELLERTON |
Catchwords: | Appeal General principles Animals Whether ranger was unlawfully on premises whilst attempting to seize dogs Whether ranger exercising powers under s 29(3)(d) or s 29(3)(e) of the Dog Act 1976 (WA) Whether there is an implied licence to enter premises to seize dogs Meaning of "pursuit" |
Legislation: | Dog Act 1976 (WA), s 29(3), s 29(5a) Dog Regulations 1976 (WA), reg 12A |
Case References: | Halliday v Nevill (1984) 155 CLR 1 Munnings v Barrett [1987] Tas R 80 Ex parte Gleeson [1907] VLR 368 Ibbotson v Chaney (1998) 19 WAR 404 Julius v Lord Bishop of Oxford (1880) All ER Rep 43 McArthur v Williams (1936) 55 CLR 324 Ousley v R (1997) 192 CLR 69 Palmer v Kizon [1999] WASC 160 R v Royds; ex parte Sidney (1860) 1 QSCR 8 Selby v Pennings (1998) 19 WSR 520 Ward v Williams (1955) 92 CLR 496 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : FISHER -v- ELLERTON [2001] WASCA 315 CORAM : WALLWORK J
- TEMPLEMAN J
EINFELD AJ
- Appellant
AND
MICHAEL ELLERTON
Respondent
Catchwords:
Appeal - General principles - Animals - Whether ranger was unlawfully on premises whilst attempting to seize dogs - Whether ranger exercising powers under s 29(3)(d) or s 29(3)(e) of the Dog Act 1976 (WA) - Whether there is an implied licence to enter premises to seize dogs - Meaning of "pursuit"
Legislation:
Dog Act 1976 (WA), s 29(3), s 29(5a)
Dog Regulations 1976 (WA), reg 12A
(Page 2)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr M D Cuerden
Respondent : Mr P L Wittkuhn
Solicitors:
Appellant : Hammond Worthington
Respondent : McLeod & Co
Case(s) referred to in judgment(s):
Halliday v Nevill (1984) 155 CLR 1
Munnings v Barrett [1987] Tas R 80
Case(s) also cited:
Ex parte Gleeson [1907] VLR 368
Ibbotson v Chaney (1998) 19 WAR 404
Julius v Lord Bishop of Oxford (1880) All ER Rep 43
McArthur v Williams (1936) 55 CLR 324
Ousley v R (1997) 192 CLR 69
Palmer v Kizon [1999] WASC 160
R v Royds; ex parte Sidney (1860) 1 QSCR 8
Selby v Pennings (1998) 19 WSR 520
Ward v Williams (1955) 92 CLR 496
(Page 3)
1 WALLWORK J: I agree with the reasons for judgment of Templeman J and with the conclusions reached by his Honour.
2 TEMPLEMAN J: This is an appeal from the decision of Scott J who upheld the appellant's conviction, in the Court of Petty Sessions at Karratha, on the charge of impeding a ranger who was exercising his powers and carrying out his duties under the Dog Act 1976.
3 The appellant does not dispute the finding of the Stipendiary Magistrate who convicted him, that he impeded the ranger, who, at the material time, was attempting to remove the appellant's dog from a motor vehicle. The appellant's case is that the ranger was unlawfully on the premises where the motor vehicle was parked and that, as a consequence, he was not exercising his statutory powers.
4 The dog in question was one of four owned by the appellant. On the afternoon of 30 November 1999, all four dogs menaced a Ms Hunter when she was walking past the appellant's house. One of the dogs bit Ms Hunter on the legs. Ms Hunter, or someone on her behalf, called in the ranger, who took a statement from Ms Hunter. While the ranger was so engaged, the appellant came on the scene and was abusive towards him.
5 The ranger then obtained a warrant, pursuant to s 29(5a) of the Act, for the purpose of seizing the dogs.
6 In order to execute the warrant, the ranger went to 1A Wylie Court, Karratha, in the company of police officers, from whom he had sought assistance. He parked his vehicle in the driveway, behind a vehicle containing the four dogs.
