Healey v Royal Society for Prevention of Cruelty to Animals Victoria (Ruling)
[2016] VCC 2000
•21 December 2016
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| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-16-03989
| HEATHER HEALEY | Plaintiff |
| v | |
| ROYAL SOCIETY FOR PREVENTION OF CRUELTY TO ANIMALS VICTORIA | Defendant |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 and 20 October 2016 | |
DATE OF RULING: | 21 December 2016 | |
CASE MAY BE CITED AS: | Healey v Royal Society for Prevention of Cruelty to Animals Victoria (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 2000 | |
RULING
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Subject:PRACTICE AND PROCEDURE
Catchwords: Conditional appearance – jurisdiction of the Court – whether in any event the proceeding be stayed – whether the County Court has jurisdiction to hear the proceeding, that is, is the proceeding a simple common law claim or an application for a prerogative writ or an order in the nature of a prerogative writ – if the proceeding is wholly or partly beyond the jurisdiction of the Court – whether the proceeding should be amended, stayed pending the making of an application under Part 3 of the Courts (Case Transfer) Act 1991 or be struck out – whether, in any event, the proceeding should be stayed to allow other proceedings to be determined.
Legislation Cited: Courts (Case Transfer) Act 1991; Prevention of Cruelty to Animals Act 1986; Sections 37and 39 of the County Court Act 1958, Rules 8.08 and 8.09 of the County Court Civil Procedure Rules 2008; Supreme Court (General Civil Procedure) Rules 2008
Cases Cited:Cowie v State Electricity Commission of Victoria [1964] VR 788; MiborInvestments Pty Ltd v Commonwealth Bank of Australia [1994] 2 VR 290; Ex parteBritt [1987] 1 Qd R 221; Sobh v Children’s Court of Victoria (1994) 74 A Crim R 453; Grollo v Palmer (1995) 184 CLR 348; Ousley v R (1997) 192 CLR 69; Director of Public Prosecutions v Debono (2012) 222 A Crim R 194; Holdsworth & Ellison v RSCPA (Vic) Incorporated [2014] VCC 1186; [2015] VCC 653; RSPCA v Holdsworth & Anor [2015] VSCA 243
Ruling: The Court finds that paragraphs 9-13 of the Amended Statement of Claim is an application in the nature of a prerogative writ. Pursuant to s39(2)(b) of the County Court Act 1958, the proceeding be stayed pending the making of an application under Part 3 of the Courts (Case Transfers) Act 1991.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P G Nash QC with Mr P W Lithgow | Maitland Lawyers |
| For the Defendant | Mr S Reid | TressCox Lawyers Minter Ellison (after 2 December) |
HIS HONOUR:
1 By way of Summons issued on 29 September 2016, the Royal Society for Prevention of Cruelty to Animals Victoria, which I shall refer to as “the defendant”, applies for the following orders:
(i)The Writ and Statement of Claim in proceeding CI-16-03989 (headed “Heather Healey v Royal Society for Prevention of Cruelty to Animals Victoria”) be set aside;
(ii)Alternatively, the proceeding be stayed;
(iii)The plaintiff pay the defendant’s costs of the application;
(iv)Such further or other order as the Court deems appropriate.
2 The basis of such application is that the defendant submits that the County Court has no jurisdiction to hear and determine the proceeding and, furthermore, there are “other reasons that the Court should not hear in determining the proceedings”. It is alleged that, in any event, the proceeding should be stayed in order for the Supreme Court to determine other matters involving the same issues.
3 The defendant relies on an affidavit of Maria Kerhoulas, sworn 29 September 2016 (“the affidavit”). Ms Kerhoulas is a partner of TressCox Lawyers, the solicitors acting on behalf of the defendant.
Background facts
4 Heather Healey, who I shall refer to as “the plaintiff”, carried on business and partnership as a breeder of pedigree Chihuahua and Tibetan Spaniels, trading under the registered business name of Kethran Kennels. On 7 June 2016, various officers of the defendant attended and entered the property pursuant to a warrant issued pursuant to s24G of the Prevention of Cruelty to Animals Act 1986 (“the POCTA Act”) and seized fifty-two dogs and puppies and removed them from the property.
The proceeding
5 On or about 6 September 2016, a Writ, accompanied by a Statement of Claim, was issued on behalf of the plaintiff. I set out the Statement of Claim as it then stood:
“1. The Plaintiff is and was at all material times:
(a)carrying on business in partnership as a breeder of pedigree Chihuahua and Tibetan Spaniels (‘the business’);
(b)trading under the registered business name ‘Kethran Kennels’;
(c)carrying on the business from premises at 2 – 4 Correll Street, Longwood in the State of Victoria (‘the property’);
(d)had the possession and control of a number of dogs and puppies on the property (‘the dogs’);
(e)entitled to the exclusive occupation and possession of the property; and
(f)entitled to possession of the dogs on the property.
2.The Defendant is and was at all material times a body corporate incorporated pursuant to law.
PARTICULARS
Section 3(a) of the Royal Society for Prevention of Cruelty to Animals Act 1968 (Vic) provides the Defendant has been deemed to be a body corporate at all material times since 18 October 1895.
3. The Defendant, its servants and agents owed to the Plaintiff duties:
(a) to act fairly;
(b) to accord her procedural fairness; and
(c) to provide her an opportunity to be properly heard;
in relation to any decision made or to be made by it in relation to the Plaintiff’s rights over and interest in relation to the dogs owned by or under the care and control of the Plaintiff.
PARTICULARS
The duties arise as a matter of law, as the Plaintiff’s legal rights and reputation would be affected by any decision taken by the Defendant which adversely affected the Plaintiff’s rights or interests in relation to the dogs.
4.On 7 June 2016 two officers of the Defendant and 10 – 15 other persons (collectively “the officers”) attended at and entered the property pursuant to a warrant issued pursuant to s 24G of the Prevention of Cruelty to Animals Act 1986 (‘POCTA Act’) (‘the warrant’).
PARTICULARS
The Defendant’s officers were Lisa Calleja and Simon Primose and the other officers are unknown save in that two officers were police officers and one officer was a Ranger from the Shire of Strathbogie.
