Holdsworth and Ellison v RSPCA
[2014] VCC 1186
•8 August 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | (Un) Revised (Not) Restricted Suitable for Publication |
Case No. CI-03-04358
| JAMES MAXWELL HOLDSWORTH & HEATHER MUNRO ELLISON | Plaintiffs |
| v | |
| RSPCA (VIC) INCORPORATED | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 February to 14 May 2014 | |
DATE OF JUDGMENT: | 8 August 2014 | |
CASE MAY BE CITED AS: | Holdsworth & Ellison v RSPCA | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1186 | |
REASONS FOR JUDGMENT
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Catchwords: The Prevention of Cruelty to Animals Act 1986 – destruction of large number of Murray Grey cattle by an inspector of the defendant effectively on basis that they were abandoned, neglected and in an emaciated condition – denial of this by plaintiffs who owned the animals in partnership – action by them against defendant in negligence, breach of statutory duty, breach of duty as a bailee, trespass, conversion and detinue – lengthy trial involving large volume of evidence, long submissions and various rulings – issues of liability and number of cattle involved to be determined prior to evidence as to loss and damage, should such be required – finding that defendant is liable to plaintiffs – finding that inspector hastily and negligently put down a number of cattle.
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr S Langslow with Mr P Berman | Maitland Lawyers |
| For the Defendant | Mr P Scanlon QC with Mr A Saunders | Lander & Rogers |
HIS HONOUR:
General background
1 In very summary form, this claim is one by two partners, Mr James Holdsworth (“Holdsworth”) and Ms Heather Ellison (“Ellison”). Their claim is against RSPCA (Vic) Incorporated (“the RSPCA”). Essentially, the plaintiffs are claiming damages in respect of the slaughtering of a portion of their herd of stud Murray Grey cattle (“the herd”) by two servants or agents of the RSPCA, Mr Jason Nicholls (“Nicholls”) and Mr Mark Roberts (“Roberts”). Nicholls, an RSPCA inspector at the time, was in charge of this particular investigation by the RSPCA and the events that unfolded. The plaintiffs also claim damages in respect of a portion of their herd which they effectively allege disappeared whilst under the control of Nicholls on behalf of the RSPCA. Thus, a portion of the herd was slaughtered. Another part was recovered. The balance, allege the plaintiffs, simply disappeared whilst under the control of the RSPCA. The herd was alleged to have been carefully bred along selected lines.
2 The events in question occurred in the first half of 2003. In particular, the principal activities carried on by Nicholls and Roberts occurred on 27, 28 and 29 May of that year. Some other relevant events occurred in the preceding period and in the following days and weeks.
3 At the relevant time, the herd was agisting on property belonging to the Framlingham Aboriginal Trust at Framlingham, near Warrnambool in western Victoria (“Framlingham”). The herd had been brought there from southern New South Wales because of the very severe drought conditions which were affecting large parts of south-eastern Australia in 2001, 2002 and the first half of 2003. At Framlingham there is a substantial area of forest (some 3,000 acres) which contains some clearings, and there are three relevant cleared paddocks, totalling in area some 300 acres. On one of the paddocks are cattle yards and a race, crush and ramp. The amount of feed available at Framlingham, whether in the cleared paddocks or the forest, was an issue which received considerable attention, including the tendering of many photographs.
4 In relation to the slaughtered cattle, in essence the plaintiffs say that they were not in a condition that required them to be put down. The RSPCA disagrees, claiming that it was acting in accordance with its authority pursuant to The Prevention of Cruelty to Animals Act 1986 (“the Act”). It alleges that the cattle had effectively been abandoned, neglected and were in an emaciated condition. It alleges that it was appropriate that they be put down in order to put an end to their suffering – see Transcript (hereinafter referred to as “T”) 151. A great deal of evidence, including numerous photographs, was put before me in relation to this central issue and the surrounding circumstances. Indeed, as shall be discussed, this was a very lengthy trial.
5 In relation to the missing cattle, there is no clear explanation as to where they went. What is asserted is that they disappeared whilst under the control of or in the possession of Nicholls on behalf of the RSPCA. The carcasses of those slaughtered were taken to an abattoirs, operated by Tesbury Meats Pty Ltd (“Tesbury”). Documents of Tesbury reveal the tally of carcasses that were brought there, although, in a case where there are many mysteries and disputes, even that figure is difficult to ascertain with precision. The plaintiffs, and those assisting them, have a tally of the cattle ultimately recovered from Framlingham. However the situation is viewed, there is a substantial shortfall.
6 The above is a very brief summary relating to some of the central issues in the case. There was a large amount of evidence concerning matters surrounding those central issues. Such evidence related to such things as conversations, arrangements made, movement of the herd, its condition from time-to-time and, of course, its condition as at the time that the RSPCA intervened. Greater details in relation to all of these matters will be set out when I summarise the evidence of the many witnesses and make my findings of fact.
7 Mr S Langslow of counsel with Mr P Berman of counsel appeared on behalf of the plaintiffs. Mr P Scanlon QC with Mr A Saunders of counsel appeared on behalf of the defendant. A very large number of witnesses gave evidence. An even larger number of documents, photographs and the like were tendered. Indeed, the case has to date run for some 44 sitting days. One potentially significant aspect of it has not been concluded.
8 In relation to this last-mentioned matter, it was essentially agreed after the case had advanced a considerable distance that two central issues should be determined by me prior to moving onto the third issue, should that be necessary. In short, all evidence relating to the issues of liability and, should liability be established, the number of animals which is to form the basis of the assessment of any damages has been called. Evidence concerning those matters is at an end. Closing addresses in relation to those issues have been made. At a later date, evidence and admissions concerning the quantum of damages will be heard should my findings on liability and cattle numbers warrant this. I should add that some evidence concerning the quantum of damages has already been taken from three witnesses, this being done prior to the decision being taken to divide the case in the manner described. Because the number of cattle which might form the foundation for the assessment of damages had an increasing number of variables, it was thought desirable that I conclude the evidence concerning that, rather than having to receive fresh calculations from the financial experts every time a new possibility for the relevant cattle numbers arose. It then also seemed desirable to deal with the issue of liability, as, if that issue was determined against the plaintiffs, obviously the whole issue of damages would be at an end. Accordingly, this Judgment deals with the issues of liability and, secondly, and if it should be necessary, the number of cattle that constitutes the basis for the assessment of damages.