7 The occupier of the Wylie Court premises was a Mr Gray. He was present, as was the appellant's wife. The ranger told the appellant's wife that he wanted to seize and detain the dogs and that he had a warrant.
8 With the assistance of Mr Gray, the ranger removed three of the four dogs from their vehicle and placed them in his vehicle.
9 The appellant then arrived at 1A Wylie Court. He questioned the ranger about the warrant and about the involvement of the police. He refused to permit the ranger to take the fourth dog. The ranger said he would seize it, using a dog pole. The appellant then attempted to prevent the ranger from taking the pole from his vehicle. That was the act of impeding with which he was charged.
(Page 4)
10 The appellant also assaulted the ranger, and was arrested by the police officers. The ranger was then able to seize the remaining dog and transfer it to his vehicle.
11 Section 29 of the Act contains the powers exercisable by an authorised person, which the ranger was, for the purpose of seizing dogs.
12 Omitting the parts which are irrelevant for present purposes, the section provides:
"(3) If it appears to an authorized person that -
(a) an attack by a dog has occurred;
the authorised person may -
(d) seize and detain the dog; and
(e) if he is in pursuit of the dog for the purpose of seizing it and he has reasonable grounds to believe that it is necessary to do so for that purpose, enter any premises, other (unless section 33G(1) applies) than a building or part of a building that is used for residential purposes.
…
(5a) If he is satisfied on the balance of probabilities that an attack by a dog has or may have caused injury or damage, a Justice of the Peace may issue a warrant authorizing any authorized person to seize the dog and -
(a) if the dog is a dangerous dog, detain and deal with it in accordance with section 33G; or
(b) otherwise, detain it pending the determination of an application under section 39.
(5b) Where a warrant under subsection (5a) is issued in respect of a dog an authorized person -
(a) may seize and detain the dog, and if section 33G(2) applies shall give the notice required by that subsection; and
(Page 5)
- (b) may enter any premises if he has reasonable grounds to believe that it is necessary to do so for the purpose of seizing the dog."
13 There is nothing in s 33G which is relevant here.
14 The appellant's case is that the ranger's power to seize and detain the dog pursuant to s 29(3)(d) did not permit him to enter on the premises at Wylie Court.
15 The appellant contended that the ranger was not "in pursuit of the dog": and that he therefore had no power to enter those premises pursuant to s 29(3)(e). Thus, it was said, the ranger could not have entered the premises lawfully, except with a proper warrant, issued pursuant to s 29(5a).
16 The appellant contended further that the warrant was not in proper form, was not issued in a proper manner and was therefore invalid, with the result that the ranger's actions in seizing the dogs were unlawful and the appellant committed no offence in impeding him.
17 In the Court below, Scott J held that once the ranger had made the decision to seize the dogs and visit the premises where he understood them to be, he was "in pursuit of the dogs for the purpose of seizing them".
18 Counsel for the appellant submitted that in the context of s 29(3)(e) the word "pursuit" must import a degree of spontaneity and urgency. If that were not so, counsel said, it would never be necessary for an authorised person to obtain a warrant to enter premises other than those used for residential purposes: thus subsection (3)(e) would add nothing to subsection (5b).
19 I accept that submission, although I do not think "pursuit" necessarily involves a chase; it may, for example, include some stealth on the part of the pursuer. However, I consider that more is required to constitute a pursuit, and therefore to justify an entry on premises pursuant to s 29(3)(e), than the formation of an intention by an authorised person to seize a dog. Further, the circumstances must be such as to make it impractical or unwise for the authorised person who is intent on seizing the dog to break off the pursuit for the purpose of obtaining a warrant.
(Page 6)
20 That being so, the fact that the ranger in this case did take the time to obtain a warrant leads me to the view that he was not "in pursuit" of the dogs within the meaning of s 29(3)(e).
21 It does not follow that the outcome of the appeal turns on the validity of the warrant. That is because, in my view, the ranger was entitled to enter the premises for the purpose of seizing the dogs, pursuant to an implied licence.
