Hermann Horbelt v Andrew Elliott and Margaret Turner No. SCGRG 95/1416 Judgment No. 5333 Number of Pages 11 Magistrates Animals

[1995] SASC 5333

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA OLSSON J

CWDS
Magistrates - appeals from and control over magistrates - South Australia - appeal to supreme court - Magistrates Appeal - party acted in person - appeal on the ground that the appellant was denied the opportunity of receiving the assistance of another member of the public in the presentation of his case - discretion re McKenzie friend and role of such a friend - effect order as to witnesses - election made by appellant, who must be held to it.

Animals - liability of owners and keepers in respect of injuries by animals - Escape of dogs from private premises - appellant had possession and control of the dogs within the meaning of s34 of the Dog Control Act 1979 - appellant liable for any injury or loss caused by the dogs by reason of s52(1) of the Act.

Dog Control Act 1979 ss 34, 52, referred to. McKenzie v McKenzie (1970) 3 All ER 1034; R v Leicester City Justices; ex parte Barrow and Anor (1991) 3 All ER 935; Smith v R (1987) 71 ALR 631; Tomlinson v Tomlinson (1980) 1 All ER
593, applied. Bickmore v Ppiros (Olsson J, 12 February 1992, unreported), distinguished. Cobbett v Hudson (1852) 118 ER 341; Amos v Ruby Tin Mining Co (1860-1873) 3 QSR 173; Attorney-General v Bulpit (1821) 147 ER 2; Moore v Registrar of Lambeth County Court (1969) 1 All ER 782, discussed.

HRNG ADELAIDE, 5 October, 1 November 1995 #DATE 15:11:1995 #ADD 13:12:1995

Counsel for appellant:     Dr P M Salu

Solicitors for appellant:    Lawson Downs

Counsel for respondent:     Ms K A Chambers

Solicitors for respondent: Stanley and Partners

ORDER
Appeal dismissed

JUDGE1 OLSSON J This is an appeal from a stipendiary magistrate sitting the Civil Division of the Magistrates Court. The appellant was the defendant at first instance and seeks to challenge the propriety of a judgment, in the sum of $9,326, entered against him.

2. The relevant facts are set out in the definitive and carefully reasoned judgment of the learned magistrate and it is only necessary, for present purposes, to give an outline summary of them.

3. The proceedings before the learned magistrate focused on certain events which occurred at Hindmarsh Island on or about 4 May 1994. At that time the respondents were the owners of a flock of sheep and some cattle which were grazed on a farm property leased by the respondent Turner.

4. The appellant, his wife and family, lived in a house at Narnu Drive, Hindmarsh Island, not far from the farm property.

5. It was common ground that two dogs were kept at the appellant's house. One was a two-year old German Shepherd called "Prinz". The other was a five or six month old Rottweiler called "Boris".

6. The evidence revealed that Boris was unregistered, but that Prinz had been registered with the District Council of Port Elliot and Goolwa, the owner being recorded as the appellant's wife.

7. In the proceedings brought by the respondents, it was asserted that the two dogs were owned by the appellant and, at all material times, were in his control and supervision. It was averred that, on or about the date in question, the dogs wandered onto the farm property and attacked the respondents' stock. In the result, some sheep and a calf were killed, other sheep were injured and had to be put down, and some were, on the respondents' case, otherwise rendered commercially worthless.

8. The respondents claimed damages against the appellant by virtue of the provisions of the Dog Control Act (the "Act") and in negligence.

9. The appellant resisted the respondents' claim and, at trial, insisted on appearing in person. An issue arises on this appeal as to whether the learned magistrate inappropriately declined to permit the appellant's wife, in effect, to conduct his case for him, but I shall return to that aspect in due course.

10. The trial went forward on oral evidence and occupied two hearing days. Both sides called a series of witnesses to give oral evidence. In the event the learned magistrate upheld the substance of the respondents' claim and assessed damages in the sum for which he actually entered judgment.

11. The present appeal raises a series of issues and it is necessary to address them successively. I will first direct attention to certain technical questions which were debated.

