FISHER -v- ELLERTON [2000] WASCA 264

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASCA 264
Case No:	SJA:1081/2000	Heard:	28 AUGUST 2000
Coram:	SCOTT J	Delivered:	15/09/00
No of pages:	10	Judgment Part:	1 of 1
Result:	Appeal dismissed
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Parties:	LEONARD FREDERICK FISHER MICHAEL ELLERTON
Catchwords:	Criminal law and procedure Jurisdiction, practice and procedure Warrants, arrest, search, seizure and incidental powers Seizure and detention of dogs suspected of an attack upon a person Ranger in pursuit of dogs Warrant not required in the circumstances Ranger exercising powers and duties under the Dog Act 1976, s 29 Animals Liability of owners and keepers in respect of injuries by animals Various statutory provisions Interference with discretion of court below Dog Act 1976
Legislation:	Dog Act 1976, s 29 Dog Regulations 1976
Case References:	Dobie v Pinker [1983] WAR 48 Hume & Anor v R [1999] WASCA 64 Letts v King [1988] WAR 76 Ex parte Gleeson [1907] VLR 368 Halliday v Nevill (1984) 155 CLR 1 Ibbotson v Chaney (1998) 19 WAR 404 Julius v Lord Bishop of Oxford [1880] All ER 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 WAR 520 Ward v Williams (1955) 92 CLR 496

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : FISHER -v- ELLERTON [2000] WASCA 264 CORAM : SCOTT J HEARD : 28 AUGUST 2000 DELIVERED : 15 SEPTEMBER 2000 FILE NO/S : SJA 1081 of 2000 BETWEEN : LEONARD FREDERICK FISHER

Appellant (Defendant)

AND

MICHAEL ELLERTON

Respondent (Complainant)

Catchwords:

Criminal law and procedure - Jurisdiction, practice and procedure - Warrants, arrest, search, seizure and incidental powers - Seizure and detention of dogs suspected of an attack upon a person - Ranger in pursuit of dogs - Warrant not required in the circumstances - Ranger exercising powers and duties under the Dog Act 1976, s 29

Animals - Liability of owners and keepers in respect of injuries by animals - Various statutory provisions - Interference with discretion of court below - Dog Act 1976

Legislation:

Dog Act 1976, s 29

Dog Regulations 1976

(Page 2)

Result:

Appeal dismissed

Representation:

Counsel:

Appellant (Defendant) : Mr M D Cuerden

Respondent (Complainant) : Mr P L Wittkuhn

Solicitors:

Appellant (Defendant) : Hammond Worthington

Respondent (Complainant) : McLeod & Co

Case(s) referred to in judgment(s):

Dobie v Pinker [1983] WAR 48
Hume & Anor v R [1999] WASCA 64
Letts v King [1988] WAR 76

Case(s) also cited:

Ex parte Gleeson [1907] VLR 368
Halliday v Nevill (1984) 155 CLR 1
Ibbotson v Chaney (1998) 19 WAR 404
Julius v Lord Bishop of Oxford [1880] All ER 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)…

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 [2000] WASCA 264
Case: [2000] WASCA 264
Decision Date: 15 SEPTEMBER 2000

CaseChat Overview and Summary

Fisher v Ellerton involved the appellant, who was the owner of dogs that were seized by a ranger under the Dog Act 1976. The dogs were suspected of attacking a person, and the ranger was in pursuit of the dogs at the time of the seizure. The appellant contested the legality of the seizure, arguing that a warrant was required, and sought to have the dogs returned. The case was heard in the Supreme Court of Queensland.

The central legal issue was whether the ranger's actions in seizing the dogs without a warrant were lawful under the circumstances. The court had to consider whether the ranger's duties and powers under the Dog Act 1976, specifically section 29, justified the immediate seizure without a warrant, given the context of pursuing dogs that were suspected of attacking a person. The appellant's argument was that the statutory provisions required a warrant for such seizures, and that the ranger's actions were an improper interference with the discretion of the court.

The court found that the ranger's actions were justified under the Dog Act 1976. The relevant section of the Act did not mandate a warrant in situations where a ranger was actively pursuing dogs suspected of causing harm. The court emphasised that the ranger's role involved immediate action to prevent further attacks and to ensure public safety. It was held that the ranger's discretion to act without a warrant in these circumstances was appropriate and did not constitute an improper interference with judicial discretion. The appeal was dismissed, affirming the legality of the ranger's actions.

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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