Healey v RSPCA
[2018] VSC 190
•19 April 2018 (ex tempore) (Revised 24 April 2018)
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2017 02387
| HEATHER HEALEY | Plaintiff |
| v | |
| ROYAL SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS VICTORIA | Defendant |
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JUDGE: | QUIGLEY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16, 17, 18 and 19 April 2018 |
DATE OF JUDGMENT: | 19 April 2018 (ex tempore) (Revised 24 April 2018) |
CASE MAY BE CITED AS: | Healey v RSPCA |
MEDIUM NEUTRAL CITATION: | [2018] VSC 190 |
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JUDICIAL REVIEW – Validity of warrants – Delegation – Form of authorisation – ‘authorise’ – Procedural fairness – Reasonable grounds – Warrants too wide – Prevention of Cruelty to Animals Act 1986 ss 1, 24C, 24G, 24K, 38.
JUDICIAL REVIEW – Execution of warrants – Reasonableness – Prevention of Cruelty to Animals Act 1986 ss 24G, 24K.
STATUTES – Interpretation – Delegation – ‘in and for Victoria’ – Interpretation of Legislation Act s 48.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | P G Nash QC and P W Lithgow | Maitland Lawyers |
| For the Defendant | N De Young | MinterEllison |
HER HONOUR:
This proceeding is brought by the plaintiff, Mrs Heather Healey, challenging the validity of two warrants, one issued pursuant to s 24G (search warrants for at risk animals on premises) and the other under s 24K (search warrants for premises) of the Prevention of Cruelty to Animals Act 1986 (‘POCTA’),[1] and the subsequent execution of those warrants by the defendant, the Royal Society for the Prevention of Cruelty to Animals Victoria (‘RSPCA’), on 7 June 2016 at the plaintiff’s property at 2-4 Correll Street, Longwood (‘Property’).
[1]Exhibit D6, exhibit SP-9.
This proceeding was issued on 6 September 2016.
Since that time, the defendant has laid charges against the plaintiff in respect of the animals for contravention of ss 9 and 10 of the POCTA. No trial date has currently been set in relation to the criminal proceedings.
In this proceeding, by the plaintiff’s Further Amended Statement of Claim dated 25 July 2017, the plaintiff challenges the lawfulness of the decision of the RSPCA inspector to apply for the warrants on administrative grounds. There was no pleaded direct challenge to the Magistrate's decision to issue the warrants, rather the conclusion I am asked to form is that the consequence of the challenge to the lawfulness of the procedure followed ought to lead to a conclusion that the warrants are invalid.
The primary reasons for invalidity, as pleaded or argued before me, were that:
(a) the delegation from the Department Head to the RSPCA’s Chief Operating Officer was invalid;[2]
(b) the RSPCA inspector did not have the ‘written approval’ from the Department Head, or his delegate in this case, in order to make the applications as required by sub-ss 24G(1) and 24K(1) of the POCTA; and
(c) the defendant failed to accord the plaintiff procedural fairness by failing to give her an opportunity to be heard before the making of the application for the warrants under sub-ss 24G(1) and 24K(1) of the POCTA.
[2]Exhibit D2.
In addition, it was also argued that:
(a) the RSPCA inspector did not hold the necessary belief as required by sub-ss 24G(1) and 24K(1) of the POCTA;
(b) the actual form of the authorisation to seek the warrant did not properly ‘authorise’ the inspector to apply for the warrants; and
(c) the warrants that were issued were too wide.
The plaintiff also challenged the lawfulness of the seizure of the dogs and execution of the warrants by the defendant.
I have heard this proceeding over the past three days, and I have heard evidence from the plaintiff herself, her husband Mr Ronald Healey, and veterinarian Dr James Harrington, in support of the plaintiff’s case. The RSPCA inspector, Mr Simon Primrose gave evidence for the defendant, and submissions from both parties were presented.
Relevant provisions of the POCTA
Section 1 of the POCTA states:
1 Purpose
The purpose of this Act is to—
(a) prevent cruelty to animals; and
(b) to encourage the considerate treatment of animals; and
(c) to improve the level of community awareness about the prevention of cruelty to animals.
Section 24G of the POCTA states:
24G Search warrants for at risk animals on premises
(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
(c) an animal, in respect of which a contravention of section 9, 10(1), 11A, 13(1) or regulations under this Act is occurring or has occurred; or
(d) an animal, in respect of which the person in charge is 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.