9 Another background matter that should be mentioned is that in May 2005, the RSPCA prosecuted the plaintiffs for breaches of the Act, the case being heard at the Ballarat Magistrates’ Court. The prosecution failed. The charges were dismissed. What had occurred at the Ballarat Magistrates’ Court was referred to from time-to-time and parts of the transcript were placed in evidence.
10 A considerable amount of time was spent at the commencement of this trial on preliminary issues. Whilst I offered to provide written reasons in relation to my Rulings in relation to such issues, there has been no request for same. Nevertheless, I shall now deal with them briefly as they assist in casting some light upon the manner in which the claim is brought and upon the assessment of any damages in the event that the plaintiffs are successful.
(a) Jury or cause?
11 It should be said at the outset that these proceedings were issued in 2003. To put it mildly, it is a case that has been around for a very long time. It was put on hold whilst the unsuccessful prosecution of the plaintiffs by the RSPCA took place in the Ballarat Magistrates’ Court in 2005, but nevertheless it is a matter concerning which there has been great delay.
12 The plaintiff originally asked for a jury. Then, in late 2013 at a mention before me, in essence the case was fixed as a cause. There was some thought that a jury might not be available on 24 February 2014, being the date upon which the matter was fixed for hearing. Next, consent orders signed by both parties were received, these stating that the matter was going to be fixed as a jury on 24 February 2014. There was then further confusion about the payment of jury fees. On 24 February 2014, when the case was called on, the plaintiff requested that the matter proceed as a cause, whilst the RSPCA sought a jury. The RSPCA then conceded that there could be some “great force” in relation to the proposition concerning the inability of a jury to be charged with the responsibility of assessing damages – see T10. Indeed, it was conceded that the issue of damages was probably too complicated for a jury – see T23. However, the RSPCA still argued that the issue of liability should be determined by a jury. The plaintiff argued that the whole matter was too complicated for a jury and should proceed as a cause.
13 My Ruling was that the matter should proceed as a cause. The action is pleaded in negligence, trespass, breach of duty of a bailee, detinue, conversion, and some seven breaches of statutory duty, as well as the somewhat nebulous pleading of unlawful removal of cattle. Further, questions of a shifting burden of proof, particularly in relation to the issue of breach of duty of a bailee, could well have arisen. The manner in which the case was to be argued seemed to me to make it an inappropriate matter for a jury. That is in addition to any matters relating to the saving of time and expense. It was always apparent that this was going to be a very long case. Given the number of witnesses and the issues, the original estimate of 10 days seemed to me to be optimistic in the supreme, and that is how matters eventuated. Secondly, the concession by the RSPCA that the issue of damages was too complex for a jury seemed to me to put the question beyond doubt. The splitting of a case so that liability is considered by a jury and damages assessed by the judge was described by Hedigan J in Altmann v Dunning [1995] 2 VR 1 as, “…a course rarely, if ever, followed in a civil jury trial”. Thirdly, the probable existence of varying or shifting burdens of proof represented another reason why the case might not be appropriate for a jury.
14 In short, I determined that this was a complicated case, inappropriate for a jury, and that it should proceed as a cause. Without wishing to pull myself up by my own bootstraps, the manner in which this involved case proceeded and the duration of it seem to me to have provided some justification, however retrospective, for the decision that it should proceed as a cause.
(b) Jurisdiction in relation to damages
15 As stated, any assessment of damages does not form part of this Judgment. A somewhat complicated argument concerning damages arose at the outset. This related to the fact that the proceeding was issued in 2003 before the abolition of the jurisdictional limit of $200,000 in property damage cases brought before this Court. I will not go into the details of the argument or my Ruling, which also dealt with an application to further amend the Amended Statement of Claim insofar as it related to this issue. Whilst, hopefully, this whole situation of the potential amount of damages which the plaintiffs are able to claim can be resolved, it is more appropriate that I turn to it if and when damages are being considered. As stated, argument concerning it occurred at the commencement of the case.
(c) Other rulings
16 A number of other rulings were made during the conduct of this case concerning such matters as tendency evidence, admissibility, hearsay and a belated and somewhat audacious attempt to introduce a totally new defence during the closing address. This was, in essence, an attempt on behalf of the RSPCA, via its legal representatives, to avoid liability on the basis that it was not vicariously liable for the actions of Nicholls (or, for that matter, Roberts). I gave a reasonably lengthy Ruling concerning this and shall not set that out here.
17 Suffice to say, as I pointed out to Mr Scanlon who advanced this argument, it was something that had never been pleaded. It was a defence which had never been mentioned by him when he was arguing that this was in effect a simple one-issue case suitable for a jury. It was not raised by him when, before evidence commenced, I asked him what he wished to say concerning the issues. Suffice to say that I did not allow an amendment to the defence so as to allow the introduction of what I was told was a complete defence, one which had never been raised in the pleadings or during the evidence of in excess of 20 witnesses over a period in excess of 35 sitting days (and raised, without warning, during a closing address).
18 Thus, the situation remains that, if the plaintiffs succeed in making out a case based on the behaviour and activities of Nicholls, they will also have made out such a case against the RSPCA.
The oral evidence on behalf of the plaintiffs
19 I turn now to a summary of the oral evidence given by and on behalf of the plaintiffs (including a transcript of evidence given by the late Mr Warwick Kirkland). Because some of this evidence involves the question of the number of cattle forming the basis for the evaluation of quantum, should this become necessary, necessarily there shall be reference to some pieces of evidence which, on their face, may appear to relate more to damages.