12. First, it was argued that the trial miscarried because -
    - the learned magistrate refused to permit the appellant's
    wife to fully assist him in the formulation of his case in
    the role of a "McKenzie friend" and
    - refused to allow the appellant to call her as a witness in
    support of his case.

13. As to the initial complaint the transcript of proceedings is bereft of any reference to what is said to have occurred. In an affidavit sworn by Mrs Horbelt and relied upon on the appeal it is deposed as follows:
    "4. My husband asked the Magistrate if I could speak for
    him.

5. I had discussed this issue with my husband beforehand.
    The reason I thought it would be better for me to speak for
    him was because he has a very heavy accent, and some people
    find it hard to understand him.

6. My husband was also upset by what had happened, and I
    was concerned that it would be difficult for him to properly
    argue his case and thought that I was the person who should
    properly be answering the complaint.

7. The Magistrate refused to allow me to speak for him.
    During the trial I sat behind my husband in the body of the
    Court. I sat about 2-3 metres behind him. I was not
    allowed to sit at the bar table. I found it difficult to
    help him out. I did give questions to him, but it was not
    easy to do this from where I was seated. I was
    uncomfortable and stressed every time I got up to try and
    help him.

8. I note that the transcript starts after the matters
    referred to in paragraphs 4 and 7 were raised by my husband.

9. My husband then told the Court which witnesses he would
    call, and asked if I could talk for him. The Magistrate
refused.

10. At the start of the second day my husband again asked
    whether I could speak for him. This request was refused."

14. It is at once to be seen that, even taking what is said in the affidavit at face value, the application to the learned magistrate went far beyond seeking permission to act as a "McKenzie friend". In terms, it was a request that Mrs Horbelt really act as advocate for her husband.

15. A perusal of the judgments of their Lordships in McKenzie v McKenzie
(1970) 3 All ER 1034 and in R v Leicester City Justices, ex parte Barrow and Anor (1991) 3 All ER 935 readily reveals that the concept of a "McKenzie friend" envisages permitting a lay person to attend the trial and take notes, quietly make suggestions to the litigant in person and give advice to that litigant. It certainly does not extend to acting as a lay advocate and/or speaking on behalf of the litigant. Moreover, it is a matter of discretion of the Court, in the particular case, as to whether it is appropriate for a "McKenzie friend" to be involved at all (Smith v R (1987) 71 ALR 631).

16. It is to be noted, by way of contrast, that section 38(4) of the Magistrates Court Act, 1991 expressly confers a right in a litigant in the Minor Civil Actions jurisdiction "to be assisted by a person who is not a legal practitioner" on an honorary basis. However, in the other jurisdictions of the Magistrates Court, the situation rests on the authorities above referred to.

17. The learned magistrate was plainly correct in refusing the request made to him, in the terms in which it was made. Moreover, it is apparent, both on Mrs Horbelt's affidavit and a report obtained by me from the learned magistrate, that she was permitted to (and did) act as a "McKenzie friend" in the true sense of the relevant concept, albeit that she complains that she was not permitted actually to sit alongside him at the bar table and says that she was `stressed' and `uncomfortable'. The nature and manner of participation of the appellant's wife was essentially a matter for the discretion of the learned magistrate and I fail to see any proper ground of complaint.

18. As to the status of Mrs Horbelt as a witness, the transcript does record an initial exchange between the learned magistrate and the appellant on this topic. This was in the context of the making of the usual order that witnesses remain out of court.

19. The learned magistrate made it clear that, if Mrs Horbelt was to be a witness, then she could not remain in court until called as a witness. This was plainly a correct direction. Moreover, it would have been quite unjust and intolerable to have a situation in which she not only acted as a "McKenzie friend", even in the true sense, but also entered the witness box to give evidence as to what are now said to be matters relevant, central and germane to the issues to be decided.

20. In the event the practical situation was that, having been fully informed of the situation, the appellant elected to have his wife remain in the courtroom to assist him, rather than leave and later appear as a witness.