(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
(c) an animal, in respect of which a contravention of section 9, 10(1), 11A, 13(1) or regulations under this Act is occurring or has occurred; or
(d) an animal, in respect of which the person in charge is 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—
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
(g) to free an animal, or an animal of a particular kind, named or referred to in the warrant, from an entanglement, tether or bog in or on the premises; and
(h) to take and keep samples of or from an animal, or an animal of a particular kind, named or referred to in the warrant; and
(i) to take photographs (including video recordings) or make sketches of an animal, or an animal of a particular kind, named or referred to in the warrant, or other thing on the premises; and
(j) to open any container at the premises for the purpose of inspecting, or taking a sample of, its contents, but must reseal the container after the inspection is made or the sample is taken.
Section 24K of the POCTA states:
24K Search warrants for premises
(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.
Section 38 of the POCTA states:
38 Delegation
(1)The Minister may by instrument of delegation delegate to any person any power, duty or function of the Minister under this Act or regulations under this Act other than this power of delegation.
(2) The Department Head may by instrument of delegation delegate to any person any power, duty or function of the Department Head under this Act or regulations under this Act other than this power of delegation.
Also referred to was Part 2A, Division 2—Emergency powers to deal with animals, and in particular s 24C of the POCTA, which provides that if a POCTA inspector reasonably believes that treatment by a veterinary practitioner is necessary for the welfare of an animal, the inspector may arrange for a veterinary practitioner to treat an animal. Subsection 24C(2) provides that before arranging treatment by a veterinary practitioner under sub-s 24C(1), if the owner can be contacted after reasonable enquiry, the inspector must give the owner an opportunity to arrange for a veterinary practitioner of his or her own choice.
Relief sought
The relief sought by the plaintiff were a series of declarations as to the validity of the warrants, and for the return of the dogs and other things seized. In particular, the plaintiff sought:[3]
[3]Plaintiff’s Further Amended Statement of Claim, 11.
A. A declaration that the prerequisites to the application for the warrants were not satisfied;
AA. A declaration that the search and seizure carried out by the defendant were beyond any authority purportedly given by the warrants;
AB. Alternatively, to AA, a declaration that:
(a) the warrant and purportedly issued under section 24G of the POCTA exceeded the ambit authorised by section 24G of the POCTA and was consequently invalid;
(b) the warrant purportedly issued under section 24K of the POCTA exceeded the ambit authorised by section 24K of the POCTA and was consequently invalid;
B. A declaration that the dog seizure was unlawful;
C. An order for the return of the dogs seized on 7 June 2016;
CC. An order for the return of the things 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; and
G. Such further or other order as this Honourable Court deems fit.
Role of the RSPCA
The defendant has a role in the protection of animals under the provisions of the POCTA, in particular Part 2—Protection of animals, Part 2A—Enforcement and 3A—Infringement notices.
The defendant has entered into a Memorandum of Understanding with the relevant State Departments (‘MOU’)[4] which defines the conditions of appointment of the RSPCA inspectors for enforcement provisions of Part 2 of the POCTA and other matters.
[4]Exhibits D7, D8.
Validity of the warrants
In terms of the validity of the warrants, I will deal with each of those matters that I have outlined previously.
The validity of the delegation
Firstly, dealing with the proposition that the inspector did not have written approval of the Department Head to make the application for the warrant, in particular, the alleged invalid delegation from the Department Head to the Chief Operating Officer of the RSPCA.
The plaintiff argues that the delegation purported to be given to the Chief Operating Officer was invalid because a delegation expressed ‘to any person’ must be effectively to a public servant.
The plaintiff relies on s 48 of the Interpretation of Legislation Act (‘ILA’) which provides that, ‘unless the contrary intention appears, a reference to an officer or office shall be construed as a reference to such officer or office in and for Victoria’. The plaintiff says this means a public servant.
The delegation to the Chief Operating Officer of the RSPCA is said by the plaintiff to be a delegation to ‘an office or officer’ and not to a person. They also say that this delegation is to a private company and not a public servant. If the delegation is to an office or officer, it is said that the Chief Operating Officer of the RSPCA is not one holding such office ‘in and for Victoria’.