20 Because the oral evidence was so lengthy, this summary shall be directed to those matters which form the foundation for my ultimate findings of fact. In this case, there were many mysteries, theories and allusions to various plots and schemes. As shall be discussed, it was argued by the RSPCA that these effectively infected at least some of the evidence of, and on behalf of, the plaintiffs. Suffice to say for the moment that there was inadequate evidence to support much, if not all, of this speculation and I shall confine this summary of the oral evidence to matters for which at least some evidentiary base was established.
(a) Mr James Holdsworth
(i) Evidence-in-chief
21 Mr James Holdsworth (“Holdsworth”), one of the plaintiffs in this action, has been a farmer from childhood. He has always had a lot to do with cattle and, since 1968, has been involved with stud Murray Grey animals. He entered his steers in competitions, being successful.
22 I should say at the outset that Holdsworth was both quite deaf and had been unwell. On a number of occasions he seemed to become quite confused whilst giving evidence. It would also seem to me that at times he may have exaggerated matters such as the good condition of the stock. However, on balance, I found him to be a truthful, if at times confused, witness on many factual matters. I will leave to one side some of the more speculative theories as to what could have happened, for example, to missing cattle.
23 Initially, his Murray Greys were on his farm at Westmere in western Victoria where he had lived all his life. When his late wife became ill with cancer, some of the herd were moved to a property called Uardry in southern New South Wales. Some cattle went there, some remained at Westmere.
24 Holdsworth’s late wife knew Ms Heather Ellison (“Ellison”), the other plaintiff, who lived near Bairnsdale.
25 Ultimately, after the death of his wife, Holdsworth went into partnership with Ellison, a business name being registered. That business name is JA Heath Inland Holdings. Both plaintiffs supplied some Murray Grey cattle to the partnership. The land at Uardry had been leased. In 1996, the partnership purchased a property called “The Willows” at Carrathool in New South Wales. This was about an hour and 10 minutes from Griffith.
26 In 2001 and 2002 there was a drought (which continued into 2003). The plaintiffs were determined to keep their better stock. They engaged in the culling of their stock, selling those which they considered unlikely to make good cattle.
27 When the drought struck and the feed disappeared on the property at Carrathool, the plaintiffs engaged a drover to take the herd on the various stock routes in the region – the so-called “long paddock”. There are a number of these routes in the Riverina area and they are run or supervised by rangers associated with local municipalities.
28 The cattle were on the “long paddock” for a period in excess of 12 months, covering something between 5 and 10 or 12 kilometres per day. At times both Holdsworth and Ellison were on the road with them. Records were kept of calves born and cattle sold at various places, such as Jerilderie. As shall be discussed, it was the practice of the plaintiffs to have an ear tag placed on one ear of the cattle, a tattoo made on the other ear, and records of this kept in a book.
29 Ultimately, the cattle came off the road and were placed on a property called “Piney Park”, near Corowa, where there was a failed canola crop. Eventually, the partnership bought the property. The partnership sold some cattle and also shifted some heifers to Bairnsdale. In addition, a lot of feed was purchased for the cattle at Piney Park, together with supplements such as molasses. The cattle were also drenched and those that needed it were treated for a condition called “pink eye”. Overall, the cattle at Piney Park were fit and healthy. The significance of evidence of this nature is that it is some indication of the lengths to which the plaintiffs were prepared to go to look after their cattle.
30 With water running out at Westmere, Holdsworth organised for the delivery of some. This was brought by Mr Robert Rentsch. Holdsworth enquired of Mr Rentsch as to whether there was any feed available in the Warrnambool area, and it was Mr Rentsch who apparently suggested Framlingham.
31 Accordingly, Holdsworth and Ellison inspected Framlingham, where they also met Mr Ron Beard. Mr Beard was the farm manager at Framlingham. An agreement was reached concerning agistment in certain of the paddocks and in the forest. Ellison took notes of the agreement.
32 Holdsworth stated that the feed available at Framlingham was of very good quality, compared with that which the cattle had had before. There was also good water, with three or four dams. In addition, Holdsworth and Ellison purchased in Warrnambool two, large, 1,500 gallon plastic troughs. That there was plenty of water available for the stock is not an issue. Holdsworth and Ellison bought all the material required for an electric fence, so that their cattle were confined to a discrete area, being the 300 acres of northern paddocks and the forest. At the southern end of the forest, which was not accessible to the plaintiff’s cattle, were some other paddocks, some of which were farmed by Mr Len Clark. Mr Rentsch also had some cattle in that area, as did his brother-in-law, but the only Murray Greys at Framlingham were those of the partnership.
33 At the end of February 2003, a livestock carrier, Mr Craig Congram was engaged to move the herd to Framlingham. He and his drivers did this in B-doubles. Holdsworth also went to Framlingham. Because of the location of certain trees at Framlingham, the B-doubles could not be taken right into the yards. As a result of that, both cows and calves had to be jumped off a short distance from the tray at the back of the truck. Some four or five cows and a few calves were hurt as a result and had to be put down. Four bulls had also been transported, but it was not suggested that they were hurt.
34 Holdsworth finished the fencing and remained at Framlingham for approximately a fortnight to make sure that the herd had settled in, that cows were mothering up with calves, and that there were not cattle running around where they should not be.
35 By mid-May 2003, there was grass in the paddocks at the northern end of the forest, but it was short. However, there was grass which the cows could eat. The last time that Holdsworth saw the herd before the intervention of the RSPCA was on approximately 14 May. They had definitely picked up and he had no thought that any of them were in trouble. He had no reason for concern because of their general appearance.
36 Holdsworth also had left relevant telephone numbers with Ms Leanne Ryan, who, with her family, occupied a farm adjacent to Framlingham. On one occasion Ms Ryan rang Holdsworth and told him that there was a cow dead on the property. As a result, Holdsworth came to Framlingham and removed it from where it was, also calling on Ms Ryan to thank her.