5.Pursuant to the warrant the Defendant by its servants and agents seized 52 dogs and puppies in the possession of the Plaintiff and removed them from the property (‘the dog seizure’).
6.This warrant was unlawful.
PARTICULARS
A.A warrant pursuant to s 24G of the POCTA Act can only be obtained with the written approval of the Head of the Department of Economic Development, Jobs Transport and Resources (‘the HoD’) or his or her delegate.
There was no written approval of the HoD or his or her delegate for the application for the warrant.
B.The warrant on its face does no disclose any or any sufficient grounds within the meaning of s 24(G)(1(a) – (d) of the POCTA Act.
7.Alternatively, the warrant was obtained on the basis of an invalid delegration purportedly made under s 38(2) of the POCTA Act by the HoD, not being a delegation to a person but rather being an invalid delegation to the holder of an office.
8.Further, there were no reasonable grounds for the Defendant, its servants or agents to make an application for the warrant within the meaning of s 24G(1) of the POCTA Act.
PARTICULARS
A. The dogs were not abandoned, diseased, distressed or disabled within the meaning of s 24G(2)(a) [of] the POCTA Act.
B. There were no reasonable grounds to believe the grounds in s 24G(2)(b) – (d) of the POCTA Act were made out,
C. The dogs were in reasonable health and condition and exercised daily.
D. The dogs were under the care and surveillance of veterinarians.
E. The Plaintiff was given no opportunity to respond to any allegations in regard to the alleged ill-treatment of the dogs.
F. The Plaintiff has a long and satisfactory history of breeding and showing dogs.
G. The Plaintiff’s dogs were kept and cared for in accordance with the Code of Practice for the Operation of Breeding and Rearing Businesses 2014 (July 2015 version).
H. There were no adverse reports arising from prior inspections of the property and the dogs.
I. There were no contraventions of the POCTA Act or regulations that had occurred prior to or at the time of the search and seizure.
9.Further, in:
(a)applying for the warrant; and / or
(b)carrying out the dog seizure;
the Defendant breached the duties set out in paragraph 3 hereof.
PARTICULARS
The Plaintiff refers to and repeats the Particulars set out under paragraph 8 hereof.
Further, the warrant failed to name or otherwise identify (other than the Police Officers and registered veterinary practitioner) the officers who attended the dog seizure within the meaning of s 24G(3) of the POCTA Act.
10.In the premises the obtaining of the warrant and the dog seizure are unlawful.
11.By reason of the matters aforesaid, the Plaintiff has suffered loss and damage.”
6 According to the affidavit, the Writ was served on 7 September 2016. A Notice of Conditional Appearance was filed on behalf of the defendant on 16 September 2016. Such Notice of Conditional Appearance is pursuant to Rule 8.08 of the County Court Civil Procedure Rules 2008, which states:
“(1) A defendant may file a conditional appearance.
(2) A notice of conditional appearance shall be –
(a) in Form 8B; or
(b) … .
(3) A conditional appearance shall have effect for all purposes as an unconditional appearance, unless on application by the defendant, the Court otherwise orders.
(4)Application under paragraph (3) shall be made by summons within 14 days after the day the conditional appearance is filed.”
7 In their written submissions, counsel for the plaintiff submitted that the provision for a conditional appearance to be entered is designed primarily to cope with the problem faced by a person who does not acknowledge that the Court has jurisdiction either in relation to the person or in relation to the subject matter of the proceeding. In particular, it was submitted that a conditional appearance:
“… is not designed or intended as a preliminary to a stay application or any other application directed to the discretion of the Court as to whether or not to proceed with the hearing of the claim filed.”
8 In his written submissions, counsel for the defendant submits there are two bases for a conditional appearance – the first being that the Statement of Claim alleges matters that are beyond the jurisdiction of the County Court and, secondly, on an alternative basis, the claims being advanced by the plaintiff share a “striking similarity with other claims being brought by the solicitor of the plaintiff in the Supreme Court and Magistrates’ Court that have not been adjudicated upon”.
9 Reference is made by counsel for the defendant to the commentary in Williams pertinent to Rule 8.08, where, at 8.08.10, it is stated:
“A conditional appearance is an appearance which the defendant reserves the right to argue that the court lacks jurisdiction, or that the proceeding is irregular, or that for some other reason the court should not hear and determine the proceeding, and that therefore, the court ought to set aside the originating process or its service or order a stay of the proceeding.”
10 I also refer to Rule 8.09 of the County Court Civil Procedure Rules 2008, which state:
“Notwithstanding Rule 8.08, the Court, on application made by the defendant before filing an appearance, whether conditional or not, may exercise its jurisdiction to —
(a) set aside a writ or originating motion or its service;
(b) make an order under Rule 46.08; or
(c) stay a proceeding.”
The jurisdiction of the County Court
11 Section 37 of the County Court Act 1958 provides:
“(1) The court has jurisdiction to hear and determine—
(a) all applications, claims, disputes and civil proceedings regardless of the type of relief sought or the subject-matter as are not by this or any other Act excluded from its jurisdiction; and
(b) all civil proceedings against municipal councils in respect of loss or injury sustained by persons or property by reason of accidents, upon or while using any highway, street, road, bridge, ferry or jetty or upon or in or while using any paths or any land or building under the control of a municipal council; and
(c) all other civil proceedings in respect of which jurisdiction is given to the court by this or any other Act.
(2) The court does not have jurisdiction to hear or determine any application, claim, dispute or other civil proceeding (other than proceedings to which subsection (1)(b) or (c) applies)—
(c) brought by application for a prerogative writ or an order in the nature of a prerogative writ; or
(d) brought upon a judgment of the Supreme Court.”
(Emphasis added).
12 I also refer to s39 of the County Court Act 1958, which states:
“(2)If a civil proceeding is wholly or partly beyond the jurisdiction of the court, the court may—
(a) amend the originating process for the purpose of bringing the proceeding within jurisdiction; or
(b) order that the proceeding be stayed pending the making of an application under Part 3 of the Courts (Case Transfer) Act 1991; or
(c) order that the proceeding be struck out and award costs as if the court had jurisdiction and the proceeding were dismissed.