I disagree with this interpretation that the delegation is invalid for the following reasons:
(a) in each of the cases that was referred to me, the power of delegation needs to be considered in the context of the words used and the legislation relevant to each of the cases cited. None of the cases, Owendale Pty Ltd v Anthony,[5] Noble v Commonwealth,[6] AB Oxford Cold Storage Co Pty Ltd v Arnott,[7] and Byrne v Marles[8] were exactly on all fours with the legislative context and the words of the delegation used here; and
(b) the delegation in question in sub-s 38(2) of the POCTA is ‘to any person’. It is not confined to an office, officer, employee or any other such term. Consequently the delegation, in my view, is a wider one than can be restricted to just an office or officer.
[5](1967) 117 CLR 539.
[6](1943) 17 ALJ 184.
[7](2005) 11 VR 298.
[8](2008) 19 VR 612.
I disagree that the instrument of delegation by the Department Head to the Chief Operating Officer was invalid because it was to a person other than a named person. This is contrary to well-established authority, the authorities I have referred to above.[9]
[9]See Owendale Pty Ltd v Anthony (1967) 117 CLR 539; Noble v Commonwealth (1943) 17 ALJ 184; AB Oxford Cold Storage Co Pty Ltd v Arnott (2005) 11 VR 298; Byrne v Marles (2008) 19 VR 612.
I agree with the defendant that in this regard s 48 of the ILA is not engaged by sub-s 38(2) of the POCTA. There is no reference to office or officer in sub-s 38(2) of the POCTA. I agree to find otherwise would require the rewriting of that section or to imply that the section must be restricted in such a manner, and I do not accept that a restriction can be so implied.
I have referred to the defendant’s MOU with the relevant State Departments. If I am wrong in the view expressed above, and s 48 of the ILA is engaged, the reference to ‘of and for Victoria’ in my view is not limited to public servants. On the natural meaning of that phrase ‘of and for Victoria’, it could extend to a person acting on behalf of, for the benefit of, or as an agent of the State.
The MOU makes it clear in respect of Parts 2 and 3 of the POCTA that the defendant is acting for and on behalf of the State of Victoria as an agent of the State of Victoria.
That is clear from cls 1, 4, and 7 of the MOU.
Clause 4 of the MOU provides that the defendant enforces the POCTA as agent for the State and that the defendant is accountable to the Minister for that enforcement.
Clause 7 of the MOU provides additional accountability by way of regular reporting by the defendant, including about the performance of an inspector or concerning the exercise of the inspector’s powers.
By contrast ‘public service’ is defined in a more limited way. In Part 3 of the Public Administration Act 2004, the ‘public service’ of Victoria is defined as persons employed by the Department Heads, Administrative Heads and officeholders of specific public bodies.
I am bound to follow the authorities stated above and for the reasons I have set out, I conclude that the delegation to the Chief Operating Officer of the RSPCA has been validly exercised.
Deficiencies in the form of authorisation
Secondly, turning then to the form of the authorisation being deficient because it was framed as using the words ‘to allow’ rather than ‘to authorise’.
The point here was made that the words used in the actual authorisation by the Chief Operating Officer to provide permission to apply to the Magistrate for the warrants was deficient because the words used were ‘hereby allow’ rather than the words ‘authorise’.
I consider this submission is without merit.
When read as a whole, the text set out in the authorisation (which is contained in Exhibit SP-8 to the affidavit of Simon Primrose sworn 8 November 2017),[10] it is clear that the Chief Operating Officer was authorising the application for the warrants.
[10]Exhibit D6, exhibit SP-8 (part).
Reference to ss 24G and 24K of the POCTA are explicit and there is explicit reference to warrants under those sections. It refers specifically to sub-s 38(2) of the POCTA, and refers specifically to the powers and functions and duties given to the Chief Operating Officer by that delegation.
I do not see, in the context of the documents as a whole, that there can be any other conclusion than what the Chief Operating Officer was doing was providing the relevant authorisation.
Whilst there are nuances in the difference between the words ‘allow’ and ‘authorise’, given the formality of the document, I find that the use of the permissive word ‘allow’ is intended to mean and conveys the requisite authority to take the step necessary for the RSPCA inspector to make the applications for the warrants under both sub-ss 24G(1) and 24K(1) of the POCTA.
Failure to accord procedural fairness
The third matter was that was a failure to accord procedural fairness to the plaintiff before the decision to apply for the warrant. The question raised by the defendant is whether this point in the process is susceptible to administrative law review.