21. As to this situation the learned magistrate reported to me in these terms:-
    "Thank you for your letter of 9 October, 1995. I report as
    follows.

The defendant gave an undertaking at the commencement of
    proceedings that he would not call his wife to give
    evidence. This was after the issue of witnesses remaining
    in Court had been canvassed. The defendant's wife was
    allowed to remain in Court to assist him after the
    undertaking had been given. I have no recollection of any
    formal application made by the defendant and refused by me,
    for him to call his wife to give evidence during the course
    of the trial.

It may be that I reiterated on another occasion that the
    defendant had undertaken not to call his wife to give
    evidence. I do not recall such an instance, but there were
    occasions where, in short conversations, the defendant
    sought my advice or clarification about what was happening
    and what he could or could not do. However, I do not recall
    any instance where the defendant made it clear to me he
    wished to go back on his original undertaking given at the
    commencement of the trial, because it had become necessary
    to call his wife to give evidence on a particular topic. I
    was never told of such a topic of evidence and I have no
    idea what evidence his wife could have given.

I can recall the defendant presenting his case by calling a
    number of witnesses and giving evidence himself. There were
    discussions concerning two subpoenaed witnesses that could
    not be called because they were interstate. I have no
    recollection of any attempt by the defendant during this
    process to call his wife.

I can recall an occasion during the plaintiff's case where
    the defendant again asked me to allow his wife to represent
    him at the bar table. I refused this application.

The defendant's wife remained in the Courtroom throughout
    the whole trial in accordance with the decision made at the
    commencement of the trial. I observed her give the
    defendant assistance throughout the trial. He would
    converse with her from time to time and she would whisper
    verbal advice to him on a number of occasions.

I hope this is of some assistance to you."

22. The authorities bearing on the topic of orders excluding witnesses from court are not readily reconcilable. The old cases of Cobbett v Hudson (1852) 118 ER 341 at 342 and Amos v Ruby Tin Mining Company (1860-1873) 3 QSR 173 suggest that a witness who remains in court after a general direction to leave is subject to punishment for contempt, but may, nevertheless, be called as a witness. This was not the view expressed in Attorney-General v Bulpit (1821) 147 ER 2, which held the evidence inadmissible.

23. However, the modern view is that articulated in Phipson on Evidence 14th Edn at paragraph 11-05, in which, having emphasised that the question is one of practice and not one of law (Moore v Registrar of Lambeth County Court
(1969) 1 All ER 782, Tomlinson v Tomlinson (1980) 1 All ER 593), the learned author points out that the established practice differs, depending on whether the case is being heard in the civil or criminal jurisdiction.

24. My researches have failed to reveal any relevant Australian authority. I am content to accept what fell from Sir John Arnold P in Tomlinson v Tomlinson (supra, 596-7) as being the principle appropriate to be applied in civil cases. It certainly accords with one's notion of fairness and justice. In that case the learned President, inter alia, said -
    "It seems to me that the right course is this: witnesses
    should not be under any obligation to leave the court,
    except where an order is made excluding them; that the
    proper course for justices to pursue, if an application is
    made to them, would be to exclude the witnesses, unless they
    were satisfied that that would not be an appropriate step to
    take; but that, if they think it is a case in which perhaps
    the witnesses should be excluded, then where a party is not
    represented they should suggest that perhaps he might like
    to make an application to that effect. This of course does
    not apply and never has applied to the parties themselves or
    their solicitors or their expert witnesses. Those are never
    excluded from the court.

Then it seems to me that there is one more matter to be
    considered: what should happen if a witness remains in court
    or a person remains in court after an order has been made
    excluding witnesses and his testimony is then offered to the
    court? In that case there should it seems to me be, and
    there is some indication that there already is, a discretion
    to admit that witness's evidence, notwithstanding that he
    has remained in court in apparent defiance of a ruling. Of
    course the magistrates, if they were satisfied that
    contumacy or deception was involved, would be likely to
    exercise their discretion by excluding the testimony. But,
    on the other hand, if the case were one in which the
    possibility of that person being called as a witness was not
    apparent at the time when the exclusion order was made and
    the person remained, then they might well exercise their
    discretion the other way. But it being a discretion it
    would have to be exercised in every case in accordance with
    the merits of the occasion."

