Heather Healey v Royal Society for the Prevention of Cruelty to Animals Victoria

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2018 0064

HEATHER HEALEY	Applicant
v
ROYAL SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS VICTORIA	Respondent

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JUDGES:	KYROU, NIALL and HARGRAVE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	31 August 2018
DATE OF JUDGMENT:	26 September 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 245
JUDGMENT APPEALED FROM:	Healey v RSPCA [2018] VSC 190 (Quigley J)

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JUDICIAL REVIEW – Instrument of delegation – Delegation to Chief Operating Officer of respondent – Whether only named individuals or holders of public offices can be delegates – Prevention of Cruelty to Animals Act 1986 s 38(2).

JUDICIAL REVIEW – Instrument delegating authority to Chief Operating Officer of respondent authorised grant of written ‘approval’ to inspector to apply for search warrant – Authorisation instrument ‘allowed’ inspector to make application – Whether inspector properly authorised.

JUDICIAL REVIEW – Application for search warrants under ss 24G and 24K of Prevention of Cruelty to Animals Act 1986 – Whether affidavit in support satisfied preconditions for issue of warrants.

JUDICIAL REVIEW – Search warrants under ss 24G and 24K of Prevention of Cruelty to Animals Act 1986 – Whether warrants too wide – Whether s 24K warrant specified its object by reference to specific offence – Whether magistrate failed to consider terms of warrants – Appeal allowed.

JUDICIAL REVIEW – Inspector obliged to give owner of animal opportunity to arrange veterinary treatment before inspector arranged such treatment – Whether opportunity must be given to owner prior to application for search warrant authorising seizure of animals – Prevention of Cruelty to Animals Act 1986 s 24C.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr G Nash QC with Mr P Lithgow	Maitland Lawyers
For the Respondent	Mr N De Young	Minter Ellison

KYROU JA
NIALL JA
HARGRAVE JA:

Introduction and summary

The applicant operates a domestic animal business breeding pedigree Chihuahuas and Tibetan Spaniels at her property in Longwood. The respondent — commonly referred to as the RSPCA — is a charitable organisation that has a role in the protection of animals under the Prevention of Cruelty to Animals Act 1986 (‘Act’).

On 20 May 2016, Simon Primrose, an employee of the respondent who held the position of general inspector under the Act — known as a ‘POCTA inspector’ — applied to the Magistrates’ Court for two search warrants in respect of the applicant’s property. The application was made pursuant to the authorisation set out at [12] below which was issued by Jon McGregor, the Chief Operating Officer (‘COO’) of the respondent on 20 May 2016 (‘Authorisation’). The Authorisation, in turn, was issued pursuant to the instrument of delegation described at [13] below (‘Delegation’) which was issued by the Department Head of the Department of Environment and Primary Industries (‘Department Head’ and ‘Department’, respectively) on 8 December 2015.

The search warrants were issued on 20 May 2016. The first warrant, issued under s 24G of the Act (‘s 24G warrant’), authorised the seizure of dogs from the applicant’s property.[1] The second warrant, issued under s 24K of the Act (‘s 24K warrant’), authorised the seizure of documents and other evidentiary items (‘evidentiary items’).[2]
[1]Section 24G is set out at [25] below.
[2]Section 24K is set out at [25] below.

The warrants were executed on 7 June 2016. Fifty-four out of a total of approximately 90 dogs that were on the applicant’s property were seized. A number of evidentiary items were also seized.

On 6 September 2016, the applicant commenced a judicial review proceeding by way of writ challenging the validity of the warrants and their execution.

On 18 October 2017, the respondent laid charges against the applicant in the Magistrates’ Court for alleged contraventions of ss 9 and 10 of the Act.[3] No trial date has been set.
[3]Sections 9 and 10 of the Act are discussed at [22] below.

On 19 April 2018, the judge dismissed the judicial review proceeding.[4]
[4]Healey v RSPCA [2018] VSC 190 (‘Reasons’).

The applicant seeks leave to appeal against the judge’s decision on seven proposed grounds. She contends that: the Delegation did not validly delegate any power under ss 24G or 24K to the COO of the respondent; the Authorisation did not validly confer any power under ss 24G or 24K on Mr Primrose; Mr Primrose did not hold the belief required by ss 24G or 24K; the scope of the warrants was too wide; and the judge failed to give adequate consideration to the applicant’s argument that Mr Primrose should have acted under s 24C of the Act before applying for the warrants.[5]
[5]Section 24C of the Act is set out at [28] below.

For the reasons that follow, we have concluded that the application for leave to appeal in respect of grounds 3(b), 4(a) and 4(b) will be granted, that the application otherwise will be refused, and that the appeal will be allowed in respect of ground 4(b).

Facts

Between 22 October 2015 and 11 April 2016, the respondent received complaints from five persons regarding dogs that they had purchased from the applicant, observed at the applicant’s property or had seen in a photograph. The complaints variously described the dogs as infested with fleas, worms and mange, malnourished, and suffering from hair loss, skin irritation and matting. They stated that the dogs were living in unsanitary conditions with excessive faeces and urine in the cages, no ventilation and cages stacked on top of each other.

Mr Primrose’s affidavit in support of his application for the search warrants[6] referred to the five complaints and stated:
[6]It appears that the affidavit also served as the application for the warrants.

I therefore have reason to believe that [there is] in or on the premises:-
(a) An animal which is abandoned, distressed, disabled,
(b) An animal, the welfare of which is at immediate risk,
(c)An animal, in respect of which there is a contravention of section 9, 10(1)[7]
[7]This paragraph of the affidavit is incomplete.

It is, in my view, necessary to obtain the issue of a warrant for the premises … pursuant to 24G of the Act as a matter of priority for the purpose of the protection of the welfare of the animal at the premises, examining/assessing the animals in or on the premises … the collection of tissue and faecal samples for analysis, seizing animals and providing care/treatment as required.
Additionally, it is [in] my view necessary to obtain the issue of a warrant for the premises pursuant to section 24K of the Act for the purposes of searching in or on the premises … for any things including but not limited to documents, including electronic documents and records related to the ownership and/or care of dogs, selling or showing dogs, breeding related documents, including electronic documents and records, veterinary and/or health care records, veterinary and/or health care equipment and/or items, pharmaceuticals, nutraceuticals, animal care equipment/items and any other thing(s) relevant to the scope of my investigation.
For the purposes of the protection of the welfare of the animals at the premises, providing the animals with the required treatment and care, gathering evidence that contravenes the Act, it is in my view necessary to obtain the issue of this warrant as a matter of priority.
I have the written approval of the Department Head to apply for the issue of these search warrants …
Pursuant to Section 24G and 24K of the Act I humbly seek the issue of Warrants authorising a search for the aforementioned animals at the premises, with the assistance of the following persons:
·Any member of Victoria Police.
·Any other General Inspector.
·A registered veterinary practitioner.
·Any RSPCA animal handling staff.
·Any other assistance as is necessary.[8]

[8]Emphasis added.

Exhibited to Mr Primrose’s affidavit was the Authorisation. The Authorisation was in the following terms:

The Royal Society for the Prevention of Cruelty to Animals (Victoria)
In accordance with the [Act]
Section 24G and 24K
I, Jon MCGREGOR, [COO] with [the respondent] as delegated by the Department Head of the [Department], pursuant to the powers, duties and functions given to me by a delegation, under section 38(2) of the [Act], hereby allow Senior Inspector Simon PRIMROSE to apply to a Magistrate for the issue of two warrants under section 24G and 24K of the [Act] for premises located at 2–4 Correll Street, Longwood in the State of Victoria.[9]

[9]Emphasis in original. Italics added for further emphasis.

The Delegation — to which the Authorisation refers — was issued by the Department Head pursuant to s 38(2) of the Act.[10] The Delegation delegated to ‘the person or class of persons appointed to a position or acting in or performing the duties of a position described in [the Delegation] the powers, functions and duties of the Department Head under the Act … specified in [the Delegation]’. In relation to ss 24G and 24K, the listed delegates were all public officials — such as ‘Chief Veterinary Officer’ and ‘Senior Police Officers’ (as defined) — except for the Chief Executive Officer and the COO of the respondent. The ‘powers, functions and duties’ under ss 24G and 24K which were delegated were as follows:

Section 24G — Give written approval to a POCTA inspector to apply to a magistrate for the issue of a search warrant allowing the POCTA inspector to enter and seize an animal from premises.
Section 24K — Give written approval to a POCTA inspector to apply to a magistrate for the issue of a search warrant allowing the POCTA inspector to enter premises on which there are things connected with a contravention of the Act or the Regulations.