22 A licence of that character was identified by the High Court in Halliday v Nevill (1984) 155 CLR 1. There, a disqualified driver was arrested by police officers on the driveway of premises in which he had taken refuge. The officers did not seek the permission of the owner of the premises before entering and making the arrest. It was contended that the police officers had been trespassing at the material time, with the result that the arrest was unlawful. The majority of the High Court held to the contrary, given that the driveway was open and unobstructed and that there was no notice or other indication that entry was prohibited.
23 In those circumstances, the majority held, "common sense, reinforced by considerations of public policy" required an inference to be drawn, as a matter of law, that a police officer had an implied or tacit licence from the occupier to set foot on the open driveway for the purpose of questioning or arresting a person whom he had observed committing an offence on a public street in the vicinity of the driveway.
24 The implied licence was held to extend not only to police officers, but to "a variety of persons with a variety of legitimate purposes". The same public policy considerations apply in this case so that the persons identified include an authorised person such as the ranger.
25 The evidence here was that the driveway at 1A Wylie Court was open and that the ranger pulled his vehicle up behind the vehicle which contained the dogs. There was no evidence before the Magistrate of any obstruction or notice directing persons not to enter.
26 The evidence suggests that the ranger was standing on or very close to the driveway when attempting to seize the dog. Although the occupier of 1A Wylie Court assisted the ranger to transfer the dogs into his vehicle, I do not regard that as relevant because the occupier knew the ranger had a warrant.
27 In my view, in the absence of any evidence that the occupier would have terminated the implied licence had he thought the warrant was of
(Page 7)
- questionable validity, there is no reason to doubt the existence of the implied licence. The appellant, not being an occupier, had no authority to terminate the licence.
28 In concluding that a licence existed, I have had regard to the cautionary note sounded by Cosgrove J in the Supreme Court of Tasmania, in Munnings v Barrett [1987] Tas R 80, 87, to the effect that there is no presumption of an implied licence: such a licence must be based on the evidence. In my view, the conclusion is justified in this case.
29 Section 29(3) was introduced into the Act by s 26 of the Dog Amendment Act 1987, after the High Court had decided Halliday v Nevill (supra). The powers of an authorised person to seize and detain a dog under the Dog Act should therefore be taken as enlarged in circumstances where a licence to enter on to private property may be implied. Before the 1987 amendment, s 29(3) empowered an authorised person only to seize and retain a dog "found wandering at large".
30 It is apparent from the debates in the Legislative Council and the Legislative Assembly following the second reading of the Dog Amendment Bill that no consideration was given to the existence of an implied licence. In the Assembly, the responsible minister's intention was to ensure that an authorised person should have the same powers as a police officer to enter premises without a warrant, while "in hot pursuit": see Hansard 19 May 1987, p 1081.
31 Although this reinforces the submission that s 29(3)(e) of the Act contemplates some form of active pursuit, it demonstrates a general intention to place an authorised person exercising a power to seize and detain a dog on the same footing as a police officer making an arrest. Thus, as a matter of law, each may act pursuant to any licence to be implied from the surrounding circumstances in the exercise of his statutory duty.
32 I conclude, in the present case, that the ranger was acting lawfully in seizing the dogs on the driveway at 1A Wylie Court, pursuant to s 29(3)(d) of the Dog Act. I have therefore reached the same conclusion as Scott J, albeit by a different route.
33 I agree with Scott J that in these circumstances it is not necessary to consider the validity of the warrant obtained by the ranger. Despite that, I
(Page 8)
- wish to draw attention to the fact that the warrant did not follow the form 4B set out in Schedule 1 to the Dog Regulations 1976, as required by reg 12A(1). In particular, the warrant was not expressed to be a warrant to enter premises: nor did it identify the premises at which the dog was to be found. It seems to me, without deciding the point, that these defects may have invalidated the warrant. I mention this in the hope that those responsible for issuing warrants pursuant to s 29(5a) will be careful to follow the prescribed form in future, and thereby avoid unnecessary litigation.
34 EINFELD AJ: I agree with the conclusion of Justice Templeman that the ranger was acting lawfully under an implied licence as explained in Halliday v Nevill. The appeal should be dismissed with costs.
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