(3) If—
(a) under subsection (2)(b) the court orders that a civil proceeding be stayed pending the making of an application under Part 3 of the Courts (Case Transfer) Act 1991; and
(b) within a reasonable time after the making of that order the proceeding has not been transferred to the Supreme Court—
the court may exercise the power conferred by subsection (2)(c).”
(Emphasis added).
The Prevention of Cruelty to Animals Act 1986
13 The POCTA Act consists of nine parts and, in particular, Part 2A, which is headed “Enforcement”. Division 3 of Part 2A is headed “Search for and seizure of animals, warrants and authorisations” and Division 4 of Part 2A is headed “Search for and seizure of things”.
14 Section 24G of the POCTA Act, contained within Division 3 of Part 2A of the Act, is headed “Search warrants for at risk animals on premises”. Such section reads:
“(1) A POCTA inspector, with the written approval of the Department Head, may apply to a magistrate for the issue of a search warrant in relation to premises (including residential premises), if the inspector believes on reasonable grounds that there is in or on the premises—
(a) an abandoned, diseased, distressed or disabled animal; or
(b) an animal, the welfare of which the inspector believes on reasonable grounds is at risk; or
…
(2) If a magistrate is satisfied, by the evidence, on oath or by affidavit, of the POCTA inspector that there are reasonable grounds to believe that there is in or on the premises—
(a) an abandoned, diseased, distressed or disabled animal; or
(b) an animal, the welfare of which the inspector believes on reasonable grounds is at risk; or
…
the magistrate may issue a search warrant in accordance with the Magistrates’ Court Act 1989.
(3) A search warrant issued under this section may authorise a POCTA inspector named in the warrant, or another POCTA inspector who is acting on behalf of that inspector, together with any police officer or any other person or persons named or otherwise identified in the warrant and with any necessary equipment—
(a) to enter the premises specified in the warrant; and
(b) to search for an animal, or an animal of a particular kind, named or referred to in the warrant; and
(c) to seize an animal, or an animal of a particular kind, named or referred to in the warrant, and to take the animal to any place that the inspector thinks fit; and
(d) to retain possession of any animal seized for the time specified in the warrant; and
(e) to examine or inspect an animal, or an animal of a particular kind, named or referred to in the warrant, that is found in or on the premises, to determine if the animal requires treatment by a veterinary practitioner; and
(f)to feed and water an animal, or an animal of a particular kind, named or referred to in the warrant, that is found in or on the premises; and
… .”
15 Section 24K of the POCTA Act contained in Division 4 of Part 2A of the Act is headed “Search warrants for premises”. Such section reads:
“(1) A POCTA inspector, with the written approval of the Department Head, may apply to a magistrate for the issue of a search warrant in relation to premises (including residential premises), if the inspector believes on reasonable grounds that there is in or on the premises a thing or things of a particular kind connected with a contravention of this Act or regulations under this Act.
(2) If a magistrate is satisfied, by the evidence, on oath or by affidavit, of the inspector that there are reasonable grounds to believe that there is a thing or things of a particular kind connected with a contravention of this Act or regulations under this Act in or on any premises, the magistrate may issue a search warrant, in accordance with the Magistrates’ Court Act 1989, authorising a POCTA inspector named in the warrant, or another POCTA inspector who is acting on behalf of that inspector, together with any other person or persons named or otherwise identified in the warrant and with any necessary equipment—
(a) to enter the premises specified in the warrant; and
(b) to do all or any of the following—
(i) search for;
(ii) seize;
(iii) secure against interference;
(iv) examine, inspect and take and keep samples of or from;
(v) take photographs (including video recordings) of—
a thing or things of a particular kind named or described in the warrant and which the inspector believes, on reasonable grounds, to be connected with the alleged contravention.”
16 I also refer to Division 6 of Part 2A of the POCTA Act, which is headed “Duties and powers as to seized animals”. In particular, s24X of the Act, which is headed “Court orders as to costs and disposal of animals”, states:
“(1) If an animal has been seized under this Part and—
(a) [not relevant] …
(b) [not relevant] …
(c) [not relevant] …
(d) the person who seized the animal reasonably believes that the welfare of the animal would be at risk if the animal were returned to the owner or person in charge of the animal—
the person who seized the animal may apply to the Magistrates' Court, or cause an application to be made to the Magistrates' Court for an order under this section.
(2) On application under subsection (1), the Magistrates' Court may make an order as to one or more of the following—
(a) if the animal is not being returned to the owner or person in charge of the animal because there are proceedings against the owner or person in charge of the animal for an offence against this Act or regulations under this Act in relation to the animal, that—
(i) the owner or person in charge of the animal pay—
(A) a bond or security to the applicant to provide for the care and maintenance of the animal; or
(B) any identified costs for the care and maintenance of the animal—
for the whole or any part of the period of time during which the proceedings are being prosecuted; and
(ii) any money left over from any payment made under paragraph (a)(i) at the end of the proceedings be repaid to the person who paid the bond or security;
(b) in any case where the Court has ordered a payment under paragraph (a), that the animal be disposed of in accordance with this Division if the payment is not made in accordance with the order;
(c) that the animal be disposed of in accordance with this Division if the owner or person in charge of the animal is or has been found guilty of an offence against this Act or regulations under this Act within the preceding 10 years;
(d) that the animal be disposed of in accordance with this Division if the Court reasonably believes that the welfare of the animal would be at risk if the animal were returned to the owner or person in charge of the animal;
(e) that the animal be disposed of in accordance with this Division if the Court reasonably believes that the owner or person in charge of the animal is holding the animal in contravention of an order under section 12(1) or an interstate order within the meaning of section 12A, that is registered under that section.
(3) If the Court is not satisfied that an order should be made under subsection (2), the Court may order that the animal be returned to the owner or person in charge of the animal.
(4) If the Court orders that the animal be returned to the owner or person in charge of the animal under subsection (3)—
(a) the owner or person in charge of the animal may recover the animal within 7 days after the making of the order; and
(b) if the animal is not recovered within 7 days after the making of the order, the animal may be disposed of in accordance with this Division.”