[10]Section 38(2) of the Act is set out at [29] below.

The s 24G warrant and the s 24K warrant authorised their execution by the following persons:

Inspector Janelle Ackers, authorised as a General Inspector under the [Act] … or another General Inspector authorised under the [Act] who is acting on behalf of that Inspector, and:
·     Any member of Victoria Police; and
·     Any other General Inspector; and
·     Any veterinary surgeon;[11] and
·     Any other assistance as is necessary.

[11]The s 24K warrant refers to ‘Any veterinary surgeon’ whereas the s 24G warrant refers to ‘A registered veterinary practitioner’.

The s 24G warrant authorised the persons set out at [14] above to do the following:

1 Enter the premises … specified in this warrant.
2With respect to the animal, or animal of a particular kind, named or referred to in this warrant:
(a) Search for the animal; and
(b)Seize the animal and take the animal to any place the Inspector thinks fit; and
(c)To retain possession of any animal seized including any offspring born until further order is made by the court; and
(d)Examine or inspect the animal to determine if the animal requires treatment by a veterinary practitioner; and

…
(g) Take and keep samples from the animal; and
(h)Take photographs (including video recordings) or make sketches of the animal, or other thing on the premises; and
(i)Open any container at the premises for the purposes of inspecting, or taking a sample of its contents.

3Subject to Section 24Q(1)(a) of the [Act], seize any animal not described in the warrant or that is not of the kind described in the warrant.
4Subject to Section 24Q(1)(b) of the [Act], seize any thing (that is not an animal) which is not of the kind described in the warrant.
5Subject to Section 24Q(2) of the [Act], take a sample of or from any thing which is not of the kind described in the warrant.

The s 24G warrant described the animals to which it applied as ‘[a]ll dogs on [the applicant’s] property’. Under the heading ‘Reason for Search/Purpose for which Warrant is Required’, the warrant stated the following:

The protection of the welfare of the animal at the premises, examining/assessing the animals in or on the premises … the collection of tissue and faecal samples for analysis, seizing animals, and providing care/treatment as required.

The s 24K warrant authorised the persons set out at [14] above to do the following:

1 Enter the premises … specified in this warrant; and
2With respect to the thing or things of a particular kind named or described in the warrant:
(a)Search for the thing/s; and
(b)Examine, inspect and take and keep samples of or from the thing/s; and
(c)Secure the thing/s against interference; and
(d)Take photographs (including video recordings) of the thing/s; and
(e)Seize the thing/s.

3Subject to Section 24Q(1)(a) of the [Act], seize any animal not described in this warrant or that is not of the kind described in the warrant.
4Subject to Section 24Q(1)(b) of the [Act], seize any thing (that is not an animal) which is not of the kind described in the warrant.
5Subject to Section 24Q(2) of the [Act], take a sample of or from any thing that is not of the kind described in the warrant.

The s 24K warrant contained the following relevant provisions:

NAME AND/OR DESCRIPTION OF THING/S
Any things including but not limited to documents, including electronic documents and records related to the ownership and/or care of dogs, breeding related documents, including electronic documents and records, veterinary and/or health care records, veterinary and/or health care equipment and/or items, pharmaceuticals, nutraceuticals, animal care equipment/items and any other thing(s) relevant to the scope of my investigation.
…
REASON FOR SEARCH/PURPOSE FOR WHICH THE WARRANT IS REQUIRED
To enter and search in or on the premises … for any thing(s) as described above, to seize and secure against interference, examine, inspect and take and keep samples from, and photograph the thing/s.
NATURE OF ALLEGED CONTRAVENTION PURSUANT TO THE [ACT] or THE PREVENTION OF CRUELTY TO ANIMALS REGULATIONS 1997
9(1)(f), 9(1)(b), 9(1)(i).[12]

[12]Emphasis added.

On 7 June 2016, Mr Primrose and another POCTA inspector, Lisa Calleja, police officers, a Ranger from the Shire of Strathbogie and registered veterinarians attended at the applicant’s property and executed the warrants while the applicant was in attendance. They found approximately 90 dogs and one dead dog. The inspectors seized 54 dogs on the basis that their living conditions put their welfare at risk, and was below the standards required by the Code of Practice for the Operation of Breeding and Rearing Businesses 2014. The inspectors also seized some evidentiary items.

The applicant was served with the warrants at the time they were executed. She was not given any prior notice of the warrants. Nor was she given an opportunity to arrange veterinary treatment for the dogs under s 24C of the Act prior to their seizure.

Relevant legislation and instruments

Section 1 of the Act states that the purpose of the Act is:
(a) [to] 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 9 prohibits certain acts of cruelty to animals. Section 9(1)(b) deals with the confinement of animals in overcrowded conditions, s 9(1)(f) deals with a failure to provide sufficient food, drink or shelter for animals and s 9(1)(i) deals with an unreasonable failure to provide appropriate treatment for sick or injured animals. Section 10(1) deals with acts of cruelty which result in the death or serious disablement of an animal.

Section 18(1) contains a list of persons who are ‘general inspectors’. That list includes ‘any person who is … a full-time or part-time officer of the [respondent] and who is approved as a general inspector by the Minister in writing’. Section 3(1) defines ‘POCTA inspector’ to include a general inspector.

Sections 24G and 24K, pursuant to which the warrants were issued, are in pt 2A of the Act titled ‘Enforcement’. Section 24G is in div 3 which is titled ‘Search for and seizure of animals, warrants and authorisations’. Section 24K is in div 4 which is titled ‘Search for and seizure of things’. Section 24I provides that, for the purposes of div 4, ‘thing’ includes an animal.

Sections 24G and 24K provide as follows:

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 … 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; …

…
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
…
(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.

…
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 …, 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.

Division 5 of pt 2A is titled ‘General provisions as to search warrants’. Section 24O prescribes steps that must be taken by the inspector executing a warrant issued under pt 2A, including giving a person at the premises an opportunity to allow entry before a forced entry is made. Section 24Q expands the power to seize animals or other things beyond those described in a warrant issued under ss 24G and 24K. It provides as follows:

24QSeizure of things not mentioned in the warrant and taking samples
(1)A search warrant issued under [pt 2A] … authorises an inspector executing the warrant, in addition to the seizure of any animal or other thing of the kind described in the warrant, to seize—
(a)any animal that is not described in the warrant or that is not of a kind described in the warrant, if the inspector believes, on reasonable grounds—
(i) that the welfare of the animal is at risk; or
…
(iii)that the animal is of a kind that could have been included in a search warrant issued under [pt 2A] and that will afford evidence of a contravention of this Act or regulations made under this Act; or
(iv)that it is necessary to seize the animal in order to prevent its concealment, loss or destruction or the contravention of this Act or regulations under this Act;

(b)any thing (that is not an animal) which is not of the kind described in the warrant if the inspector believes, on reasonable grounds—
(i)that the thing is of a kind that could have been included in a search warrant issued under [pt 2A] and that will afford evidence about the contravention of this Act or regulations under this Act; and
(ii)that it is necessary to seize that thing in order to prevent its concealment, loss or destruction or its use in the contravention of this Act or regulations under this Act.

(2)A search warrant issued under [pt 2A] authorises an inspector executing the warrant, in addition to seizing a thing of the kind described in the warrant, to take a sample of or from any thing that is not of the kind described in the warrant if the inspector believes, on reasonable grounds, that the thing is of a kind—
(a)that could have been included in a search warrant issued under [pt 2A]; and
(b)that will afford evidence about the contravention of this Act or regulations under this Act.

Sections 24S and 24T set out procedures for the return of a seized animal where the person who seized it reasonably believes that the welfare of the animal would not be at risk if the animal were returned to its owner. Section 24X sets out the circumstances in which the Magistrates’ Court can order that a seized animal be returned to its owner where the owner has been charged with an offence under the Act or the regulations made under the Act (‘Regulations’).

Division 2 of pt 2A is titled ‘Emergency powers to deal with animals’. It confers power on POCTA inspectors, without a search warrant, to enter and seize abandoned, distressed or disabled animals. Section 24C, which is in div 2, provides as follows:

24C Obtaining veterinary treatment
(1)If a POCTA inspector reasonably believes that treatment by a veterinary practitioner is necessary for the welfare of an animal, subject to subsection (2), the inspector may arrange for a veterinary practitioner to treat the animal.
(2)If a POCTA inspector has formed a belief under subsection (1) that an animal requires treatment by a veterinary practitioner and the owner or person in charge of the animal can be contacted, after reasonable enquiry, the inspector must, before arranging veterinary treatment under subsection (1), give the owner or person an opportunity to arrange for a veterinary practitioner of his or her choice to undertake the required treatment.
(3)The inspector may recover the costs of veterinary treatment of an animal arranged under subsection (1) from the owner or the person in charge of the animal treated in a court of competent jurisdiction as a civil debt recoverable summarily.