25. That having been said, it is important to bear in mind that, in the instant case the options which were open to the appellant were made abundantly clear to him at the outset. The attitude expressed by the learned magistrate was entirely reasonable. If Mrs Horbelt was to give evidence on important matters it was quite inappropriate for her to remain in court until she was called. The fact that she was actively assisting her husband to conduct his case necessarily rendered her partisan. The appellant consciously made a specific election and must be held bound to it, as a matter of fairness to the respondents. The exercise of discretion to decline to allow Mrs Horbelt to be called, if that was the situation, was eminently proper in the circumstances and cannot now be impugned.

26. However, it is not unimportant to bear in mind that the transcript makes no reference to any subsequent application by the appellant to call his wife and the learned magistrate has no recollection of such an application being made. It thus remains in considerable doubt as to whether any such application was ever in fact made, as is now asserted.

27. Be that as it may there is simply no merit in either of these technical issues raised in the supplementary grounds of appeal.

28. It was argued on behalf of the appellant that the learned magistrate was in error in finding that, in any relevant sense, the appellant was the owner or in control of either Prinz or Boris at any relevant time. It was said that the evidence indicated this his wife was the owner and in control of Prinz and that Boris had been given, as a present, to the appellant's 15-year-old daughter.

29. Such a contention is patently insupportable.

30. As the learned magistrate pointed out in his judgment, the logical commencement point is section 34 of the Act, which was in force at the time of the alleged cause of action. That section reads as under:
    "Responsibility for control of dogs
    34. (1) Subject to this section, the owner of a dog is
    responsible for the control of the dog for the purposes of
    this Act and for the purposes of any civil action in
    relation to any injury, damage or nuisance caused by the
    dog, notwithstanding that the owner does not have possession
    or control of the dog or that another person has possession
    or control of the dog.

(2) In any proceedings for an offence against this Act or
    in any civil proceedings in relation to any injury, damage
    or nuisance caused by a dog -
    (a) where -
     (i) it appears from a register maintained under this Act
     that a dog was registered in the name of a particular
     person before the material time;
    and
     (ii it does not appear from that register that the dog
     was subsequently (but before the material time) registered
     in the name of some other person,
    the person in whose name the dog was registered will be
    taken to have been the owner of the dog at the material time
    (whether or not the registration continued in force until
    the material time) unless that person proves that the dog
    was subsequently registered in the name of another person;
    or
    (b) where any dog, whether registered or unregistered, is
    shown to have been habitually in the apparent ownership of
    any person, that person will, in the absence of proof to the
    contrary, be taken to have been and to continue to be the
    owner of that dog.

(3) A person who keeps, or has possession or control of, a
    dog has, for the purposes referred to in subsection (1),
    while continuing to keep or continuing in possession or
    control of the dog, the same responsibility for the control
    of the dog as the owner of the dog.

(4) In any proceedings for an offence against this Act or
    in any civil proceedings in relation to any injury, damage
    or nuisance caused by a dog, any person who was an occupier
    of premises in which the dog was kept or permitted to live
    at the material time will be taken to have been keeping, or
    to have had possession or control of, the dog at that time
    unless it is proved that another person of or above the age
    of 18 years was keeping, or had possession or control of,
    the dog at that time.

(5) In any proceedings for an offence against this Act or
    in any civil proceedings in relation to any injury, damage
    or nuisance caused by a dog, it is a defence for a person
    who was the owner, or the presumptive owner, of the dog at
    the material time, if that person proves that the dog was at
    that time in the possession or control of another person
    without his or her consent."

31. These evidentiary provisions support the primary liability provision contained in subsection (1) of section 52 of this Act. That subsection stipulates that -
    "Any person responsible for the control of a dog is liable
    in damages for any injury or loss resulting from the actions
    of the dog."