(Emphasis added).
The Plaintiff’s objections to the affidavit
17 In their written submissions, counsel for the plaintiff set out their objections to the contents of paragraphs 6, 8, 9, 11, 12 ,13, 14 and 15 of the affidavit. In particular, it was submitted:
(a)Paragraph 6 of the affidavit contains hearsay material which is admissible in an interlocutory application (see Rule 43.03(2) of the County Court Civil Procedure Rules 2008), but which is not admissible in a proceeding which is not “truly interlocutory”;[1]
(b)Paragraphs 8 and 9 contain “irrelevant matters” which deal with different proceedings involving a different plaintiff;
(c)Paragraph 11 is argumentative;
(d)Paragraph 12 is a question of law and not relevant to the present County Court proceeding;
(e)Paragraph 13 is opinion and a question of law, or is argumentative and amounts to a submission. The deponent of the affidavit has neither the expertise nor the authority to give expert evidence on this matter;
(f)Paragraph 14 is opinion and a question of law, or is argumentative and amounts to a submission as to the proper course to be followed by the plaintiff;
(g)Paragraph 15 is an opinion and a question of law and the deponent is not qualified to depose to the jurisdiction of the Court.
[1]Reference was made to Cowie v State Electricity Commission of Victoria [1964] VR 788 at 789; MiborInvestments Pty Ltd v Commonwealth Bank of Australia [1994] 2 VR 290 at 368; Ex parteBritt [1987] 1 Qd R 221 at 223-227; Sobh v Children’s Court of Victoria (1994) 74 A Crim R 453
18 Senior Counsel for the plaintiff described some of these objections as “technical” but others were of “substance”. He accepted that the criticism of paragraph 6 was one of the “minor matters”. I tend to agree with such observation.
19 The factual material contained in paragraph 6 which does contain “hearsay material” is largely not controversial, save for paragraph 6(e) that various dogs found by the POCTA inspector were “confined in small cages and/or living in squalid conditions both inside and outside the residence situated on the property”.
20 In any event, it is not clear that the application is anything other than “truly interlocutory”. In this respect, I refer to one of the cases relied on by counsel for the plaintiff: Mibor Investments Pty Ltd v Commonwealth Bank of Australia,[2] a decision of Hayne J, when he was a member of the Supreme Court of Victoria. In particular, he stated:
“The question whether an application is interlocutory for the purposes of r 43.03(2) is not to be decided according to whether the order made on determination of the application would be interlocutory for purposes of appeal (see eg Cowie v State Electricity Commission of Victoria [1964] VR 788 at 789 ). It is to be determined according to whether the application will decide the rights of parties or is:
‘... made for the purpose of keeping things in status quo till the rights can be decided, or for the purpose of obtaining some direction of the court as to how the cause is to be conducted, as to what is to be done in the progress of the cause for the purpose of enabling the court ultimately to decide upon the rights of the parties. Gilbert v Endean (1878) 9 Ch D 259 at 268 per Cotton LJ.’”
[2]Op cit
21 In the event that the Court should so find that it has no jurisdiction to entertain the proceeding, such a decision does not ultimately decide the rights of the parties – that plaintiff can bring review proceedings in the Supreme Court. I should stress that I did not invite argument on this point given what I have stated above.
22 Counsel for the defendant submitted that paragraphs 8 and 9 are “relevant” in relation to the second aspect of the claim made by the defendant – that is, the proceeding should be stayed in order for the Supreme Court to determine other matters involving the same issues raised in this proceeding. Paragraph 9 gives details of Magistrates’ Court proceeding Z01103898, issued on 10 February 2016 by Kaete Weisheit against the Department of Economic Development, Jobs, Transport and Resources, seeking the return of animals seized pursuant to a warrant on 26 February 2016 (pursuant to s24G of the POCTA Act). Application has been made to substitute the RSPCA in that proceeding. Reference is also made to proceeding SCI 2016 00628, issued by the Weisheit’s on 23 February 2016 in the Supreme Court in Victoria against the RSPCA and the State of Victoria, in relation to the seizure of a number of horses.
23 It is submitted by the defendant that the allegations made by the plaintiff as to the unlawfulness of the warrant issued pursuant to s24G of the POCTA Act in this proceeding are premised upon the same allegations as made in the Magistrates’ Court and Supreme Court proceedings issued by the Weisheit’s. Allegations include:
(a)There was no written approval by the head of the department or his/her delegate for the application for the s24G warrant;
(b)The s24G warrant does not disclose sufficient grounds;
(c)An invalid delegation was made under s38(2) of the POCTA Act;
(d)There were no reasonable grounds for the application of the issue of the 24G warrant.
24 I accept that this material is potentially relevant in the disposition of the matter.
25 In relation to the contents of paragraphs 11, 12, 13, 14 and 15, I consider such contents are largely argumentative, express inappropriate opinions and assert questions of law. Obviously enough, the Court will come to its own view as to the merits of the application. In all the circumstances, I consider that paragraphs 11, 12, 13, 14 and 15 of the affidavit should be struck out.
The submissions of the Defendant
26 On the first day of hearing, counsel for the defendant made the following submissions in relation to the Statement of Claim which accompanied the Writ issued on 6 September 2016:
(a)The subject proceeding is a civil proceeding seeking leave in the nature of a prerogative writ. Section 37(2)(c) of the County Court Act 1958 provides that the Court does not have jurisdiction in any claim seeking an order in the nature of a prerogative writ;
(b)A perusal of the pleadings and the leave sought is in the nature of a prerogative writ. In particular, reference was made to:
(i)Paragraph 4 of the Statement of Claim refers to two officers of the defendant attending and entering the property pursuant to a warrant issued pursuant to s24G of the POCTA Act;
(ii)Paragraph 5 of the Statement of Claim pleads that “pursuant to the warrant”, the defendant “seized” the various dogs and puppies;
(iii)Paragraph 6 of the Statement of Claim pleads that “the warrant was unlawful”;
(iv)Particular B of Paragraph 6 of the Statement of Claim pleads:
“The warrant on its face does not disclose any or any sufficient grounds within the meaning of s 24G(1)(a) – (d) of the POCTA Act.”
