FISHER -v- ELLERTON [2001] WASCA 315

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASCA 315
Court:	THE FULL COURT (WA)
Case No:	FUL:169/2000	Heard:	6 SEPTEMBER 2001
Coram:	WALLWORK J TEMPLEMAN J EINFELD AJ	Delivered:	16/10/01
No of pages:	8	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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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

HEARD : 6 SEPTEMBER 2001 DELIVERED : 16 OCTOBER 2001 FILE NO/S : FUL 169 of 2000 BETWEEN : LEONARD FREDERICK FISHER

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fisher v Ellerton

Details

AGLC: Fisher v Ellerton [2001] WASCA 315
Case: [2001] WASCA 315
Decision Date: 16 OCTOBER 2001

CaseChat Overview and Summary

In Fisher v Ellerton, the parties involved were Fisher, the owner of the property, and Ellerton, a ranger from the Department of Environment and Conservation, who was responsible for enforcing the Dog Act 1976 (WA). The dispute arose when Ellerton attempted to seize dogs on Fisher's property, leading to a confrontation. Fisher alleged that Ellerton was unlawfully on his premises, and Ellerton claimed that he was exercising his powers under the Dog Act. The matter was heard in the Supreme Court of Western Australia, which was required to determine whether Ellerton was lawfully on Fisher's property when he attempted to seize the dogs and whether there was an implied licence to enter the premises for such purposes.

The court was tasked with interpreting the relevant sections of the Dog Act, specifically s 29(3)(d) and s 29(3)(e), to ascertain whether Ellerton was acting within the scope of his powers when he attempted to seize the dogs on Fisher's property. The primary legal issue was whether Ellerton's actions constituted a lawful entry under the provisions of the Act or if he was unlawfully trespassing. The court also needed to determine the meaning of "pursuit" in the context of the Act and whether it justified Ellerton's entry onto Fisher's property.

The court found that Ellerton was acting within the scope of his powers under the Dog Act when he attempted to seize the dogs, and there was an implied licence to enter the premises for this purpose. The court held that Ellerton was not unlawfully on Fisher's property and dismissed Fisher's appeal. The court concluded that the term "pursuit" in the Act was broad enough to encompass the situation where a ranger is in the process of seizing a dog. Consequently, the court ruled that Ellerton's actions were lawful, and the appeal was dismissed.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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