37 Holdsworth was shown a document, subsequently put into evidence, which could be described as a summary of phone calls, essentially those made rather than received, as the summary was prepared from telephone bills. The records of calls made from Nicholls’ mobile phone appear in the same document but in a different fashion. The only contact between Holdsworth and Ms Ryan was on 28 March 2003 and concerned the animal that was dead.
38 In the first two weeks of May various calls were made from Holdsworth’s home phone at Westmere, indicating that he was there rather than in New South Wales. He would have been going to Framlingham during this period.
39 Holdsworth was then in New South Wales from approximately 22 May until Monday, 26 May. He then returned on his own to Westmere, leaving Ellison behind and apparently without a car. He was returning to Westmere in order to put his crop in.
40 Holdsworth was then taken to matters concerning the registration of stock with the Murray Grey Society. Whilst that society was based in Albury, Holdsworth had animals registered with them. However, at the time when the partnership was operating, the registration with the Society did not continue because Holdsworth and Ellison did not like the Breed Plan promoted by it and the Society had moved from Albury. In any event, it was their intention to register partnership stock when the time was right to sell them. This was something that could be done at any time and the partnership retained records to enable this to take place.
41 On the night of Tuesday, 27 May 2003, Nicholls rang Holdsworth, asking him if he was the owner of the cattle at Framlingham. Holdsworth replied that he was a part owner, the cattle belonging to JA Heath Inland Holdings. Nicholls said that he hated to see poor cattle. There was a discussion as to how many there were, and Holdsworth told him that there were 496. Other matters were discussed, including Holdsworth mentioning Mr Rentsch and also saying that he would ring Nicholls back with the telephone number of Mr Beard. Holdsworth repeated that he told Nicholls that he was a part owner of the cattle.
42 Nicholls told Holdsworth that he had to come to Framlingham, but Holdsworth stated that he could not come immediately because he had to return to Griffith to go to the bank and in order to attend to other matters. He said that he would have to go back up there, but could return on Friday afternoon (30 May). Nicholls also asked him who put the fencing up and said that there was no water. Holdsworth disagreed with this proposition. They then worked out a meeting time on the afternoon of Friday, 30 May. Nicholls wanted Holdsworth and Ellison to meet him at Framlingham. There was no mention of the fact that Nicholls had been shooting cattle that day or that there had been two veterinarians on the property conducting autopsies. Holdsworth did not understand that Nicholls would be at Framlingham the following day, but thought that he was seeing Mr Rentsch and Mr Beard about some matters. Holdsworth arranged to ring Nicholls back in order to give him the phone numbers of Messrs Beard and Rentsch.
43 Holdsworth also rang Mr Rentsch to ask him if he knew anything about someone looking at the cattle, but he knew nothing about this. Mr Rentsch said that there was nothing wrong with the feed or the cattle. He was able to obtain Mr Beard’s number.
44 Holdsworth stated that he does not have numbers stored in his mobile phone memory, does not know how to get messages out of the phone and has never been able so to do. His grandsons make fun of him in that regard. When he rang Nicholls back, there was no ill feeling between them.
45 On Wednesday, 28 May, just before 6pm, Holdsworth rang Mr Rentsch essentially to enquire about the herd at Framlingham and whether Mr Rentsch had or had not seen Nicholls. At this stage Holdsworth was still at Westmere, just a little over an hour from Framlingham, but he subsequently left, driving to Carrathool where he arrived at approximately 2am on Thursday, 29 May. During Wednesday, 28 May, he had not received any phone calls of which he knew from Nicholls.
46 On Thursday, 29 May, the records would indicate that Nicholls rang Holdsworth’s mobile phone at 8.25am. However, Holdsworth did not speak to Nicholls and got no message from him. The records would also indicate that Holdsworth was in Griffith at 11am and made brief calls to Mr Rentsch at 11.40am and approximately 11.50am. The records of Nicholls’ phone would show that he rang Holdsworth’s number at 11.51am, the duration of the call being 25 seconds. The belief is that Holdsworth was on the phone to Mr Rentsch at this time. The records show another very brief call from Holdsworth to Mr Rentsch, being for some 12 seconds at 12.12pm, and a 20 second call to Mr Beard at 12.20pm.
47 Holdsworth said that, on the morning of Thursday, 29 May, he had driven himself and Ellison from Carrathool to Griffith. During one of the calls to Mr Rentsch, he asked if Mr Rentsch had heard from Nicholls. Mr Rentsch replied that he had just “left them down the paddock. They’re chasing your cattle and going to shoot them” – see T203. Holdsworth told Mr Rentsch to go back and get Nicholls to ring him. Mr Rentsch agreed that he would. When he had not heard back from Mr Rentsch, Holdsworth rang Mr Beard in order to see what had transpired. He had not received a call from Nicholls. At 12.20pm, Holdsworth again rang Mr Rentsch. Mr Rentsch said that he had been back to Framlingham, had seen Nicholls and had passed on the message, asking Nicholls to ring Holdsworth. In Griffith, Ellison had an appointment with someone from Rural Lands, whilst Holdsworth had a medical appointment in relation to his shoulder and also an appointment with the bank manager. Afterwards, they went back to Carrathool.
48 At 5pm, Holdsworth rang Nicholls. Nicholls said that he had shot 117 cows belonging to Holdsworth. Holdsworth said that he went “absolutely mad”, because there had been no discussion about anything such as that happening. Nicholls told Holdsworth that, if Holdsworth did not shift the rest of the herd, he would also shoot them. Holdsworth gave evidence that he “did lose it”. He referred to the meeting that was to be held on Friday, telling Nicholls that he was not a man of his word. Subsequently, Holdsworth and Ellison drove through the night to Framlingham, arriving at approximately 6.20am on Friday, 30 May. They found no dead cattle, although noticing some live cattle in the vicinity. Holdsworth also noticed that the cattle yards were in a mess, boggy, and with blood obvious. Prior to that, Holdsworth had not used the cattle yards and knew of no one else who had used them.