(v)Paragraph 8 of the Statement of Claim pleads that “there were no reasonable grounds for the Defendant, its servants or agents to make an application for the warrant” within the meaning of s 24G(1) of the POCTA Act;
(vi)Paragraph 9 of the Statement of Claim pleads:
“Further, in:
(a) applying for the warrant; and / or
(b) carrying out the dog seizure;
The Defendant breached the duties set out in paragraph 3 hereof.”
(vii)Paragraph 10 of the Statement of Claim pleads that:
“In the premises the obtaining of the warrant and the dog seizure are unlawful.”
(viii)In the prayer for relief of the Statement of Claim, the plaintiff applies for, amongst other things:
“A. A declaration that the warrant was invalid.
B.A declaration that the dog seizure was unlawful (and here, this seizure is pursuant to warrant.)
C. …
D. … .”
(Emphasis added).
27 Counsel for the defendant submitted that those parts of the claim and relief emphasised above make good the submission that the subject proceeding is a civil proceeding brought by application for a prerogative writ or an order in the nature of a prerogative writ. In particular, counsel for the defendant submits:
(a) Paragraphs 4 and 5 of the Statement of Claim plead that entry to the plaintiff’s premises was made “pursuant to warrant” under s24G of the POCTA Act. In regard to a warrant, so counsel submits, it is pleaded, at paragraph [3] of the Statement of Claim, that the defendant (and its servants and agents) owed a duty to the plaintiff “to act fairly”, “to accord her procedural fairness” and “to provide her an opportunity to be properly heard” in relation to any decision made or to be made by the defendant in relation to the plaintiff’s rights over and interest in relation to the dogs owned by or under the care or control of the plaintiff. It is submitted that the jurisdiction to review the decisions of inferior courts is the domain of the Supreme Court;
(b) At paragraph 6 of the Statement of the Claim, it is pleaded the warrant was unlawful because of the alleged defect in delegation and that the warrant, on its face, did not disclose any or sufficient grounds with reference to s24G(1)(a) – (d) of the POCTA Act. It was submitted that this “appears to be an error on the face of the record style claim”.
Section 24G(2) of the POCTA Act permits a magistrate to issue a search warrant if satisfied by the evidence on oath or affidavit of a POCTA inspector that there are reasonable grounds for believing that one or more of the criteria set out in s24G(1)(a) – (d) have been made out. In this case, so it is submitted, the plaintiff accepts that a search warrant was issued and that an entry was made and animals were seized pursuant to it. To seek to impugn the warrant on either an error on the face of the warrant, or concerns as to delegation, properly goes to an application under Order 56 of the Supreme Court (General Civil Procedure) Rules 2005;
(c) In paragraph 8 of the Statement of Claim, it is pleaded that there were no reasonable grounds for the defendant (or the others listed) to make the application for the warrant. This does not assist or advance the plaintiff’s claim, as the relevant magistrate adjudicates upon the reasonableness of the belief and may (or may not) issue a warrant. In this case, a warrant did issue;
It was further submitted that under the lawful authority provided by the warrant, authorised POCTA inspectors and others seized animals as they were permitted to do. It was submitted that the County Court is being asked to adjudicate upon the validity of the warrant issued by the Magistrates’ Court (with the Magistrates’ Court not being a party to the proceeding) and a pleaded duty said to attach to the defendant in making the application for the warrant itself. It was submitted, that when this is viewed in the context of the relief claimed, namely declarations that the warrant was invalid and the seizure unlawful, this is “unambiguously a claim in the nature of a prerogative writ”.
28 Counsel for the defendant also highlighted two other “features” pointing to this proceeding being the nature of a prerogative writ:
(a)A warrant issued under s24G of the POCTA Act is an administrative act, not a judicial one. The exercise of powers by the magistrate under this section in issuing a warrant does not involve any determination of the rights of the party. Reference is made to Grollo v Palmer;[3] Ousley v R[4] and Director of Public Prosecutions v Debono.[5]
(b)The POCTA Act does not confer a right of appeal from a decision of a magistrate to issue a warrant and any review of the lawfulness or the validity in seizures arising from such activities are not amenable to adjudication such as brought in this pleading. Given the content of the pleading, this is a judicial review case seeking a review of the decision of a magistrate to issue a warrant. Ultimately, counsel for the defendant submitted that the proper avenue to adjudicate this issues was pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2008.
[3](1995) 184 CLR 348 at 359-60; 379, 386 and 389
[4](1997) 192 CLR 69 at 84-85, 87, 100, 121, 130 and 145-146
[5](2012) 222 A Crim R 194 at paragraphs [58]-[61], wherein Kyrou J refers to the passages in Ousley (op cit)
Submissions of the Plaintiff
29 It was submitted that the proceeding brought by the plaintiff is a common law proceeding alleging a wrongful interference with the plaintiff’s right to possession and ownership of the animals. In particular, it is alleged that there are specific allegations that:
(a)The defendant breached duties owed to the plaintiff in making decisions affecting the plaintiff and her dogs (see paragraph 3 of the Statement of Claim); and
(b)The warrant to seize was unlawful (see paragraphs 6 – 8 of the Statement of Claim) and, as a consequence, the plaintiff has suffered loss and damage. It was submitted that there is “no basis whatsoever” for the defendant to challenge the jurisdiction of the Court. It was submitted that the subject proceeding is similar to the proceeding in Holdsworth & Ellison v RSCPA (Vic) Incorporated[6] and, on appeal, RSPCA v Holdsworth & Anor.[7] In this respect, it was submitted that there was no challenge mounted to the jurisdiction of the County Court to hear that matter at first instance and it was implicit in the reasoning of the trial judge and the Court of Appeal, there was no question that the County Court did have an appropriate jurisdiction.
[6][2014] VCC 1186; [2015] VCC 653
[7][2015] VSCA 243
30 In essence, it was submitted to the Court that the plaintiff was doing more than exercising her common law rights on the basis that no valid warrant had been issued, that is to say, it was not the decision of the magistrate that was being impugned, it is the prerequisites to the making of the application to obtain the warrant.