Section 38(2) of the Act provides for the delegation of the power by the Department Head as follows:

38 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] other than this power of delegation.

Sections 42A and 48 of the Interpretation of Legislation Act 1984 (‘ILA’) provide as follows:

42A Construction of power to delegate
…
(2)If an Act or subordinate instrument confers power to delegate to the holder of an office or position, then, unless the contrary intention appears, a delegation may be made to any person for the time being acting in or performing the duties of that office or position.
…

48 References to officers, localities etc.
In an Act or subordinate instrument, unless the contrary intention appears—
(a)a reference to an officer or office shall be construed as a reference to such an officer or office in and for Victoria; and
(b)a reference to a locality, jurisdiction or other matter or thing shall be construed as a reference to such locality, jurisdiction or other matter or thing in and of Victoria.

On 12 November 2013, the Department and the respondent executed a Memorandum of Understanding (‘MOU’) to provide for ‘enforcement of the [Act] by the RSPCA Inspectorate’. Pursuant to cl 5.1.1 of the MOU, the respondent may nominate in writing to the Minister administering the Act, persons employed by the respondent who it wishes to be appointed as POCTA inspectors under s 18 of the Act.

The MOU contains the following relevant provisions:

1 INTRODUCTION
1.1The [MOU] … is between the [respondent] and the [Department]. It defines the conditions for the appointment of the RSPCA inspectors for the enforcement of the provisions of Part 2 of the [Act] …
…
1.3[The respondent] agrees to enforce the Act as an agent for the Government. Both [the Department] and [the respondent] are committed to reducing risks this poses for Government and addresses these risks through this [MOU].
1.4The Act provides the Minister for Agriculture and Food Security with the power to appoint officers from the [respondent] to exercise powers under the Act as inspectors. Such inspectors are accountable to the Minister for the proper exercising of these powers.

…
4 ROLE AND RESPONSIBILITIES OF THE [RESPONDENT]
4.1The [respondent] enforces the Act as an agent for the Government and is accountable to the Minister for that enforcement.
…
4.3The [respondent] and its inspectors as agents for the Government will comply with relevant standards and statutory procedures that are binding on government officers.

…
7 REPORTING
7.1.1 The [respondent] will furnish the Minister with an Annual report for the previous 12 month period … which will provide information relevant to:
…

7.1.4 Number of search warrants applied for …
…

7.2The Minister may request, at any time, other reasonable information for the proper and accountable administration of the Act, including about the performance of an inspector or concerning the exercise of an inspector’s powers.

Part 2 of the Act, to which the MOU refers, creates offences for acts of cruelty to animals and provides for the appointment of POCTA inspectors. Sections 8–20A are in pt 2.

Supreme Court proceeding

In her judicial review proceeding, the applicant sought to challenge the validity of the warrants on three bases:

(a)the Delegation was invalid;
(b)Mr Primrose did not have written approval to apply for the warrants because the Authorisation did not comply with ss 24G(1) and 24K(1); and
(c)the respondent did not accord her procedural fairness because it failed to give her an opportunity to be heard before Mr Primrose applied for the warrants.

The applicant further claimed that:

(a)Mr Primrose did not hold the belief required by ss 24G(1) and 24K(1) or did not have reasonable grounds for any such belief;

(b) the scope of the warrants was too wide; and
(c)the seizure of the dogs and the evidentiary items was not lawful because, in relation to the dogs, the seizure was not limited to dogs at risk.

The applicant sought various declarations, including as to the invalidity of the application for the warrants, the warrants and the execution of the warrants. The applicant also sought orders for the return of the dogs and the evidentiary items that were seized, and for the payment of damages and costs.

Judge’s decision

The judge made the following findings:

(a)The Delegation was valid. The words ‘to any person’ in s 38(2) are wider than ‘to just an office or officer’ with the result that public servants are not the only persons to whom delegations can be made.[13] The delegation was also not invalid for being to a person who was not identified by name.[14] Section 48 of the ILA is not engaged by s 38(2) because s 38(2) does not refer to an office.[15]
(b)In the alternative, if s 48 of the ILA is engaged, the reference to ‘of and for Victoria’ is not limited to public servants. On its natural meaning, the phrase ‘of and for Victoria’ could extend to a person acting on behalf of, for the benefit of, or as an agent of the State. Accordingly, the phrase could extend to the respondent because cls 1, 4 and 7 of the MOU make clear that the respondent is acting for and on behalf of the State and as an agent of the State in respect of pts 2 and 3 of the Act.[16]
(c)The Authorisation was not invalid because it used the words ‘hereby allow’ rather than ‘hereby authorise’.[17] The text of the Authorisation makes clear that the COO was authorising Mr Primrose to apply for the warrants in that it specifically refers to the COO’s powers, functions and duties as delegated pursuant to s 38(2) of the Act, and warrants pursuant to s 24G and 24K of the Act.[18] The use of the permissive word ‘allow’ is intended ‘to mean and conveys the requisite authority to take the step necessary for [Mr Primrose to] make the applications for the warrants’.[19]
(d)The applicant was not denied procedural fairness because there was no right or interest that would attract procedural fairness in the decision to commence an investigation by seeking a warrant.[20] Similarly, the applicant was not denied procedural fairness by the respondent’s decision to apply for warrants rather than exercise its power under s 24C of the Act.[21] The choice to pursue one avenue rather than another is a prosecutorial decision which is not reviewable.[22]
(e)Mr Primrose was only required to hold a belief, on reasonable grounds, that one of the matters set out in s 24G(1)(a)–(d) was made out or, in terms of s 24K(1), that there were things of a kind connected with a contravention of the Act or the Regulations on the applicant’s property. The information held by Mr Primrose was sufficient to establish that belief on reasonable grounds.[23] It was not necessary that he be satisfied that those matters were proven correct.[24]
(f)The scope of each of the warrants was not excessive. The warrants were consistent with the terms of ss 24G and 24K of the Act.[25]
(g)There was no evidence that the execution of the warrants was invalid, improper or unreasonable.[26]

[13]Reasons [21]–[22].

[14]Reasons [23]. The judge relied on Noble v Commonwealth (1943) 17 ALJ 184 (‘Noble’); Owendale Pty Ltd v Anthony (1967) 117 CLR 539 (‘Owendale’); AB Oxford Cold Storage Co Pty Ltd v Arnott (2005) 11 VR 298 (‘AB Oxford’) and Byrne v Marles (2008) 19 VR 612 (‘Byrne’).

[15]Reasons [24].

[16]Reasons [25]–[30].

[17]As discussed further below, it appears that the judge erroneously assumed that the Delegation uses the verb ‘authorise’ rather than ‘approve’.

[18]Reasons [35]–[37].

[19]Reasons [38].

[20]Reasons [41].

[21]Reasons [49]–[50].

[22]Reasons [49]. The judge relied on Jago v District Court (NSW) (1989) 168 CLR 23 (‘Jago’).

[23]Reasons [53].

[24]Reasons [52].

[25]Reasons [64].

[26]Reasons [74].

The judge rejected a submission by the applicant that the s 24G warrant was invalid because it authorised the search and seizure of all dogs on her property rather than those dogs that fell within paras (a)–(d) of s 24G(1), such as ‘abandoned’, ‘distressed’ or ‘disabled’ dogs. The judge said the following about this submission:

The suggestion that all dogs on the premises had to have the proven characteristics in s 24G of the [Act] is misconceived. The nature of the complaints received by the [respondent] set out in Mr Primrose’s 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 [five] complaints [received by the respondent] show that the [applicant] 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 [Act] 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 [applicant’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 [Act].[27]

[27]Reasons [57]–[59].

The judge observed that an order returning the seized dogs to the applicant ‘would appear to put [her] in breach of the Domestic Animals Act 1994’.[28] Although the judge did not explain the nature of the potential breach, it appears that she meant that, if the dogs were returned, the applicant might have on her property more of some types of dog than is permitted by the Domestic Animals Act.[29]
[28]Reasons [84].
[29]The applicant has applied for, but not received, registration as a domestic animal business. Section 45 of the Domestic Animals Act, read together with the definition of ‘domestic animal business’ in s 3(1), provides that an unregistered domestic animal business cannot breed using three or more fertile female dogs on its premises. Section 45A provides that a registered domestic animal business cannot breed using more than 10 fertile female dogs on its premises. At trial, there was evidence that the applicant already had more than 10 fertile female dogs on her property. On this basis, return of the dogs to the applicant would involve a breach of either s 45 (if her business remained unregistered) or s 45A (if her business became registered).