49 As part of the yards, there is a race and crush where cattle can walk up to the back of a truck. The race had been extensively used and, in the opinion of Holdsworth, a mat had been placed on it to stop the making of cattle footprints. This is a method used by cattle thieves. There were also tyre marks indicating that a vehicle had backed up to the race.
50 At 8.28am on Friday, 30 May, Holdsworth rang Tesbury to find out if the cattle had gone there, but was told that none of his cattle were in the meatworks. Holdsworth and Ellison then went to the Warrnambool Police Station. Despite being requested so to do, the officer who had taken over the case said that he would not go out to Framlingham, asking Holdsworth to simply come back and tell him how many cattle “he was short”. During all this time, Holdsworth did not hear from Nicholls.
51 Holdsworth and Ellison then set off for Tesbury, which is located near Camperdown. When they were entering Camperdown, Nicholls rang on Holdsworth’s mobile phone. However, because there was a police road block ahead and he was driving, Holdsworth had to put the phone down. He then went into a bank in Camperdown, and when he came out, his phone was again ringing. It was Nicholls, who asked him whether he was going to feed the cattle over the weekend and Holdsworth said that he would. Holdsworth also said that he would try and shift the cattle on the following Wednesday, but Nicholls said that they had to be shifted by Tuesday or he would shoot the rest of them. Holdsworth replied, “Listen, mate, you’ve done enough shooting” – see T211. That ended the phone call.
52 At Tesbury, Holdsworth and Ellison saw Mr John (“Roly”) Rivett. They obtained some paperwork.
53 On Saturday, 31 May, Holdsworth rang Mr Laurie Higgins, a transport operator, in order to get him to come and pick up the cattle that were at Framlingham. That day, Holdsworth and Ellison went back to Framlingham, taking some hay in the back of Holdsworth’s utility so as to feed the cattle that were still there. Ellison also rang her son, David, in order to get him to come and help. The idea was to muster the remaining cattle. Holdsworth went into the forest where he saw cattle tracks and noted that there was still good feed left in the forest. On Sunday, 1 June, some cattle were transported back to Westmere. On Monday, 2 June, Holdsworth was still at Framlingham with Mr David Ellison, ensuring that all the remaining cattle had been found. During this time, Holdsworth saw nothing of Nicholls, Roberts, Dr Callum Irvine (the veterinarian), or any associated persons. The only person that he saw was Mr Matthew Gapes, who arrived with some hay. Holdsworth said that the front paddocks where his cattle had been were quite capable of being grazed. After his cattle had been removed, he noted that there were other cattle in this particular area. He further stated that on Monday, 2 June, he and Mr David Ellison found three more partnership Murray Greys which were then walked a considerable distance to Mr Len Clark’s paddock. They had no difficulty in doing this.
54 The cows from Framlingham remained at Westmere and were still there when Mr Richard Keys, at that time an Animal Health Officer employed by the Victorian Department of Primary Industries, made an unannounced visit at the request of Nicholls. I shall come to the evidence of Mr Keys who was, by consent, an interposed witness during the evidence-in-chief of Holdsworth.
55 In any event, Holdsworth stated that Mr Keys examined all the stock on the property, and these included the cows from Framlingham. Holdsworth further stated that, in the week following the return of the cattle from Framlingham, three or four of them were sold at Warrnambool. Again, Mr Higgins provided the transport. The cattle had to be walked a substantial distance to get to the point where they were collected by Mr Higgins.
56 After the present proceedings were commenced against the RSPCA, charges were laid against Holdsworth and Ellison by Nicholls. The civil proceedings were put to one side. Ultimately, all charges were dismissed with costs. Holdsworth repeated that the four bulls that went to Framlingham were not found in the round-up of stock which was conducted on the weekend after the relevant incidents occurred.
57 Holdsworth was then shown photographs taken by Nicholls and Roberts at Framlingham, these photographs subsequently going into evidence as Exhibit H. There was much reference to them throughout the trial. These photographs had been produced to the Magistrates’ Court at Ballarat. Holdsworth was of the view that the animals in certain photographs should not have been shot. Holdsworth said that some photographs of the ground cover of the open paddocks showed that there was quite a lot of green grass upon which cattle could graze. Photographs of post-mortems performed showed stomachs that looked to be full and definitely had grass in them. All that one calf required was “a bit of a drench” – see T252. Holdsworth repeated, in relation to several of the photographs, that there was absolutely no reason to shoot the animals that could be seen.
58 Holdsworth was also shown photographs of groups of cattle, one group having red paint on them. He stated that none of these cattle should have been shot. Having been shown a photograph of the ramp at the cattle yards, he stated that, on the morning of 30 May, he saw tracks indicating that trucks had been backed up to that ramp. These were not in the position where the trucks from Tesbury had been. He stated that there were a lot of tracks in front of the ramp. Holdsworth also stated that animals suffering from pink eye can be treated by use of a spray. That condition is no justification for shooting an animal.
59 The photographs had on them what could be described as electronic dates indicating when they had been taken. Some photographs showed that the bulls were still there at the yards on 27 and 29 May. Holdsworth stated that other photographs showed cattle with heads down feeding, some showing good, lush grass. Many photographs showed cattle with their ears up, being alert, which is a sign of good health. A further photograph showed the fence, which could be opened up to allow cattle through and which divided the forest from the open paddocks. In the opinion of Holdsworth, there was feed available on each side of that fence. There was much more evidence concerning the photographs along similar lines to those already described, essentially to the effect that there was nothing about the photographed animals’ condition that warranted them being shot. There was also further favourable reference to the amount of feed available, both in the paddocks and in the forest.
60 Holdsworth’s attention was drawn to photograph 36 of Exhibit H, which shows a cow in the race leading to the ramp. He was of the view that a mat could be seen which was of a type that could be used to conceal the fact that cattle had been moved up the ramp.