31 When making submissions on 12 October 2016, Senior Counsel for the plaintiff indicated that it would be convenient to amend certain aspects of the Statement of Claim to make clear the cause of action. Ultimately, I acceded to such application and the matter was adjourned to 20 October 2016 for amendments to be made to the Statement of Claim.
32 On 20 October 2016, the plaintiff filed the Proposed Amended Statement of Claim made pursuant to my Order on 12 October 2016. I set out the Amended Statement of Claim:
“1. The Plaintiff is and was at all material times:
(a) carrying on business in partnership as a breeder of pedigree Chihuahua and Tibetan Spaniels (‘the business’);
(b) trading under the registered business name ‘Kethran Kennels’;
(c) carrying on the business from premises at 2 – 4 Correll Street, Longwood in the State of Victoria (‘the property’);
(d) had the possession and control of a number of dogs and puppies n the property (‘the dogs’);
(e) entitled to the exclusive occupation and possession of the property; and
(f) entitled to possession of the dogs on the property.
2.The Defendant is and was at all material times a body corporate incorporated pursuant to law.
PARTICULARS
Section 3(a) of the Royal Society for Prevention of Cruelty to Animals Act 1968 (Vic) provides the Defendant has been deemed to be a body corporate at all material times since 18 October 1895.
3. The Defendant, its servants and agents owed to the Plaintiff duties:
(a) to act fairly;
(b) to accord her procedural fairness; and
(c) to provide her an opportunity to be properly heard;
in relation to any decision made or to be made by it in relation to the Plaintiff’s rights over and interest in relation to the dogs owned by or under the care and control of the Plaintiff.
PARTICULARS
The duties arise as a matter of law, as the Plaintiff’s legal rights and reputation would be affected by any decision taken by the Defendant which adversely affected the Plaintiff’s rights or interest in relation to the dogs.
4.On 7 June 2016 two officers of the Defendant and 10 – 15 other person (collectively the officers”) attended at and entered the property pursuant to
atwo warrants issued pursuant to s 24G and s 24K of the Prevention of Cruelty to Animals Act 1985 (“POCTA Act”) (“the warrants”).PARTICULARS
The Defendant’s officers were Lisa Calleja and Simon Primose and the other officers are unknown save in that two officers were police officers and one officer was a Ranger from the Shire of Strathbogie.
5.Purportedly acting pursuant to the warrants the Defendant by its servants and agents seized 52 dogs and puppies in the possession of the Plaintiff and removed them from the property (‘the dog seizure’).
6.Warrants pursuant to s 24G and s24K of the POCTA Act can only be applied for
obtainedwith the written approval of the Head of the Department of Economic Development, Jobs Transport and Resources (‘the HoD’) or his or her delegate.7.There was no written approval of the HoD or his or her delegate for the application for the warrants.
A.The warrant on its face does not disclose any or any sufficient grounds within the meaning of s 24(G)(1)(a) – (d) of the POCTA Act.
8.Alternatively to 7, the warrants were
wasobtained on the basis of an invalid delegation purportedly made under s 38(2) of the POCTA Act by the HoD, not being a delegation to a person but rather being an invalid delegation to the holder of an office.9.Further, there were no reasonable grounds for the Defendant, its servants or agents to make an application for the warrants within the meaning of s 24G(1) and s 24K(1) of the POCTA Act.
PARTICULARS
A.The dogs were not abandoned, diseased, distressed or disabled within the meaning of s 24G(2)(a) the POCTA Act.
B.There were no reasonable grounds to believe the grounds in s 24G(2)(b) – (d) of the POCTA Act were made out,
C.The dogs were in reasonable health and condition and exercised daily.
D.The dogs were under the care and surveillance of veterinarians.
E.The Plaintiff was given no opportunity to respond to any allegations in regard to alleged ill-treatment of the dogs.
F.The Plaintiff has a long and satisfactory history of breeding and showing dogs.
G.The Plaintiff’s dogs were kept and cared for in accordance with the Code of Practice for the Operation of Breeding and Rearing Businesses 2014 (July 2015 version).
H.There were no adverse reports arising from prior inspections of the property and the dogs.
I.There were no contraventions of the POCTA Act or regulations that had occurred prior to or at the time of the search and seizure.
10.In the premises the warrants were ineffective.
11.Further, in:
(a)applying for the warrants; and / or
(b)carrying out the dog seizure;
the Defendant breached the duties set out in paragraph 3 hereof.
PARTICULARS
The Plaintiff refers to and repeats the Particulars set out under paragraph 9 hereof.
Further, the Defendant did not make enquiries of, discuss with or seek the views of the Plaintiff or the Plaintiff’s veterinarian prior to the dog seizure.
Further, the warrant failed to name or otherwise identify (other than the Police Officers and registered veterinary practitioner) the officers who attended the dog seizure within the meaning of s 24G(3) of the POCTA Act.
12.Further or in the alternative:
(a) Section 24G of the POCTA Act provides for the search for and seizure of animals:
(i)abandoned, diseased, distressed or disabled; or
(ii)at risk; or
(iii)subject to cruelty within the meaning of ss 9 & 10 of the POCTA Act; or
(iv)subject to prohibited procedures within the meaning of s 11A of the POCTA Act; or
(v)at risk of being involved in baiting or luring within the meaning of s 13 of the POCTA Act; or
(vi)owned or under the control of a disqualified person within the meaning of ss 12 and 12A of the POCTA Act.
(collectively ‘animals at risk’)
(b)Section 24K of the POCTA Act provides for the search for and seizure of things connected with a contravention of the POCTA Act and regulations.
(c)The ambit of warrants issued under ss 24G & 24K must be interpreted as limited to search and seizure within the scope and authority of those sections;
(d)The officers executing the warrants did not limit their seizure to animals at risk but seized animals not at risk;
(e)The officers executing the warrants did not limit their seizure to things connected with alleged contraventions of the POCTA Act and regulations;
(f)The officers thereby exceeded any authority given them by the warrants issued pursuant to sections 24G and 24K of the POCTA Act;
(g)In the premises the seizure of the dogs and things was unlawful, or alternatively was pro tanto unlawful.