The judge ordered that the judicial review proceeding be dismissed and that the applicant pay the respondent’s costs of the proceeding.

Grounds of appeal

The applicant seeks leave to appeal against the judge’s decision on the following proposed grounds:

1 The learned trial Judge erred in holding that:
aSection [38(2)] of the [Act] authorised the delegation to the [COO] of the [respondent] of the powers of the [Department Head] under section 24G and section 24K of the [Act];
bThe delegation to the [COO] of the [respondent] of the powers of the [Department Head] under sections 24G & 24K of the [Act] were valid and effective.

2The learned trial Judge erred in law in failing to require strict compliance with the statutory provisions relating to the issue of the warrant under section 24G of the [Act] and in particular:
aerred in holding that the requirement for the approval [of] the [Department Head] to the application for the warrant under s 24G was satisfied by the written permission given by the [COO] of the [respondent] which was given in terms ‘I … Hereby allow’;
berred in holding that there was before the Magistrate issuing the warrant evidence that [Mr Primrose] held the necessary belief as to the condition of the dogs.

3The learned trial Judge erred in law in failing to require strict compliance with the statutory provisions relating to the issue of the warrant under s 24K of the [Act] and in particular:
aerred in holding that the requirement for the approval [of] the [Department Head] to the application for the warrant under [s 24K] was satisfied by the written permission given by the [COO] of the [respondent] which was given in terms ‘I … Hereby allow’;
berred in holding that there was … evidence before the Magistrate issuing the warrant that [Mr Primrose] held the requisite belief in relation to the articles … the subject of the warrant.

4 The learned trial Judge erred in failing to find that:
athe warrant purportedly issued pursuant to s 24G of the [Act] went beyond the ambit of that section;
bthe warrant purportedly issued under s 24K of the [Act] by its very terms indicated that the Magistrate has not turned his mind to the terms of the warrant.

5The Learned trial judge erred in treating the [MOU] between the Minister and the [respondent] as giving the [respondent] a status such as to bring it and its actions within the ambit of s 148 of the [ILA].
6The Learned trial judge failed to give any, or any proper, consideration to the argument, as raised by the [applicant] in closing address, that the prerequisite to the warrant, namely the ‘approval’ of the [Department Head] was not satisfied by the permission given by the [COO of the respondent], that ‘I … hereby allow’.
7The Learned trial judge erred in failing to find, or even properly consider, that s 24C of the [Act] required the inspector, before seeking, and/or executing, a search warrant to notify [the applicant] that her dogs may need veterinary treatment and providing her with an opportunity to arrange for that treatment to be provided.

In her application for leave to appeal, the applicant seeks orders that leave to appeal be granted, that the appeal be allowed, that the order made by the judge be set aside and that, in lieu of that order, it be ordered that the respondent return the dogs and the evidentiary items that were seized, and that the respondent pay her damages and costs.

Grounds 1 and 5: Validity of the Delegation

The applicant submitted that s 38(2) authorises a delegation of the Department Head’s powers only to a named person or to the holder of a public office, being a statutory office or an office in the public service. She argued that the delegations in issue in Noble v Commonwealth,[30] Owendale Pty Ltd v Anthony,[31] AB Oxford Cold Storage Co Pty Ltd v Arnott[32] and Byrne v Marles,[33] were found to be valid because they were to a designated public office or to an employee of a public authority. She contended that the cases do not support the proposition that a power to delegate to ‘any person’ authorises a delegation to the holder of an office in a private organisation such as the respondent.
[30](1943) 17 ALJ 184.
[31](1967) 117 CLR 539.
[32](2005) 11 VR 298.
[33](2008) 19 VR 612.

The applicant relied on ss 42A(2) and 48 of the ILA in support of her contentions. She submitted that it is implicit in s 42A(2) of the ILA that a valid delegation may only be made to a person who, for the time being, is acting in or performing the duties of an office or position. She also argued that, pursuant to s 48 of the ILA, the ‘office’ referred to in s 38(2) must be an office ‘in and for Victoria’, that is, an office within the Victorian public service.

The applicant submitted that, because the Delegation to the office of COO of the respondent was not to a named person or to an office ‘in and for Victoria’, it was invalid. Accordingly, so she argued, cases in which delegations to holders of officers or positions, rather than to named persons, have been held to be valid can be distinguished from the purported delegation to the COO. She contended that there is no reason why s 38(2) of the Act, read in conjunction with s 48 of the ILA, should allow an unnamed employee of a private organisation to be the recipient of delegated statutory power.

The applicant submitted that there was an important policy consideration, namely public accountability, which favoured her preferred construction of s 38(2). According to the applicant, where the Department Head delegates a power to a named natural person, that person is known and the Department Head is publicly accountable for the choice of that person. Likewise, so it was said, where the Department Head delegates the power to the holder of a public office, there are public accountability mechanisms that apply to that person which provide safeguards to the exercise of the delegated power. On the other hand, the applicant contended, there is an absence of accountability where a delegation is made to an office in a private organisation because that organisation can change the holder of that office at will.

The applicant conceded that, on her preferred construction, the Department Head could delegate a power to any natural person chosen at random provided the person is named in the instrument of delegation.

The applicant submitted that the respondent’s status as a private organisation was not affected by the MOU. She contended that the MOU was a private agreement under which the respondent undertook to act on behalf of the Minister and did not create or confer on the respondent any status as an arm of the State of Victoria, nor did it make employees of the respondent holders of offices ‘in and for Victoria’.[34]
[34]The applicant referred to Royal Queensland Aero Club v Civil Aviation Safety Authority (2000) 99 FCR 301, 315 [34]–[35].

The respondent submitted that the judge had correctly rejected the applicant’s submission that the Delegation was invalid for the reasons that she gave. It contended that her decision is supported by Owendale, Noble, AB Oxford and Byrne, which were said to establish that a valid delegation may be made to an unnamed holder of a specified office.

In our opinion, grounds 1 and 5 lack merit.

The natural meaning of the words ‘to any person’ in the phrase ‘The Department Head may … delegate to any person’ in s 38(2) is any person to whom the Department Head choses to delegate the relevant powers. There is nothing in the section which confines the words to a named natural person or the holder of a public office. Further, the cases referred to at [43] above on which the applicant relied do not support her proposition that a power to delegate ‘to any person’ is so confined.

In Noble, s 17 of the National Security Act 1939 (Cth) empowered any Minister of State to ‘delegate all or any of his powers and functions under the regulations (except this power of delegation) so that the delegated powers or functions may be exercised by the delegate with respect to the matters or class of matters, or the State or part of Australia, specified in the instrument of delegation’. A Minister delegated certain powers to ‘every officer who shall at any time during the continuance of this delegation be holding the office or performing the duties of the office of Commander of a Lines of Communication Area’. Starke J held that the delegation was valid because it sufficiently described or specified the delegate by reference to his office.[35]
[35]Noble (1943) 17 ALJ 184, 185.

In Owendale, s 6(1) of the City Area Leases Ordinance 1936 (ACT) empowered the Minister to ‘delegate to any person … all or any of his powers and functions under this Ordinance’. By instrument of delegation, the Minister delegated all his powers and functions under the Ordinance, except the power to make regulations, ‘to the person for the time being holding or performing the duties of an office specified in the First Schedule to this Instrument’. The first schedule contained a list of public service offices at particular salary levels. At first instance, Windeyer J rejected an argument that, in order to be valid, a delegation must be to a named person rather than to the holder of an office or a person performing the duties of an office. He held that, since Noble, ‘delegations to the holders of specified offices have become commonplace’ and that ‘provided … there be an identifiable person the holder of the office … they are a valid exercise of a statutory power to delegate “to any person”.’[36] He added that the Minister remains responsible for the action of his delegate.[37] Although Windeyer J’s decision was reversed on appeal, Taylor and Owen JJ (with whom Kitto J agreed) affirmed Windeyer J’s finding about the validity of the delegation.[38]
[36]Owendale (1967) 117 CLR 539, 563.
[37]Owendale (1967) 117 CLR 539, 563.
[38]Owendale (1967) 117 CLR 539, 581, 598, 611. See also Barton v Croner Trading Pty Ltd (1984) 3 FCR 95, 108–10.