(ii) Cross-examination
61 In relation to his books containing records of cattle, Holdsworth claimed that these had been at the Ballarat Magistrates’ Court, but that Nicholls had taken them and he, Holdsworth, did not know what subsequently happened to them. I might say that, because of Holdsworth’s quite profound deafness, cross-examination of him was somewhat difficult.
62 Holdsworth stated that it was his understanding, because of evidence given at the Ballarat Magistrates’ Court, that cattle with red marks on their backs photographed in the yards at Framlingham after being herded by the RSPCA did not go to Tesbury. Similarly, the cattle that were rounded up at Framlingham and went back to Westmere also had no red marks on them. Therefore, those with red marks on them must have gone to places unknown. When cross-examined about his theory concerning their disappearance, he stated that they must have gone to Tesbury or somebody must have taken them. Holdsworth repeated that the number of cattle that were delivered to Framlingham was 496, including four bulls.
63 Holdsworth said that he had no answering service on his home phone or mobile phone. As far as he knows, people either get through to him or they do not. Similarly, at least in 2003, he did not leave messages on other people’s phones. In 2003 he did not have a message bank.
64 Holdsworth was then taken at some length through an examination of the photographs in Exhibit H – these being photographs taken by Nicholls and Roberts. Again, summarising this evidence is not easy, but essentially he maintained the position referred to above. Holdsworth himself had not hand fed the cows that were on agistment. He had not paid for any money for hay and did not cause a veterinarian to go to Framlingham between February and 27 May 2003. However, he understood that those from the Framlingham Trust had fed some of the cattle some hay during the period that the animals were there. During that period Holdsworth attended at least once a fortnight, recalling that he had been at Framlingham on 14 May. If Holdsworth did not go there, Ellison would.
65 In relation to the two animals that had been the subject of an autopsy. Holdsworth was aware that it had been said that the animals in question suffered from lung worm, the cause of which is drinking stagnant water. He knew of no such water on the property. He agreed that there appeared to be a dead cow photographed in some reedy water, but could not be entirely certain. He did not agree that it was stagnant water. Holdsworth also referred to faecal samples that had been taken which did not reveal lung worm in his cattle.
66 Holdsworth stated that there was a lot of feed in the forest and some in the paddocks. There was good feed in the open paddocks, but not lots of feed, as in the forest. Whilst cattle follow the feed, they would not necessarily go to the forest, but to where the sweeter feed was.
67 Holdsworth also stated that he had an arrangement with Mr Rentsch concerning handfeeding of the cattle if required, but on his fortnightly visits there was never a time when he thought that the cattle needed feed. No arrangement about paying Mr Rentsch for feed had been organised. Mr Rentsch had his own cattle in the forest (not Murray Greys) and was also keeping an eye on the partnership animals.
68 A video was shown to Mr Holdsworth and to the Court. It was put that there was a very large number of cow pats in the paddock, but Holdsworth stated that this was in a corner where the cattle camped. Holdsworth also stated that, when the cattle arrived in February 2003, the grass was 2½ to 3 inches high in the paddocks. It was down to a bit over half an inch by the time the photographs were taken, the older grass having broken down and the newer grass coming on with rain. There had been rain at the time of one of his visits to Framlingham and the grass came on after that. Some sod-seeding had occurred, performed by Mr Rentsch and people associated with him.
69 Holdsworth said that he first heard from Nicholls at about 8pm, possibly 8.10pm, on 27 May 2003. At the time, he was at his house at Westmere. Holdsworth stated that Nicholls said that he was an RSPCA inspector and asked whether the cattle at Framlingham belonged to Holdsworth. Holdsworth insisted that he told Nicholls that the cattle were owned by JA Heath Inland Holdings, of which he was a part owner. He denied that he had been evasive because he knew that the cattle were in a bad state.
70 On the occasion of this phone call, Holdsworth stated that he spoke to Nicholls for “a good while”, not arguing with the proposition that the call went for some 23 minutes and 57 seconds. He agreed that, immediately after the call from Nicholls, he had rung Mr Rentsch. He then rang Nicholls back and had a further conversation of some 18 minutes. He believes that, in either the first or second call, he gave to Nicholls his mobile telephone number. It would also seem that he passed on the number of Mr Beard. He also agreed that there seemed to be no record of a phone call from Nicholls to Holdsworth on 30 May 2003. After some discussion in the absence of Holdsworth, it became clear that the telephone records placed in evidence, at least insofar as they involved Holdsworth’s mobile phone, reflect outgoing calls only, as they are based upon telephone bills.
71 Holdsworth then insisted that, on 30 May, when in Camperdown, he received a phone call from Nicholls. This was when he and Ellison were on their way to Tesbury.
72 Cross-examination then returned to that earlier conversation of 27 May. Holdsworth denied that Nicholls had told him that, if he could not find the owner of the cattle or if they were not going to be looked after, a number of them would have to be destroyed. He agreed that, in that phone call, he had told Nicholls that, because of appointments and other commitments, he could not attend the following day, as he would be in Griffith. There had been discussion about the fencing, the feed available, where the cattle were running and the like. Holdsworth said that he was asked how many cattle there were, and that he had given Nicholls the number. At this time, Holdsworth was in Westmere and had to drive back to New South Wales the following day. Holdsworth said that Nicholls had told him that he had looked at the cattle, that they were poor cattle and that he did not like to see poor, skinny cattle. He asked who was looking after them, and it was for that reason that Holdsworth obtained the phone number of Mr Beard by ringing Mr Rentsch. He also organised for Mr Rentsch to have a look at the cattle. An arrangement was made. It was more convenient for both parties to meet on the afternoon of Friday, 30 May. Holdsworth had the meeting in Griffith in relation to finance on 29 May. He did not understand there to be any urgency in the situation. He was not told by Nicholls that, unless the owner could be found, the cattle were going to be put down.