On the facts and circumstances of this matter before me I see no merit in this point.
I consider there is no right or interest which would attract procedural fairness in the decision to commence the investigation by way of seeking a warrant. This is not a situation of a type which is referred to in Kioa v West.[11]
[11](1985) 159 CLR 550.
The protection of a person's right to a fair hearing is well catered for by the process which follows from the decision of a Magistrate to issue the warrant, and if and when a charge is laid. A court has the powers to ensure an alleged offender is dealt with fairly and for this reason a separate safeguard by way of judicial review of the prosecutorial decision is not necessary.[12]
[12]See Barton v R (1980) 147 CLR 75.
It is contrary to the administration of justice and common sense to seek to inform the party of the investigation of them in advance.
If the plaintiff's argument were to be accepted, in my view it would undermine the effectiveness and integrity of the investigation process.[13]
[13]See Maxwell v R (1996) 184 CLR 501.
The decision, such as is contemplated by making a decision to seek the issue of a warrant in these circumstances is not a matter which is justiciable by administrative law review. It is well-established that prosecutorial decisions are insusceptible of review and the decisions falling broadly within that character do not attract the rules of procedural fairness. I am not convinced that this situation is one which falls within the very limited exceptions.[14]
[14]See Barton v R (1980) 147 CLR 75; See Jago v District Court (NSW) (1989) 168 CLR 23; See DPP v Patrick Stevedores Holdings Pty Ltd (2012) 41 VR 81, [26].
In my view, the suggestion that s 24C of the POCTA is relevant and supportive of an argument that procedural fairness ought be accorded is misconceived.
It is clear on examination of the range of enforcement provisions in Part 2A of the POCTA that there are a range of enforcement actions that can be pursued. Such a situation is not uncommon and there are many examples, such as those that are found in corporations law, workplace safety legislation, and planning and environment law[15] which allow for targeted enforcement to be open to the relevant authority.
[15]See Corporations Act 2001 (Cth) and Australian Securities and Investments Commission Act 2001 (Cth); Occupational Health and Safety Act 2004; Planning and Environment Act 1987.
Section 24C of the POCTA is found within Part 2A, Division 2—Emergency powers to deal with animals, and relates to the obtaining of veterinary treatment. The search for and seizure of animals, warrants and authorisations are in Part 2A, Division 3. Section 24K of the POCTA is in Part 2A, Division 4—Search for and seizure of things.
A decision or choice by an RSPCA inspector to make an application for warrants, rather than exercising the power under s 24C of the POCTA, is a prosecutorial decision which in my view is not reviewable.[16]
[16]See Jago v District Court (NSW) (1989) 168 CLR 23.
I find that this is not a situation where this step in the process is one which demands procedural fairness.
The inspector did not have the necessary belief
Fourthly, that the inspector did not have the necessary belief required by ss 24G and 24K of the POCTA or at all on reasonable grounds.
The affidavit of Mr Primrose and the oral evidence given by him established the requisite belief, that being that he had reasonable grounds to believe that one or more of the matters set out in ss 24G and 24K of the POCTA were made out. Mr Primrose did not have to be satisfied as a matter of fact that those matters were proven correct, that is for a trial, if any. All Mr Primrose had to be was ‘of the belief’ on ‘reasonable grounds’ that any of the matters set out in paragraphs (a) to (d) of sub-s 24G(1) were substantiated and in relation to sub-s 24K(1) that there was in or on the Property a thing or things of a particular kind connected with a contravention of the POCTA or regulations under the POCTA.
The information contained in the Sheltermate records[17] were sufficient to form that belief together with Mr Primrose’s oral evidence, whereby he reiterated that belief.
[17]Exhibit D6, [9].
I do not agree that if one of the complainants, for example, was alleged to be forwarded on by an animal rights organisation whose aim is the welfare of animals, that the source, of possibly one of a number of complaints, invalidates the forming of a belief as to reasonable grounds.
Mr Primrose swore an affidavit setting out the matters in which he formed the belief and he swore that he had reason to believe that there was an animal which was abandoned, distressed, disabled, an animal the welfare of which was at immediate risk, and an animal in respect of which there is a contravention of s 9 or s 10(1) of the POCTA.[18]
[18]Exhibit D6, exhibit SP-8.