In AB Oxford, s 21(1) of the Accident Compensation Act 1985 (‘ACA’) empowered the Victorian WorkCover Authority (‘VWA’) to ‘delegate to any person any function or power of the [VWA] under this Act or any other Act including … this power of delegation’. Section 21(3) provided that a person to whom a function or power has been delegated under s 21(1) ‘may … authorise another person to perform the function or exercise the power so delegated’. The VWA delegated to ‘the person occupying the position or performing the duties of Chief Executive of the [VWA]’ all of VWA’s powers under the Occupational Health and Safety Act 1985 (‘OHSA’). Pursuant to s 21(3) of the ACA, the Chief Executive of the VWA authorised Barry Durham, a VWA executive, to authorise inspectors to bring proceedings for offences against the OHSA. Mr Durham, in turn, authorised an inspector named James Arnott to bring proceedings against AB Oxford Cold Storage Co Pty Ltd for offences against the OHSA.

This Court held that the authority to prosecute was not invalid on the basis that the delegation under s 21(1) of the ACA was given to the holder of an office rather than to a named person. Nettle JA (with whom Callaway JA and Byrne AJA agreed), cited Owendale for the proposition that ‘a power of delegation expressed in terms like s 21 of the [ACA] allows for delegation to the holder of an office or to a person performing the duties of an officer’.[39] Nettle JA said that this principle applies to both civil and criminal proceedings.[40]
[39]AB Oxford (2005) 11 VR 298, 311 [34]. See also Schierholter v County Court of Victoria (2006) 15 VR 583, 588 [7].
[40]AB Oxford (2005) 11 VR 298, 311 [35].

In Byrne, s 6.3.12(1) of the Legal Profession Act 2004 empowered the Legal Services Commissioner to delegate ‘to an employee … any function of the Commissioner’. The Legal Services Commissioner delegated certain functions ‘to the person for the time being performing the duties of Director, Investigations, being an employee …’. This Court held that the delegation was valid. Nettle JA (with whom Dodds-Streeton JA and Coghlan AJA agreed) held that authority ‘makes plain that a delegation to the holder of a specified office may be a valid exercise of a statutory power to delegate “to any person”.’[41] He added that a power to delegate to an employee ‘may be in form a delegation to a specified office’.[42]
[41]Byrne (2008) 19 VR 612, 623 [38].
[42]Byrne (2008) 19 VR 612, 624 [40].

The above cases make clear that a power to delegate to ‘any person’ does not authorise only delegations to a named natural person. They clearly recognise that such a power authorises delegations to the holder of a particular office. There is nothing in the cases that expressly confines this type of delegation power to public offices, such as statutory offices or offices in the public service. The applicant conceded as much.

There is nothing in the context in which s 38(2) appears in the Act or the purposes of the Act[43] which requires that the delegation of power it confers should be limited to named natural persons or the holders of public offices. A delegation to the holder of an office in a private organisation falls within the delegation power. Indeed, a delegation of a law enforcement power to a senior officer of the respondent is consistent with the respondent’s role in the enforcement of the animal protection provisions of the Act, which is recognised by s 18 of the Act. It will be recalled that, under that section, the Minister may appoint officers of the respondent as POCTA inspectors.
[43]See [21] above.

Moreover, unlike most private organisations, the respondent is the subject of its own Act, the Royal Society for the Prevention of Cruelty to Animals Act 1968, which indicates that Parliament recognises the importance of the animal protection functions that the respondent performs.

We reject the policy reasons on which the applicant relied for confining s 38(2) to delegations to a named person or the holder of a public office. We do not see how greater accountability is achieved by delegating a power to a named person chosen at random — with no necessary training or experience to exercise the delegated powers — but not to the holder of a senior office in a private organisation which has expertise in the subject matter of the power.

We accept that the holders of public offices are subject to public accountability mechanisms. However, if the Department Head delegates a power to the holder of an office in a private organisation rather than to a holder of a public office, the Department Head would be publicly accountable for how that power is exercised. This is because s 42A(1)(c) of the ILA provides that the exercise of a power by a delegate is to be taken to be exercised by the delegator.[44] In the present case, a measure of accountability is achieved administratively through the MOU.
[44]Section 42A(1)(a) of the ILA also provides that a delegation of a power does not prevent the delegator from exercising the power personally.

We agree with the judge that s 42A of the ILA is not relevant to s 38(2) of the Act because the delegation power in s 38(2) is not a ‘power to delegate to the holder of an office or position’. For the same reason, s 48(a) of the ILA is not engaged.

We agree with the applicant that the MOU, which is not referred to in the Act or expressly authorised by it, cannot assist in the construction of s 38(2). However, the judge’s observations in relation to the MOU were in connection with s 48 of the ILA, which we have found was not engaged by s 38(2). It is not necessary for us to consider whether those observations are correct.

Grounds 2(a), 3(a) and 6: Validity of the Authorisation

The applicant submitted that Mr Primrose did not have the COO’s approval to apply for the warrants because the Authority was not expressed in terms of ‘approval’ of the application for the warrants as required by ss 24G and 24K. She argued that there is an important distinction between ‘approving’ and ‘allowing’: ‘approve’ indicates a positive endorsement of the action taken whereas ‘allow’ is a passive term that is indicative of mere acquiescence.[45]
[45]The applicant relied on Davis v Corporation of Leicester [1894] 2 Ch 208, 234; McDonald’s System of Australia Pty Ltd v McWilliam’s Wines Pty Ltd (1979) 28 ALR 236, 248.

The applicant contended that this contrast was particularly relevant in the light of the COO’s supervisory role in applications for warrants, and the serious nature of the issue of warrants due to their interference with privacy and property rights. She relied on Halliday v Nevill,[46] Tran Nominees Pty Ltd v Scheffler,[47] Coco v The Queen,[48] R v McNamara[49] and New South Wales v Corbett,[50] for the following proposition: Where legislation seeks by way of a search warrant to render lawful an entry and seizure that would otherwise be a trespass and an invasion of privacy, a court will construe the legislation strictly, resolve any ambiguity in favour of the citizen and insist on strict compliance with the legislation and the conditions on which the warrant is authorised.
[46](1984) 155 CLR 1, 20 (‘Halliday’).
[47](1986) 42 SASR 361, 369 (‘Tran Nominees’).
[48](1994) 179 CLR 427, 436 (‘Coco’).
[49][1995] 1 VR 263, 269 (‘McNamara’).
[50](2007) 230 CLR 606, 627–8 [87] (‘Corbett’).

The applicant contended that although the judge found that there was no distinction between the verbs ‘authorise’ and ‘allow’, she had failed to consider the distinction between the verbs ‘allow’ and ‘approve’, which was in issue. She argued that by being couched in terms of ‘allowing’, the Authority did not validly sanction Mr Primrose’s application for the warrants and therefore the warrants were invalid.

The respondent submitted that the judge had not failed to consider the distinction between ‘allow’ and ‘approve’, and was correct to hold that the Authorisation clearly indicates that the COO gave written approval for Mr Primrose to apply for the warrants. It contended that is so because the Authorisation expressly refers to ss 24G and 24K, warrants under those sections, and the delegation of power pursuant to s 38(2). It argued that, in addition, there is no clear distinction between the verbs ‘allow’ and ‘approve’.[51]
[51]The respondent relied on the Oxford Thesaurus of English Online which includes ‘approve of’ as a synonym for ‘allow’: Oxford Thesaurus of English (online at 7 September 2018), ‘allow’ (def 1).

In our opinion, grounds 2(a), 3(a) and 6 must be rejected.

We accept that it would have been preferable for the Authority to reflect the wording of the Delegation by using the verb ‘approve’ rather than ‘allow’. We also accept that, in some contexts, the two verbs may have different meanings. However, in the context of the Delegation and the Authority, the difference in wording is immaterial.

When the Delegation is read as a whole, it is clear that the verb ‘approve’ means to authorise a POCTA inspector to apply for a search warrant. That is precisely what the wording of the Authority did: by ‘allowing’ Mr Primrose to apply for the warrants, the Authority authorised him to make the application. Even if the verb ‘approve’ means ‘a positive endorsement’ of the making of an application for the issue of search warrants under ss 24G and 24K, as contended by the applicant, it cannot be sensibly argued that the COO of the respondent did not, by signing the Authority, positively endorse Mr Primrose’s application for the warrants. This is because the Authority specifically states that it was being signed under the powers delegated under s 38(2) and expressly refers to the making of an application for warrants under ss 24G and 24K in respect of the applicant’s property.