73 In relation to the phone calls of the night of 27 May, Holdsworth said that he believed that, in the second phone call, he gave Nicholls his mobile phone number in addition to that of Mr Beard. Holdsworth stated that he had also spoken to Nicholls on the night of Thursday, 29 May from Carrathool. Nicholls, although he was supposed to, did not ring him. He denied that Nicholls had rung him on the morning of 29 May.
74 Holdsworth stated that he had rung Mr Rentsch on Thursday, 29 May, after Mr Rentsch had previously rung him, telling him that Nicholls was chasing the cattle around the paddock and was going to shoot them. Holdsworth asked Mr Rentsch to get Nicholls to ring him. By this time, he was in Griffith.
75 The cross-examination, which jumped back and forth from topic to topic and date to date, then moved back to the phone call from Nicholls to Holdsworth on the afternoon of Friday, 30 May, this being received when Holdsworth was in Camperdown. Holdsworth had terminated the call because of the police on the road and had gone into the bank at Camperdown in order to get some money. By this time, he and Ellison had already seen the cattle remaining at Framlingham. They were alive and well, but a lot had disappeared. Photographs at the site were taken by Ellison during both visits to Framlingham on 30 May. Ultimately, 183 animals, 90 cows and 93 weaners, being the remaining herd, were rounded up.
76 Certain evidence to be given by Nicholls was put to Holdsworth. He disagreed with the proposition that many of the cattle appeared to be in very poor condition. Holdsworth asserted that the pasture was green, but was edible for cattle. Holdsworth would not argue with the proposition that some dead cows, which had partnership ear tags on them, may have been seen by Nicholls on 25 May. However, Holdsworth stated that there were no dead beasts there when he had last visited. He denied that there had been any lack of nourishment. He stated that, if a cow was down and had been thrashing around, the proper thing to do was to try to get her up and find out what was wrong with her. The other thing to do with such a cow would be to try and find the owner. If someone could not find the owner and could not get the animal up, the appropriate thing might be to shoot such animal.
77 Holdsworth agreed that it was appropriate for a veterinarian to be contacted. Holdsworth also referred to the fact that “we” had been told that the cattle which went to Tesbury in fact belonged to Geoff Clark (who gave evidence subsequently). He was then cross-examined about a conversation which he had with Mr Murray Moloney (who also was to give evidence subsequently). Mr Moloney had told him that the cattle which were shot were in good order and that everyone had been told to take in their fridges to get some good meat for themselves. It should be said that Tesbury dealt in pet food, as opposed to meat for human consumption.
78 Holdsworth stated that, on his visit 14 days before the relevant incidents, the cattle all looked well and in better condition than they appeared to be in relation to a particular photograph (which seems to have been photograph 27 of Exhibit H, or possibly photograph 4 – see T555 and T556).
79 There was considerable cross-examination of Holdsworth concerning the tagging system and the numbers used. Holdsworth seemed to me to become quite confused about this. I will say at this stage that I am not persuaded that some person or persons unknown engaged in some re-tagging of certain animals. Holdsworth may well have some genuinely held belief in this regard, but the state of the evidence does not persuade me that this in fact occurred. Apart from the fact that Holdsworth tended to become confused, needing breaks in relation to the giving of evidence, he stated freely that he did not handle tags during the marking process.
80 Holdsworth was then taken to another set of photographs (Exhibit X). He identified some cattle that had been there when they arrived on Friday, 30 May. There were no red marks on the cattle that had been left behind. Again, it is difficult to summarise evidence concerning specific photographs. One of these photographs, the bottom one on page 6, revealed that sod-seeding had taken place. Holdsworth agreed, effectively, that the sod-seeding had been done a short time before the cattle left and that the grass had not grown from it. When the B-doubles arrived, the ramp at the back was such a distance above the ground that some of the cattle had to jump off. These cattle had to be put down because of their injuries and not because of their poor condition. On the day that the cattle arrived, Holdsworth was effectively there all night. He had had to go back to obtain a gun to put down the injured cattle. The carcasses of those animals were dragged into the forest, attached by a chain to his utility. He stated that he tried to ring Tesbury to come and pick them up, but they did not do that. After discussion with Mr Rentsch, he dragged the carcasses into the forest. He also stated that there were carcasses of other cattle and other breeds in the forest. There were also carcasses of other cattle in the paddock area. He had seen these when doing the fencing before his cattle arrived. The plaintiff stated that on Friday, 30 May, when he arrived with Ellison, he did not see any carcasses in the paddocks.
81 Holdsworth agreed that on Thursday, 29 May, at approximately 4pm, he had rung Directory Assistance, and shortly after that had rung Nicholls. He agreed that the records indicated that he had rung Nicholls from Carrathool at approximately 5pm.
82 On Friday, 30 May, Holdsworth did not actually meet Nicholls, but spoke to him twice on the phone as described. Holdsworth also stated that he had brought some hay to the cattle. This was brought from his home at Westmere. He agreed that he had probably said to Nicholls that there was a lot of feed in the bush on Framlingham. He also said to Nicholls that there was a number of cows missing. He denied that he had said that it was the responsibility of the Framlingham Aboriginal community and Mr Beard to feed the cattle. Indeed, he denied that any such responsibility existed. What he had said to Mr Beard was that he, Holdsworth, should be informed if feed had run out or anything of that nature had occurred. He told Nicholls that he would feed the cattle over the weekend.
83 The cattle could have continued to agist at Framlingham until spring and beyond but, assuming that there had been rain in New South Wales, the plan was to take the cattle there. He had planned to pay some money to those who ran Framlingham on account of certain posts and wire, but that had never been worked out. I might say that any agreement in relation to agistment fees, fencing and the like, was difficult to work out from Holdsworth’s evidence, although there does seem to have been an arrangement whereby Mr Beard was to get six cattle at the end of the agistment period.
84 Ultimately, Holdsworth again described Nicholls as not being a man of his word, having given such word on the telephone – see T635.