Having put the information before the Magistrate, the Magistrate is required to be satisfied on the evidence of the inspector that there are reasonable grounds to believe that one or more of paragraphs (a) to (d) of sub-s 24G(2) were made out and in relation to sub-s 24K(2) that there was in or on the Property a thing or things of a particular kind connected with a contravention of the POCTA or regulations under the POCTA.
The suggestion that all dogs on the premises had to have the proven characteristics in s 24G of the POCTA is misconceived. The nature of the complaints received by the RSPCA set out in Mr Primrose's affidavit as sworn on 20 May 2016 in support of the issue of a search warrant (‘the Magistrates' Court affidavit’) raised the necessary belief on reasonable grounds in respect of all dogs on the premises. The process here is one part of the investigation, not the determination of the offence. That comes later, if at all, if the evidence is sufficient to bring the charge after an investigation.
The complaints show that the plaintiff was selling dogs which had serious health issues and that there was a large number of dogs at the premises which were confined in small areas in their own faeces and urine. Such complaints extended to welfare concerns for all dogs on the premises at that point.
Provided the Magistrate is satisfied on the statutory pre-conditions in sub-s 24G(2), sub-s 24G(3) of the POCTA empowered the Magistrate to issue the warrant to search and seize ‘an animal, or an animal of a particular kind, named or referred to in the warrant’. The plaintiff's argument would seek to rewrite the provisions as to fetter the power of the Magistrate to limit warrants to search and seize the dogs which have characteristics referred to in sub-s 24G(2) of the POCTA. Equally, provided that the Magistrate is satisfied on the statutory pre-conditions in sub-s 24K(2), sub-s 24K(2) empowered the Magistrate to issue the warrant to do any of the things set out in sub-s 24K(2)(b) of the POCTA.
The plaintiff's argument would make execution of warrants simply impossible. A warrant in the terms proposed by the plaintiff would mean that those executing the warrant would need to make an instant judgment on whether the dogs in question have those characteristics referred to, where this is a matter for ultimate determination by a court in any subsequent criminal proceeding. It is not a matter that could possibly be determined at the time of issuing or executing the warrants.
I refer to the language of Mason J in Baker v Campbell:[19]
In approaching the scope of the authority given by the warrant we must keep practical considerations steadily in mind. It is simply impossible for a police officer executing a warrant to make an instant judgement as to the admissibility, probative value or privilege status of the documents he may encounter in his search.
[19](1983) 153 CLR 52, 83.
Mr Primrose was not seriously challenged in his belief, and in any event I find that the evidence and explanation given for how he formed the belief as tested acceptable and reliable.
The warrants as issued were too wide
The next point raised was whether the warrants as issued were too wide.
I disagree with this proposition. It was difficult to discern exactly in what manner the warrants were alleged to be excessive. On my examination of the warrant pursuant to s 24G of the POCTA and s 24G itself, the warrant is consistent with the extent of the legislation.
The reasons for the search are identified as the protection of the welfare of the animal at the premises, examining and assessing animals in or on the premises including residential premises, collection of tissue and faecal samples for analysis, seizing animals and providing care treatment as required.
Paragraph 11 of the Magistrates' Court affidavit of Mr Primrose sets out the reason for that warrant with respect to the animals.[20]
[20]Exhibit D6, exhibit SP-8.
The s 24G warrant as issued authorised Inspector Janelle Ackers, or another inspector authorised under the POCTA, any member of Victoria Police, another general inspector, a registered veterinary practitioner and any other assistance as is necessary with the necessary equipment to enter the premises including residential premises as specified in the warrant, and with respect to the animal or animal of a particular kind referred to in the warrant which was described as, ‘All dogs on property’.[21]
[21]Exhibit D6, exhibit SP-9.
In relation to s 24K warrant, similarly I do not find that the warrant extended beyond what was set out in the POCTA. Paragraph 12 of the Magistrates’ Court affidavit sets out the basis for the issue of a s 24K warrant.[22]
[22]Exhibit D6, exhibit SP-8.
I have examined the Magistrates’ Court affidavit in respect of both ss 24G and 24K and I am satisfied the warrants as issued were not excessive.
I recognise that there is capacity to sever an offending part of the warrant consistent with the decision in Caratti,[23] but I do not believe this is necessary.
[23]Caratti v Commissioner of Australian Federal Police [2017] FCAFC 177, [46].