We agree with the applicant that, as the parts of the Delegation with which we are concerned deal with applications for search warrants, they engage the principle that provisions of legislative instruments should be strictly construed to ensure that any interference with a person’s enjoyment of his or her property is no wider than the instrument requires. However, for the reasons we have outlined, the interpretation of the verb ‘approve’ which we have adopted is entirely consistent with that important principle.

It follows that, while the judge compared the meanings of the verbs ‘allow’ and ‘authorise’ and did not, in terms, refer to the verb ‘approve’, she did not err in finding that the Authority was a valid exercise of the power in the Delegation to authorise Mr Primrose to apply for the warrants.

Grounds 2(b) and 3(b): Requisite belief of Mr Primrose to apply for the warrants

The applicant submitted that Mr Primrose’s affidavit was an insufficient basis for the issue of the s 24G warrant as he did not depose that he believed on reasonable grounds that in or on the applicant’s premises there was an animal that fell within one of the categories in s 24G(1)(a)–(d) of the Act. She contended that it was insufficient that Mr Primrose had deposed that he had ‘reason to believe that [there is] in or on the premises’ an animal that fell within s 24G(1)(a)–(d), but not that he, in fact, held that belief, due to the necessity of strict compliance with statutory conditions governing the issue of search warrants.[52]
[52]The applicant relied on Tran Nominees (1986) 42 SASR 361, 369; Halliday (1984) 155 CLR 1, 20; Coco (1994) 179 CLR 427, 436; R v McNamara [1995] 1 VR 263, 269; Corbett (2007) 230 CLR 606, 627–8 [87]; George v Rockett (1990) 170 CLR 104, 110–11.

The applicant submitted that Mr Primrose’s affidavit was similarly insufficient as a basis for the respondent’s application for the s 24K warrant. She contended that Mr Primrose had not deposed that he had any belief as to the existence of anything connected with a contravention of the Act or the Regulations. Accordingly, so she argued, there was no evidence before the magistrate to establish that Mr Primrose had ‘reasonable grounds to believe that there is a thing or things of a particular kind connected with a contravention’ of the Act.

The respondent submitted that, pursuant to ss 24G and 24K of the Act, Mr Primrose was not required to depose, in terms, that he had ‘reasonable grounds’ for the requisite belief. It contended that those sections required him only to form the requisite belief on reasonable grounds before making the application for the warrants. It argued that the judge had found, on the basis of Mr Primrose’s evidence, that he did, in fact, hold those beliefs on reasonable grounds, and that the applicant had not sought to challenge that evidence at trial.

The respondent contended that the trial judge had been correct to find that it was for the magistrate, having regard to Mr Primrose’s affidavit, to be satisfied that there were reasonable grounds for the requisite beliefs, and that the information contained in the affidavit, particularly the complaints made to the respondent, provided ample support to satisfy the requirements in ss 24G(2) and 24K(2). It argued that the rules of evidence did not apply to the application, and the magistrate was not required to determine whether Mr Primrose’s beliefs were justified: to the contrary, the object of the warrants was to assist law enforcement officers to determine where the truth lay.

In our opinion, grounds 2(b) and 3(b) are not made out.

Section 24G(1) required that, when Mr Primrose applied for the s 24G warrant, he believed on reasonable grounds that there was on the applicant’s property an animal that fell within s 24G(1)(a)–(d). Section 24G(2) required that, when the magistrate issued the s 24G warrant, the magistrate was satisfied, by Mr Primrose’s affidavit, that there were reasonable grounds to believe that there was on the applicant’s property an animal that fell within one of those paragraphs. These requirements were satisfied in the present case.

Although it may be desirable for a POCTA inspector’s affidavit in support of an application for a s 24G(1) warrant to expressly state that the deponent has the requisite belief and that it is based on identified grounds, s 24G(1) does not require such an express statement. All that it requires is that the affidavit discloses sufficient material from which it is apparent that the POCTA inspector has the requisite belief and that belief is based on reasonable grounds. Whether the contents of the affidavit disclose reasonable grounds for the belief is to be assessed objectively.[53]
[53]Prior v Mole (2017) 343 ALR 1, 26 [98].

In the present case, Mr Primrose deposed in his affidavit that he had ‘reason to believe’ that there was on the applicant’s property an animal falling within paras (a)–(c) of s 24G(1). Read in context, it is clear that the statement ‘reason to believe’ was intended to convey that Mr Primrose had the belief. Moreover, the references to the five complaints in the affidavit provided ample reasonable grounds for Mr Primrose’s belief. It must follow that Mr Primrose’s affidavit was sufficient to enable the magistrate to be satisfied that there were reasonable grounds to believe that there were on the applicant’s property animals falling within paras (a)–(c) of s 24G(1).

Section 24K(1) required that, when Mr Primrose applied for the s 24K warrant, he believed on reasonable grounds that there was on the applicant’s property a thing or things of a particular kind connected with a contravention of the Act or Regulations. Section 24K(2) required that, when the magistrate issued the s 24K warrant, the magistrate was satisfied, by Mr Primrose’s affidavit, that there were reasonable grounds to believe that there was on the applicant’s property such a thing or things.

In the present case, Mr Primrose deposed in his affidavit that, in his ‘view’, it was necessary that a warrant be issued in respect of the applicant’s property under s 24K for the purposes of searching for various ‘things’ which were ‘relevant to the scope of [his] investigation’. He also deposed that, in his ‘view’, it was necessary to obtain the warrant for the purpose of ‘gathering evidence that contravenes the Act’. Earlier in the affidavit, he deposed that he had reason to believe that there was on the applicant’s property ‘[a]n animal, in respect of which a contravention of s 9, 10(1)’.[54]
[54]As noted at [11] n 8 above, this sentence is obviously incomplete — but its meaning is clear enough.

It is clear from the above description of Mr Primrose’s affidavit that he did not, in terms, set out the statutory precondition for an application for, and the issuing of, a s 24K warrant. That precondition is that the things on particular premises are ‘of a particular kind connected with a contravention of [the] Act or [Regulations]’. Further, Mr Primrose’s affidavit used the word ‘view’ rather than ‘believe’.

Generally speaking, it is desirable that documents that are prepared under, or seek to give effect to, a statutory provision should reflect the wording of that provision. However, a failure to do so is not necessarily fatal to their efficacy. In the present case, when the affidavit is read as a whole, including the draft warrants that were attached to it, it is apparent that Mr Primrose had formed the belief that there were contraventions of ss 9 and 10(1) in respect of animals on the applicant’s property and that there were things on the property, which he described, that were connected with those contraventions.

We have formed this conclusion for the following reasons:

(a)The affidavit states that Mr Primrose has reason to believe that there has been a contravention of ss 9 and 10(1) in respect of an animal on the applicant’s property.
(b)The things on the property that Mr Primrose describes in his affidavit are said by him to be relevant to the scope of his investigation. The clear inference is that his investigation relates to a contravention of ss 9 and 10(1).
(c)The affidavit states that the issue of the s 24K warrant is necessary as a matter of priority for the purpose of ‘gathering evidence that contravenes the Act’. The phrase ‘contravenes the Act’ is clearly intended to mean ‘about a contravention of the Act’.
(d)In combination, the statements referred to in (a)–(c) can only mean that the s 24K warrant is sought in relation to the things described in it because they are connected with a contravention of ss 9 and 10(1).

It follows that, despite its clumsy wording, the affidavit was sufficient for the purposes of s 24K(1).

As the requirements of s 24K(1) were satisfied by virtue of Mr Primrose’s affidavit, that affidavit was sufficient to enable the magistrate to be satisfied that there were reasonable grounds to believe that there were on the applicant’s property things of a particular kind connected with a contravention of the Act or the Regulations.

Before turning to grounds 4(a) and 4(b), we will refer to a feature of both warrants which was not the subject of any submissions either at trial or before us. That feature is that, although Mr Primrose applied for and executed the warrants, they did not name him as the POCTA inspector to execute them. Instead, they named Ms Ackers.

The warrants in draft form were attached to Mr Primrose’s affidavit and thus made it clear that his application was for the issue of warrants to be executed by Ms Ackers or an inspector acting on her behalf. Execution of a warrant by an inspector acting on behalf of an inspector named in the warrant is expressly authorised by ss 24G and 24K. It may well be that, if the applicant had raised this issue at trial, Mr Primrose would have given evidence that he acted on behalf of Ms Ackers in executing the warrants.