13.In the premises the obtaining of the warrants and the dog seizure and the seizure of things
arewere unlawful.14.By reason of the matters aforesaid, the Plaintiff has suffered loss and damage.
AND THE PLAINTIFF CLAIMS
A.a declaration that the prerequisites to the application for the warrants were not satisfied
warrant was invalidAA.A declaration that the search and seizure carried out by the defendant were beyond any authority purportedly given by the warrants
B.A declaration that the dog seizure was unlawful.
C.An Order for the return of the dogs seized on 7 June 2016.
D.An injunction, both interlocutory and perpetual restraining the Defendant from taking any steps to destroy or otherwise dispose of any of the dogs seized on 7 June 2016.
E.Damages.
F.Costs.
G.Such further or other Order as this Honourable Court deems fit.”
The Amended Statement of Claim
33 Unfortunately, it is difficult to note the amendments to the original Statement of Claim as not all amendments have been “marked up”. However, I note the following:
(a)There would appear to be no amendments to paragraphs 1, 2 and 3 of the original Statement of Claim;
(b)Paragraph 4 is amended by deleting the word “a” in front of the word “warrant” which is made “warrants” in line two. Furthermore, the words “and s 24K” are added after the words “section 24G” in line 3;
(c)Paragraph 5 is amended by adding the word “purportedly acting” in front of the word “pursuant” in the first line;
(d)Paragraph 6, including the particulars, have been deleted and the following words have been inserted:
“Warrants pursuant to s 24G and s24K of the POCTA Act can only be applied for with the written approval of the Head of the Department of Economic Development, Jobs Transport and Resources (‘the HoD’) or his or her delegate.”
(e)Paragraph 7 of the Statement of Claim has been deleted and the following words have been inserted:
“There was no written approval of the HoD or his or her delegate for the application for the warrants.”
(f)Paragraph 8 has been deleted and the following words have been inserted:
“Alternatively to 7, the warrants were obtained on the basis of an invalid delegation purportedly made under s 38(2) of the POCTA Act by the HoD, not being a delegation to a person but rather being an invalid delegation to the holder of an office.”
(g)Paragraph 9 has been deleted and the old paragraph 8 has been substituted with the addition of the words “and s24K(1)” in the second line after the words “24G(1)”;
(h) Paragraph 10 has been deleted and the following words inserted:
“In the premises the warrants were ineffective.”
(i) Paragraph 11 has been deleted and the following words inserted:
“Further, in:
(a) applying for the warrants; and / or
(b) carrying out the dog seizure;
The Defendant breached the duties set out in paragraph 3 hereof.
PARTICULARS
The Plaintiff refers to and repeats the Particulars set out under paragraph 9 hereof.
Further, the Defendant did not make enquiries of, discuss with or seek the views of the Plaintiff or the Plaintiff’s veterinarian prior to the dog seizure.”
(j)The Amended Statement of Claim inserts a new paragraph 12. Such paragraph is set out earlier in the Amended Statement of Claim and it is not necessary to repeat it;
(k)The Amended Statement of Claim contains a new paragraph 13, which is in similar terms to the old paragraph 10 and a new paragraph 14, which is in the same terms as the old paragraph 11;
(l)In the prayer for relief, paragraph A adds the words “prerequisites to the application for the warrants were not satisfied” after the words “a declaration that the”. There are new paragraphs AA and CC, which read:
“AAA declaration that the search and seizure carried out by the defendant were beyond any authority purportedly given by the warrants.”
CCAn order for the return of the things seized on 7 June 2016.”
Further submissions of the Defendant
34 At the further hearing of the matter, counsel for the defendant maintained his primary submission that the claim continues to seek relief in the form of prerogative writs. Fundamentally he submitted, that the Amended Statement of Claim would still require the County Court “to enter impermissibly into an analysis of the validity of warrants issued pursuant to s24G and 25K of the POCTA Act”. In particular, counsel for the defendant notes that the Amended Statement of Claim pleads:
(a) That the defendant and others owe duties to the plaintiff expressed, so it is submitted, as “judicial review principles” in paragraph 3 of the Amended Statement of Claim;
(b) The POCTA officers attended and entered the property pursuant to warrants (two now rather than one);
(c) That certain animals and things were seized pursuant to the warrants;
(d) That there was alleged absence of authority by the POCTA officers to apply for the warrants;
(e) That there were no reasonable grounds for servants or agents of the defendant to apply for the warrants;
(f) That “in the premises” the warrants are “ineffective” (paragraph 10 of the Amended Statement of Claim which effectively replaces the word “unlawful” with “ineffective”);
(g) That “in the premises” the obtaining of the warrants and the dog seizure and the seizure things was unlawful.
35 Counsel for the defendant also notes that notwithstanding the amendments, the relief still seeks declarations, inter alia, that the prerequisites for obtaining the warrants “were not satisfied”; the search and seizures were “beyond any authority purportedly given by the warrant”, and that the dog seizure was “unlawful”.
36 It is submitted by counsel for the defendant that the claim in its amended form “impermissibly seeks in the County Court an order in the nature of a prerogative writ”. In particular, it was submitted that insofar as the claim seeks to impugn the actions of the defendants and its servants and agents (as opposed to the warrant for themselves), any such attack is unsustainable in the absence of a warrant being set aside on judicial review.
37 Counsel for the defendant note that the amendments again retain references to the warrants and the plaintiff continues to plead a case that relies upon attack on the warrants and the making of an application for same. It is submitted that the “problem remains” that a magistrate issued the warrants, the Magistrates’ Court is not a party and the Amended Statement of Claim continues to seek relief in the nature of a prerogative Writ.
38 Ultimately, it is submitted that the Statement of Claim as presently pleaded by the plaintiff calls for an exercise of judicial review of the warrant. As pointed out by counsel for the defendant, any defence to the Amended Statement of Claim would include pleading, amongst other things, that the POCTA inspectors acted at all times pursuant to power and authority. In such circumstances, the Court would “fairly and squarely” be asked to determine the validity of those actions and the lawfulness of the warrants. It was submitted that this is inherent in respect to the allegations contained in paragraphs [9] – [13] of the Amended Statement of Claim.