32. It is at once apparent that civil liability under the act for injury caused by a dog rested not only on the legal owner, but also on any person who kept in his or her possession or had control of a dog. By virtue of subsection (4) of section 34 any person who is an "occupier" of premises (in the legal sense) in which a dog is kept or permitted to live, at the material time, is to be taken to having been keeping or to have had possession or control or it at that time, in absence of proof that another person of or above the age of 18 years was keeping, or had possession or control of the dog at the time.

33. The learned magistrate stressed that it was beyond question, on the evidence led, that, at the relevant time, the appellant was, at the very least, the legal occupier of premises in which both dogs were kept or permitted to live; and that the onus of proof envisaged by subsection (4) of section 34 of rebutting the statutory presumption had simply not been discharged. He was undoubtedly correct in that assessment of the evidence. It followed that, on such a basis alone, responsibility for both dogs attached to the appellant.

34. Additionally, as the learned magistrate recorded, there was also other, direct, evidence that, at the relevant time, the appellant was either an owner of the dogs, or had possession or control of them.

35. First and foremost, as the transcript of evidence discloses, the appellant deposed that he was the owner of the dogs. He now seeks to assert that the transcript erroneously recorded his testimony. However, it is significant that the very context of the recorded testimony suggests that the transcript is accurate. Moreover, the learned magistrate made these findings:
    "I say that the defendant owned the dogs and controlled
    them. It was quite clear during his own evidence and
    generally during the trial that that was the case. It is
    clear that the defendant exercised a proprietorial right
    over the dogs. They were essentially family dogs that were
    kept on his property. A number of witnesses including
    witnesses like Ingrid Flenche and Raymond Mander and
    Reginald Jenkinson and Rodney Beadman, all called by the
    defendant, confirmed my general impression that the
    defendant was responsible for and exercised general
    ownership of the dog(s). It may have been shared by other
    members of the family, but it included very much the
    defendant himself. Quite apart from that, I find that the
    defendant along with other members of the family, enjoyed
    possession of the dogs. The defendant generally allowed the
    German Shepherd to run on his one hectare property.
    However, he generally kept the Rottweiller Boris locked in
    the courtyard area of his home."

36. Furthermore, evidence was placed before the learned magistrate that, on the complaint of the District Council of Port Elliot and Goolwa, the appellant appeared before the Magistrates Court sitting at Christies Beach late in 1994, charged with two counts of dogs attacking sheep (section 4(1) of the Act) and two counts of dog wandering at large (section 31 of the Act). He was represented by a legal practitioner on those occasions.

37. The evidence revealed that the appellant pleaded guilty to all of those charges, which undoubtedly related to the events of 4 May 1994 - given that, in submissions to the magistrate dealing with the charges, it was only conceded that injuries had been caused to four or five sheep.

38. As to this the learned magistrate dealing with the civil claim said:
    "Of most significance, however, with respect to those pleas
    was that the defendant must be taken by those pleas in that
    court to have admitted that he was a person responsible for
    the control of two dogs, Prince (sic) and Boris, and that
    the dogs were wandering at large contrary to Section 31 of
    the Dog Control Act 1979. In addition to that he must be
    taken by his pleas to have admitted before the criminal
    court that those dogs attacked sheep, although as I have
    indicated I accept that he did not thereby admit the number
    of sheep that had been proved in these proceedings. That is
    the significance of those criminal law proceedings. In my
    view, the defendant really cannot be accepted or to be taken
    seriously when he comes along in the civil proceedings and
    denies that he was in control of those dogs or denies that
    they attacked sheep contrary to the Dog Control Act."

39. In my opinion, such reasoning is beyond criticism.

40. It follows that so much of the appeal as seeks to impugn any legal responsibility of the appellant for the actions of Prinz and Boris must be rejected.

41. Counsel for the appellant went to some lengths to endeavour to demonstrate that various findings of fact made by the learned magistrate were erroneous, or not adequately supported by the evidence. I do not find it necessary to deal with these in detail. Suffice it to say that I have carefully read the transcript and studied the findings made by the learned magistrate.