We also note that the Delegation refers to the giving of written approval to a POCTA inspector to apply for warrants under ss 24G and 24K ‘allowing the POCTA inspector to enter’ the premises and seize animals or other things. In the present case, the fact that Mr Primrose was the inspector who applied for the warrants, but Ms Ackers was the inspector who was named in those warrants does not mean that the warrants did not ‘allow’ Mr Primrose to enter the applicant’s property. As we have already said, he would have had that authority if he had acted on behalf of Ms Ackers. Further, he would have had that authority, in any event, as the warrants also refer to ‘Any other General Inspector’.

As the matters discussed at [88]–[90] above were not in issue either at trial or before us, we need not say anything further about them.

Grounds 4(a) and 4(b): Scope of the warrants

The applicant submitted that the scope of the s 24G warrant exceeded the ambit of s 24G because it granted powers that were not justified on the basis of Mr Primrose’s evidence. She contended that the warrant authorised, pursuant to s 24G(3), a search for ‘all dogs on [the applicant’s] property’ and other broad powers, despite there being no evidence in Mr Primrose’s affidavit that all the dogs on her property fell within one of the categories in s 24G(1)(a)–(d). Accordingly, she argued, the warrant purported to allow the seizure of all dogs on the property, the seizure of animals not described in the warrant and retention and possession of animals seized, in circumstances where the respondent’s application for the warrant did not justify the issue of such a warrant.

The applicant contended that s 24Q does not assist the respondent. That was said to be because, in the present case, the collateral search that it permits would be limited to dogs at risk as contemplated by s 24G and would not extend to ‘all dogs’.

The applicant submitted that the magistrate had clearly not considered the terms of the s 24K warrant, because the magistrate purported to allow search for and seizure of things ‘relevant to the scope of my investigation’. She contended that because the warrant was signed by the magistrate, ‘my investigation’ must necessarily be an investigation conducted by the magistrate, who was not authorised by the warrant to conduct such an investigation. Accordingly, so she argued, the s 24K warrant was invalid because it was expressed in terms that are meaningless, and the magistrate failed to exercise any discretion in relation to it.[55]
[55]The applicant relied on R v Tillett; Ex parte Newton (1969) 14 FLR 101, 113. See also Corbett (2007) 230 CLR 606, 627–8 [85]–[89].

The respondent submitted that the trial judge was correct in finding that the nature of the complaints received by the respondent raised the necessary belief, on reasonable grounds, in respect of the welfare of all the dogs on the applicant’s property. Accordingly, so it was said, it was appropriate for the s 24G warrant to extend to all dogs. The respondent argued that, if the warrant had been limited to those dogs which Mr Primrose believed fell within s 24G(1)(a)–(d), practical problems would have arisen in identifying those dogs prior to the issue of the warrant and during its execution.

According to the respondent, s 24G authorises the issue of a warrant which specifies all dogs where the evidence before the magistrate justifies this. In the case of such a warrant, so it was said, the inspector executing the warrant would not be obliged to seize all dogs but could confine the seizure to those dogs falling within s 24G(1)(a)–(d).

The respondent contended that the applicant’s construction of s 24G seeks to rewrite the section so as to limit the power of the Magistrates’ Court to issue warrants for the search and seizure of dogs of the type referred to in s 24G(2).

Finally, the respondent submitted that the words ‘relevant to the scope of my investigation’ in the s 24K warrant were not material to the warrant and did not invalidate it.

We first consider ground 4(a). In our opinion, it must be rejected.

The question whether a search warrant issued under pt 2A of the Act is too wide must be informed by the purpose of the Act set out in s 1.[56] That purpose is directed at animal welfare rather than enforcement of the criminal law. Typically, the purpose of search warrants is to enable law enforcement officers to seize evidence to advance criminal investigations and secure the conviction of offenders. Warrants under pt 2A are not confined to this purpose; they are also issued for the purpose of removing animals from harmful environments and affording them treatment and protection. This purpose must be borne in mind when a court considers the validity of a search warrant under pt 2A or the reasonableness of its execution.[57]
[56]See [21] above.
[57]Caratti v Commissioner of the Australian Federal Police (2017) 352 ALR 631, 640 [22], [24], 644 [34] (‘Caratti’).

As we have already discussed, a belief by a POCTA inspector on reasonable grounds that there is on particular premises an animal falling within paras (a)–(d) of s 24G(1) is a precondition to the making of an application for a s 24G warrant and a magistrate being satisfied that there are reasonable grounds for such a belief is a precondition to the issuing of such a warrant under s 24G(2). Section 24G(3) sets out what a s 24G warrant can authorise. In the present case, the judge correctly found that Mr Primrose’s affidavit disclosed concerns about the welfare of all the dogs on the applicant’s property. In those circumstances, it was not inappropriate for the s 24G warrant to refer to all the dogs on that property.

Framing the application for the s 24G warrant by reference to all the dogs on the applicant’s property was consistent with s 24G and in accordance with the practical reality of the law enforcement and animal protection purposes of that warrant.

The s 24G warrant specified ‘an animal of a particular kind’ within the meaning of s 24G(3), namely dogs. The warrant did not apply generally to all animals on the applicant’s property. Furthermore, the use of the phrase ‘an animal’ in the singular in s 24G was not intended to refer to a particular identifiable animal, but also encompassed animals in the plural.[58]
[58]ILA s 37(c).

From a practical perspective, in some circumstances, a POCTA inspector will not be aware of precisely which animals on a property fall within paras (a)–(d) of s 24G(1). In many cases, such as the present, the inspector will become aware of information relating to some animals falling within those paragraphs which provides reasonable grounds for a belief that other animals of a particular kind may also fall within those paragraphs. The purpose of a s 24G warrant is to authorise entry onto the property to search for animals of that kind and to seize them if the inspector forms the view that this is necessary for the purposes set out in the warrant.

In some cases, in order to achieve those purposes, it may be necessary to seize all animals of the kind specified in the warrant while in other cases the inspector executing the warrant may determine, following examination of the animals, that it is necessary to seize only some of them. This is what happened in the present case.

We now turn to ground 4(b).

As appears from [18] above, the description of the things to which the search and seizure powers in the s 24K warrant applied concluded with the words ‘and any other thing(s) relevant to the scope of my investigation’ (‘impugned words’). It would be clear to anyone who read the s 24K warrant in conjunction with Mr Primrose’s affidavit that the impugned words were inadvertently replicated from Mr Primrose’s affidavit. However, there was no evidence before us that Mr Primrose’s affidavit was served on the applicant.

It is necessary to consider what the impugned words would have conveyed to a person in the applicant’s position at the time that the s 24K warrant was served on her. It is likely that the impugned words would have caused at least some initial confusion as to whether the magistrate was conducting an investigation. Even if, on further reflection, it was appreciated that an investigation was being conducted by the POCTA inspectors rather than the magistrate, the warrant did not make clear, on its face, the nature of the investigation.

If the words ‘relevant to the scope of my investigation’ are treated as being included in the s 24K warrant inadvertently and therefore as being capable of being severed,[59] that would not clarify the position. That is because the description of the ‘things’ in the warrant would conclude with the words ‘and any other thing(s)’ which would mean that the description would be open-ended.
[59]The principles concerning severance of an invalid component of a search warrant are conveniently summarised in Caratti (2017) 352 ALR 631, 648–9 [46]–[47].

If one takes the view that all of the impugned words should be severed, the description of the ‘things’ would remain open-ended because the first two words of the description are ‘Any things’ and those words are followed by certain categories of things which are preceded by the word ‘including’, meaning that those categories do not exhaust the ambit of ‘Any things’. In other words, severance of the impugned words would leave the description of the things in the warrant as lacking any subject matter. Such a subject matter would have been supplied if, as required by s 24K, the description of the things was confined to things that are connected with a contravention of the Act or the Regulations.

In our opinion, the lack of a subject matter in the description of the ‘things’ cannot be supplied by what appears in the s 24K warrant under the heading ‘Nature of Alleged Contravention Pursuant to the [Act] or the Prevention of Cruelty to Animals Regulations 1997’, namely ‘9(1)(f), 9(1)(b), 9(1)(i)’. This is because:

(a)the warrant does not, on its face, contain any link between the description of the things and the reference to ‘9(1)(f), 9(1)(b), 9(1)(i)’;
(b)the meaning of ‘9(1)(f), 9(1)(b), 9(1)(i)’ is not apparent. It is not clear whether these numbers relate to the Act or the Regulations and what they mean; and
(c)even if the reference to ‘9(1)(f), 9(1)(b), 9(1)(i)’ is taken to relate to provisions of the Act which contain offences, the nature of those offences is not disclosed.