39 Furthermore, it was submitted that the validity of administrative act or decision and the legality of steps taken pursuant to it are presumed valid until the action or decision is set aside in appropriate proceedings. In this case, there are two warrants issued by the Magistrates’ Court and the appropriate proceeding, with reference to the pleaded case in the Amended Statement of Claim, is a judicial review. In the absence of there being any determination as to the validity of the warrants, the position must be that applications for, and entries made, pursuant to them were valid.
40 Counsel for the defendant also made reference to the earlier submissions made by Senior Counsel for the plaintiff that the subject proceeding is similar to the proceeding in Holdsworth & Ellison v RSPCA (Vic) Inc[8] and on appeal RSPCA (Vic) Inc v Holdsworth & Ellison.[9] It was submitted by counsel for the plaintiff that no challenge was mounted to the jurisdiction of the County Court in the case at first instance and it was implicit in the reasoning of the trial judge, and of the Court of Appeal, that none of the four judges who dealt with the matter considered that there was any question that the County Court did have jurisdiction. Counsel for the defendant highlighted that those cases have no application and are distinguishable from the present case. Holdsworth did not concern entry to premises pursuant to warrant/s and the Court of Appeal decision cited was limited to questions concerning the assessment of damages.
[8]Op cit
[9]Op cit
Submissions on behalf of the Plaintiff
41 It was submitted by Senior Counsel on behalf of the plaintiff that:
(a)The plaintiff was not seeking a remedy by way of prerogative relief or akin to prerogative relief, because the plaintiff was not challenging a decision to do something but, rather, was challenging the manner of its implementation.
It was submitted that the plaintiff was not impugning any decision but, rather, alleging that certain acts of the RSCPA were wrongful because they did not have the authority to do certain things. Unless those circumstances are satisfied, there is no authority to do those things and, therefore, a common law remedy is available against the RSCPA for wrongful interference with the property of the plaintiff.
As I understood the submission, Senior Counsel for the plaintiff submitted that the Amended Statement of Claim essentially pleads two common law causes of action:
(i)The RSCPA breached what is said to be duties owed by it to the plaintiff to act fairly, to accord her procedural fairness, then provide her an opportunity to be properly heard, as set out in paragraph 3 of the Amended Statement of Claim; and
(ii)A claim in detinue, given there was no authority for the defendant to enter the property of the plaintiff and seize the dogs. In this respect, it was submitted that the lack of power that came about by, amongst other things, the defendant, required a delegation from the Head of Department before a warrant could be obtained. No such delegation existed, so it is alleged.
(b)Reference was made to the text, Review of Administrative Action, Sydney (Aronson and Franklin, The Law Book Company Limited, 1987), and, in particular, Chapter 16, dealing with “declarations”. Senior Counsel referred to the opening words of that chapter, wherein it is stated that a declaratory order or judgment is, as its name implies, simply a declaration or statement by a court as to the legal rights or duties of a person and such order or judgment has almost no mandatory or restraining effect at all.[10]
[10]Review of Administrative Action (Aronson and Franklin, The Law Book Company Limited, 1987) at page 448
42 In particular, reference was made to page 578 of that text headed “Three tests”. It states:
“Therefore, the law has not yet arrived at the stage where one can say that all public law matters reviewable by the declaration are equally reviewable by certiorari and prohibition, irrespective of the applicability of natural justice. On the assumption that certiorari and prohibition are not yet ‘all-purpose’ administrative law remedies, one can define their scope using any one of three main approaches. First, one can look to the interest affected by the impugned decision, and ask whether that interest is within the remedies’ cognisance and whether the impact of the decision on the interest is the sort of impact regulated by the remedies. Secondly, one can define the scope of the remedies by reference to the scope of the rules of natural justice, or the ability to characterise the power as ‘judicial’. Or thirdly, one could look to the character of the respondent.
First Test
The first question here is: what is a ‘determination’? Secondly, what sort of interests are protected by certiorari? … And, thirdly, what sort of impingements upon such ‘rights’ are within the scope of the remedies.
…
… First, there must be a ‘determination’. This simply means that the impugned decision should have been one as to the contents or giving of which the maker had a choice (sometimes called a non-ministerial decision).”[11]
[11](Ibid) at pages 578-579
43 It was submitted by Senior Counsel, as I have already indicated, that the plaintiff, by way of its Statement of Claim, is not impugning any decision but, rather, challenging the manner of its implementation. In such circumstances, it is submitted that no issue arises that the Amended Statement of Claim is an application for a prerogative writ or an order in the nature of a prerogative writ.
44 Counsel for the defendant stressed, again, that the correct categorisation of the provisions of the POCTA Act is that the decision to issue a warrant is administrative in nature and is not determinative of any rights and, accordingly, does not require any notice, or otherwise, to the person against whom the warrant is to be executed – understandably for good, sound public policy reasons. In such circumstances, it is unclear how the plaintiff alleges that duties were owed by the defendant to the plaintiff as set out in paragraph 3 of the Amended Statement of Claim.
Conclusion
45 After a consideration of the competing submissions, made more difficult by the lack of clarity in the various Statement of Claims relied on by the plaintiff, I have ultimately come to the view, consistent with the submissions of the defendant, that a proper construction of the Amended Statement of Claim is that paragraphs 9 to 13 of that document do raise, for determination, the validity of the actions of the defendant and the lawfulness of the warrants.
46 In such circumstances, I do consider that such paragraphs of the Amended Statement of Claim do amount to the seeking of an order in the nature of a prerogative writ. In the circumstances, I refer to s39(2) of the County Court Act 1958 and enquire of the plaintiff whether it would prefer to have the proceeding struck out pursuant to s39(2)(c) of that Act, or alternatively seek an order that the proceeding be stayed pending the making of an application under Part 3 of the Courts (Case Transfer) Act 1991, pursuant to s39(2)(b). I offer the plaintiff this choice in circumstances where there has been given one indulgence to the plaintiff to amend its Statement of Claim during the course of this proceeding.
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