42. In this regard it is important to note that those findings were made in the course of what were ex tempore reasons expressed at the conclusion of the evidence, whilst such evidence was fresh in his mind.

43. I have concluded that, for the most part, the evidence abundantly supported the primary findings made. In many respects what has been placed in issue by the notice of appeal comes down to a proper interpretation of the evidence, given the atmosphere of the trial and the impact of the various witnesses. The significant findings made were fairly open to the learned magistrate and, in totality, the case for the respondents can only be described as overwhelming.

44. In some instances confusion arose, for example, as to correct points of the compass, but I entertain no doubt that the learned magistrate well appreciated the relative geography involved, despite how it was described. For example, the rough plans placed before him (and in relation to which he was speaking) clearly showed general physical relationships.

45. It is a quite profitless exercise to seek at this juncture, to "nit pick" the transcript and the reasons for judgment in an endeavour to dredge up a series of apparent anomalies. The basic findings made were, in my view, well nigh inevitable.

46. What was said in Bickmore v Ppiros (Olsson J, 12 February 1992, unreported) cannot be repeated too often. It is unproductive to subject ex tempore reasons to unduly harsh srutiny and undiscriminating dismemberment. What must be considered is the broad thrust of them and the general basis of reasoning adopted.

47. In his submissions Dr Salu, of counsel for the appellant, sought to isolate out of the reasons what, he argued, were a number of errors of fact in findings made, in an attempt to undermine the validity fo the ultimate key conclusions come to. All that need be said concerning them is that, as to some of the alleged "errors", I do not consider, on a fair reading of the relevant material, were really errors at all. For example, the reference to the direction of departure of one of the dogs must be read as an interpretation of a rough sketch. Perhaps some of the description employed was not entirely felicitous, but there is no reason to doubt that the learned magistrate well appreciated the essential thrust of the evidence led.

48. In other instances I simply do not accept the validity of the appellant's propounded interpretation of the effect of the evidence. Some criticisms are little short of unsupported competing inferences sought to be drawn on the evidence. There is, for example, no compelling basis to infer, as Dr Salu would have me do, that two dogs could not have wrought the havoc complained of within the relevant 6.5-7 hour period in question.

49. The plain fact of the matter is that the learned magistrate, in the context of the atmosphere of the trial and whilst impressions were fresh in his mind, made a series of findings and drew various inferences which were clearly open to him. There is no basis, consistent with well settled authority, upon which I could properly interfere. On the contrary, as I have said, the conclusions come to were well nigh inevitable.

50. To the extent that there may be some substance in one or two of the points made, these seem to me to be so inconsequential, in the overall order of things, that they are not significant.

51. Equally, I do not find any of the criticisms of the approach of the learned magistrate to questions of quantum convincing. On the contrary they are amply justified by compelling evidence given, in the main, by independent witnesses who were well qualified to give the evidence recorded in the transcript. The learned magistrate was entitled, in that regard, to prefer the evidence of the respondent's witnesses to the material and arguments sought to be advanced by the appellant. Indeed, it became apparent, in the course of debate, that there was no substance whatsoever in most of the matters complained of. It is unnecessary to retrace ground, in this regard, which is already recorded in the transcript of the appeal. At the end of the day the only point of substance was the argument that there was some evidence of an expert to suggest that about 34 injured sheep which survived may have had a residual value of $30 per head as breeders. As against that the respondent Elliott deposed that these sheep were not sold and were of no commercial value. He deposed that he had been so advised by the stock and station agent. He was not cross examined on that aspect and there was no evidence of how those sheep were ultimately dealt with. The learned magistrate accepted such evidence, as he was entitled to do.

52. It only remains to comment that a perusal of the transcript strongly suggests that, contrary to what is now argued, the appellant was well able to look after his own interests, given that, at times, he obviously became emotionally involved and quite obstreperous. He was fairly dealt with and only has himself to blame for insisting on conducting his own defence.

53. At the end of the day I conclude that this appeal has no merit. On the contrary I am satisfied that the conclusions arrived at by the learned magistrate were carefully reasoned and soundly based.

54. The appeal must be dismissed.