It follows that even if the description of the ‘things’ in the s 24K warrant is read together with the reference to ‘9(1)(f), 9(1)(b), 9(1)(i)’, the warrant does not contain any criteria by which a person in the applicant’s position at the time the warrant was executed could determine whether a particular ‘thing’ that the POCTA inspectors sought to search for or seize fell within the terms of the warrant.

In accordance with the principles set out at [65] above, the recipient of a s 24K warrant should be able to ascertain by reference to the terms of the warrant whether a particular thing is caught by the warrant. For example, in Corbett,[60] Callinan and Crennan JJ (with whom Gleeson CJ and Gummow J agreed) referred to the consequent need for a search warrant to be ‘properly confined’ to an identified object of the search by reference to a particular offence.[61] Likewise, in R v Tillett; Ex parte Newton,[62] Fox J held that a search warrant must describe the particular offence which is the object of the search with sufficient clarity.[63]
[60](2007) 230 CLR 606.
[61]Corbett (2007) 230 CLR 606, 628 [88], 632 [104].
[62](1969) 14 FLR 101.
[63](1969) 14 FLR 101, 113.

While there may be cases where the context of the warrant may lead to a very clear inference as to the subject matter of the warrant, for the reasons we have given, this is not such a case. An element of guesswork would be required to determine whether a particular ‘thing’ fell within the warrant. Essentially, that is because there is nothing in the warrant which conveys either expressly or by a very clear inference that the ‘things’ described in it can only be searched for and seized if they are connected with a sufficiently identified contravention of the Act or the Regulations.

It follows that the s 24K warrant does not comply with s 24K of the Act and is therefore invalid.

The invalidity of the s 24K warrant does not mean that the entry into the applicant’s property was unauthorised. That is because the entry was authorised by the s 24G warrant, which we have upheld. The validity of the s 24G warrant also means that the seizure of the dogs was valid. However, the invalidity of the s 24K warrant calls into question the validity of the seizure of the evidentiary items.

It will be recalled from [15] above that para 4 of the s 24G warrant purported to authorise the seizure of ‘any thing (that is not an animal) which is not of the kind described in the warrant’. That paragraph was expressed to be subject to s 24Q(1)(b). As appears from [26] above, s 24Q(1)(b) authorises the seizure of any thing, other than an animal, which is not of the kind described in the warrant if the inspector executing a valid warrant under pt 2A believes two matters on reasonable grounds. The first matter is that the thing to be seized is of a kind that could have been included in a search warrant issued under pt 2A and that it will afford evidence about the contravention of the Act or the Regulations. The second matter, which is cumulative on the first matter, is that it is necessary to seize that thing in order to prevent its concealment, loss or destruction or its use in a contravention of the Act or the Regulations.

Paragraph 4 of the s 24G warrant did not provide an independent source of power for the seizure of the evidentiary items. That power either existed by virtue of s 24Q(1)(b) or it did not exist at all. If there had been evidence at trial that the preconditions to the power in that section had been satisfied, the seizure of the evidentiary items would have been valid notwithstanding the invalidity of the s 24K warrant. However, the respondent did not rely on the power in s 24Q(1)(b) at trial and the evidence was not directed at establishing that those preconditions had been satisfied.

The judge made no findings in relation to s 24Q(1)(b) and the respondent did not file a notice of contention seeking to uphold the validity of the seizure of the evidentiary items on the basis of that section. Before us, there was some brief discussion of s 24Q but that discussion related to the question of whether the s 24G warrant was invalid because it referred to ‘all dogs’. There was no discussion about whether s 24Q(1)(b) authorised the seizure of the evidentiary items.

In these circumstances, the only conclusion that is open to this Court is that the respondent did not have any legal authority to seize the evidentiary items.

It follows that, in respect of ground 4(b), the appeal will be allowed and an order will be made requiring the respondent to return to the applicant all items it seized from the applicant’s property other than the dogs and any other items falling within the scope of the s 24G warrant.

Ground 7: Respondent’s failure to comply with s 24C

The applicant submitted that the judge did not give any sufficient consideration to her argument that, before applying for warrants and seizing her dogs in the execution of the s 24G warrant, Mr Primrose was obliged pursuant to s 24C to provide her with the opportunity to seek veterinary assistance. She contended that the respondent’s attendance at her property was an occurrence which engaged s 24C and that Mr Primrose’s failure to comply with that section constitutes an additional reason for the seizure of the dogs by the respondent to be set aside.

The applicant referred to the following statement in the Second Reading Speech for the Prevention of Cruelty to Animals (Amendment) Bill 1995 (‘1995 Bill’) in support of a general proposition that the coercive powers associated with a search warrant should only be invoked after the person responsible for the welfare of animals is given an opportunity to take remedial action:

The bill will extend the authority of inspectors with general powers to enable them to:
(a)free an animal from an entanglement, a tether or a bog — but not from the premises — if one of those encumbrances is causing pain and suffering; and
(b)inspect an animal observed to be showing signs of disease or injury for the need for treatment by a veterinary surgeon and to arrange for the attendance of a veterinary surgeon; and
(c)enter premises other than a dwelling to destroy animals in circumstances where they are a threat to human or animal life or are distressed or disabled and are suffering.

Those extensions of authority are proposed on the basis of experience in the administration of the [Act] since 1986. There is a need to empower inspectors to enable them to take a wider range of direct action to provide for animals in immediate need of attention. That is because it is typically the case that the person or persons responsible will not take the necessary action or are absent when that action needs to be taken. In those cases where it is apparent that the persons responsible are willing to respond to the need, they will be given the opportunity to do so before the inspector acts.[64]

[64]Victoria, Parliamentary Debates, Legislative Assembly, 7 September 1995, 158–9 (William McGrath); Victoria, Parliamentary Debates, Legislative Council, 10 October 1995, 96–7 (Robert Knowles).

The respondent submitted that the judge had considered the applicant’s argument regarding s 24C, and had correctly found that the decision to apply for the warrants, rather than exercise the power under s 24C, is an unreviewable prosecutorial decision.[65] It argued that there is nothing in the text of s 24C that acts as a fetter on an inspector’s ability to apply for search warrants.
[65]The respondent relied on Barton v The Queen (1980) 147 CLR 75; Jago (1989) 168 CLR 23, 39; DPP v Patrick Stevedores Holdings Pty Ltd (2012) 41 VR 81, 86 [26].

In our opinion, ground 7 must be rejected.

Section 24C does not state, in terms, that a POCTA inspector must not apply for a search warrant in respect of animals that may need veterinary treatment without first giving the owner of the animals an opportunity to arrange such treatment. Nor does such an obligation arise by implication. This is because s 24O indicates that, where Parliament intends to prescribe steps that must be taken by an inspector before executing a warrant issued under pt 2A, it specifically does so.[66]
[66]See [26] above.

Section 24C is directed at different factual situations to those set out in ss 24G or 24K and is in a separate division of pt 2A. Section 24C is in div 2 which, as we have said, is titled ‘Emergency powers to deal with animals’. The section confers powers on inspectors exercisable without a search warrant in emergency conditions. Section 24G is in div 3, which is titled ‘Search for and seizure of animals, warrants and authorisations’, and s 24K is in div 4, which is titled ‘Search for and seizure of things’. Sections 24G and 24K set out specific preconditions for the exercise of the powers they confer. Compliance with s 24C is not such a precondition.

The observations in the Second Reading Speech for the 1995 Bill on which the applicant relied are not reflected in ss 24G, 24K or any other provision of the Act which is relevant to ground 7 (or any other ground).

Preliminary matters raised by the respondent

The respondent made a preliminary submission that, even if this Court were satisfied that any of the grounds of appeal had a real prospect of success, leave to appeal should nevertheless be refused for two reasons. First, as a criminal proceeding has been commenced against the applicant, primacy should be afforded to that proceeding, particularly in circumstances where the magistrate has the power to return the applicant’s dogs to her.[67] Secondly, as the judge made an unchallenged finding that an order returning the dogs would appear to place the applicant in breach of the Domestic Animals Act, this Court ought not make any order which occasions such a breach.[68]
[67]See s 24X of the Act, which is discussed at [27] above.
[68]See [39] and n 29 above.

In view of our conclusion that the dogs were validly seized from the applicant’s property, it is not necessary for us to deal with the respondent’s preliminary submission.

Conclusion

As grounds 3(b) and 4(a) were arguable and ground 4(b) has been upheld, leave to appeal will be granted in respect of those grounds and refused in respect of all other grounds. The appeal will be allowed in respect of ground 4(b). We will hear from the parties on the appropriate form of order and on the question of costs.

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[2018] VSCA 245

26 September 2018