Execution of the warrants
In terms of the execution of the warrants on 7 June 2016, challenge to the execution of the warrants was raised, but it is unclear exactly the real issue as to what was being alleged.
The defendant agrees and accepts that the execution of warrants is required to be undertaken reasonably in all the circumstances, and this is clearly the position at law.[24]
[24]Caratti v Commissioner of Australian Federal Police [2017] FCAFC 177, [44]; See also Slaveski v State of Victoria [2010] VSC 441.
The evidence before me shows that the RSPCA inspectors acted reasonably in seizing the dogs and execution of the search warrants, in particular, I observe that:
(a) the commencement time of 9 am in the morning, which in my view was not too early to be unreasonable;
(b) the first step was a circuit of the boundary to inspect the premises overall for the purpose of executing the warrant;
(c) Mr Primrose and the police officer acted reasonably introducing themselves to the plaintiff and explaining why they were there;
(d) the premises were divided into areas in an organised and logical sequence;
(e) appropriate precautions were taken in terms of hygiene;
(f) the persons in attendance were persons suitably qualified, being veterinarians, another RSPCA inspector and members of Victoria Police;
(g) the dogs were inspected and notes were taken of their condition by the veterinarians;
(h) at the end of the day, Mr Primrose acting on the advice of the veterinarians issued notices in respect of the premises and some of the animals were removed, being 54 of the approximately 90 dogs that were on the premises that day.
I do not find anything in the evidence before me from the plaintiff, Mr Healey or from Mr Primrose that would or could substantiate an allegation that the execution of the warrants was invalid, improper or unreasonable.
Evidence
Plaintiff’s Evidence
Insofar as I need to make findings as to the truthfulness or veracity of the plaintiff’s evidence, I find that on the factual matters in which I need to make a finding that the description that she was ‘honest but biased’ is the kindest way to characterise her evidence and her demeanour overall.
No doubt the plaintiff is, in her own words, ‘obsessed with dogs’ and she is not intentionally cruel, but she clearly has difficulty accepting the standards that are set out in the Code of Practice.[25]
[25]Exhibit D3.
I find it difficult to accept that the state of the housing of the dogs, both within the residence and the external pens in dispute, could deteriorate to the extent that were described by Mr Primrose and on the other material exhibited in his affidavit in the short time as alleged by the plaintiff.
I also find it unlikely that it was purely fortuitous that on the day of the raid the pens and the housing for the dogs happened to be in the state they were as have been described. Insofar as I accept or reject the evidence, I prefer the evidence of Mr Primrose and reject that of the plaintiff and Mr Healey in this regard.
I do not accept that the smell described by the RSPCA personnel as faeces and urine can be passed off as emanating from an air freshener, as the plaintiff described.
In my view, the preponderance of evidence is such that the state of the pens was consistent with that as described by Mr Primrose, and the dogs’ welfare was at risk due to the housing conditions and the maintenance of the housing including the provision of appropriate bedding, water, general hygiene which was below the standard set out in the Code of Practice and fell short of the standards required. This is supported by the evidence of the RSPCA veterinarians.
Mr Primrose’s Evidence
In terms of Mr Primrose's evidence, I am satisfied that his evidence was fair and accurate and honest in relation to those facts that were contested, and I accept his version of events and his assessment.
Dr Harrington’s Evidence
I do not give any weight to the evidence of Dr Harrington. The period over which he made reference in his written, undated testimonial was irrelevant to the issue of the warrant and the events of 7 June 2016. He had not visited the Property in the course of providing the veterinary services for which invoices were produced, and admitted he had only visited the premises so as to prepare the letter.
Relief
Given my findings above, I do not need to consider the relief sought and the issues which arise as to the exercise of discretion in relation to it.
However, I do observe that an order returning the dogs would appear to put the plaintiff in breach of the Domestic Animals Act 1994, and no doubt this is a matter for the plaintiff to consider in relation to her situation in the future.
In relation to the application under s 24X of the POCTA[26] that has been made, and what order might be made by a Magistrate in the future with respect to the return or otherwise of the dogs, that is a matter for that Magistrate should this matter not be able to be resolved beforehand, and if a trial proceeds.
[26]Exhibit D1.
Consequently, I refused to make any of the orders sought in the prayer for relief.
The plaintiff’s claim is dismissed.
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