(iii) Re-examination
85 In re-examination, Holdsworth confirmed that Ellison also used his mobile phone at the relevant time, including calls to family members such as her son, David. Holdsworth usually took his mobile phone in the car with him. Calls to people such as Mr Rentsch and Mr Beard were more likely to have been made by Holdsworth. Prior to the intervention of the RSPCA, there were a number of calls back and forth between Mr Rentsch and Holdsworth, these being most likely in relation to whether everything was alright and as to how the cattle were going. Contact was made at least once a week. Prior to the intervention of the RSPCA, neither Mr Rentsch or Mr Beard, nor Mr Geoff Clark or Mr Len Clark, contacted Holdsworth suggesting that feed was getting low, supplementary feed was needed, or the like.
86 In relation to the video shown, the area portrayed was in the top north-eastern corner of the property and did not show the lengthy cleared area to the right-hand side of the drive. There was a large triangular paddock running over to the Hopkins Highway which does not appear to be shown on the video. The cattle had access to such areas. There had been troughs, apart from the brand new plastic ones, purchased and put in the forest area.
87 In relation to the telephone conversation with Nicholls on the Tuesday night, Holdsworth said that he was not being evasive with Nicholls and had nothing of concern which he might wish to hide from him. He repeated that he did not regard Nicholls as a man of his word because, having made arrangements, he did not keep them.
88 Holdsworth was then re-examined in relation to sod-seeding. He identified marks in a paddock in a photograph taken on 30 May as appearing to be lines taken as part of the sod-seeding process. He also identified areas of grass as being of the type seen throughout the forest and to which the cattle had access. He stated that, at no time, was he reluctant to speak to Nicholls. Holdsworth confirmed that, essentially, the partnership herd was confined to the northern end of the Framlingham estate and to the forest. When Holdsworth and Ellison arrived on 30 May, there were signs, shown in one of the photographs, that the cattle had been going backwards and forwards from the forest to the northern paddocks.
89 The last three cattle that were found by Holdsworth and Ellison, when rounding up the remainder of the herd, were taken along a track through the forest to Mr Len Clark’s paddocks at the southern end. They remained there for a while.
90 Holdsworth said that the only time that he knew that there had been any complaint about his cattle was when Nicholls rang him. Otherwise, he had not heard of any complaints. To Holdsworth, Nicholls did not identify who had complained to him. Holdsworth knew nothing about cattle carcasses being burnt in the bush and saw no signs of this. On 30 May he did not see any carcasses on the property. He had also seen no carcasses on the video that was shown. When he had been there on 14 May, he did not see any carcasses and had no reason to believe that, between 14 May and 27 May, cattle were dying. If cattle had been dying between 14 and 27 May, he would have been informed. If Holdsworth had been told that supplementary feed was required, he had a lot of it at the Westmere property.
91 I then directed some questions to Holdsworth in an attempt to confirm the number of cattle involved and where they subsequently went, this being an attempt to keep a tally or inventory of the cattle. Holdsworth stated that 497 cattle, being 493 cows and calves and four bulls, went to Framlingham. One hundred and eighty-three, being 90 cows and 93 weaners, returned. A further 50 calves, which Holdsworth did not think had been included in those figures, had been born. No cattle, shown in the photographs with red marks on them, came back to Westmere, and, bearing in mind the evidence given in the Magistrates’ Court at Ballarat, Holdsworth believed that none of them had gone to Tesbury. The missing or slaughtered livestock included four bulls, calves, cows and weaners.
92 Holdsworth was later recalled in relation to estimation of cattle numbers. His evidence was that 496 cattle, including four bulls, were taken to Framlingham and that an estimated 50 calves were born there, making a total of 546. Some cattle were injured coming off the trucks of Mr Congram, and these were later towed by Mr Rentsch into the bush. Cattle put down by Nicholls or pursuant to his instructions numbered 188. 183 cattle were returned to Westmere. That leaves 153 cattle missing. He was again adamant that no cattle with red marks on them were taken back to Westmere. In cross-examination concerning this, Holdsworth would not agree that the cattle in photograph 30 (with red marks on them) looked to be in much worse condition than those in photograph 29 (which had no red marks). The difference was that photograph 30 appeared to have been taken from above.
(b) Ms Heather Ellison
(i) Evidence-in-chief
93 I should say at the outset that, whilst Holdsworth is quite deaf, Ellison seems to be even more deaf. Both evidence-in-chief and cross-examination of her were difficult and, at times, confusing. In addition, Ellison seemed at times to me to exaggerate and to use what was described by Mr Langslow as “flowery language”. She gave the impression of having something of an emotional attachment to the cause of action. I do not say that that her evidence is to be rejected in its entirety. Rather, I am of the opinion that her evidence was less reliable than that of Holdsworth, and particularly than that of certain other witnesses. Apart from the problems caused by her deafness, she did appear to be involved emotionally in the case.
94 Whilst Ellison was not the next witness to give evidence, because she is the other plaintiff it seems to me to be logical to deal with her evidence now before turning to that of other witnesses
95 Ellison has been in cattle and livestock since childhood, having been born and raised in New Zealand. She came to Australia in 1965 and almost immediately became involved with Murray Greys. She originally worked with a man called Mr Dick Rogers, who started training her and sent her away on a course. Her initial training was to do with the showing of cattle, preparation, feeding, grooming, and the like. Essentially it was getting stud cattle ready for a royal or country show. This also involved selecting the right cattle. She was also involved in the foundation of the East Gippsland Murray Grey Society, Mr Rogers having a farm there. She worked with Mr Rogers for some 18 years until he died. Ellison then became the owner of a herd of Murray Grey cattle on her own account, her herd including two bulls bred on what is known as the Cloverdale line. These were particularly good as stud bulls and were so registered with the Murray Grey Society. She then had show success with her line of cattle. Without going through the precise details, it can be said that Ellison appears to be particularly well qualified in relation to stud Murray Grey cattle and had been very successful in that regard prior to her going into partnership with Holdsworth.
96 Ellison got to know Holdsworth when purchasing high quality oats from him. She discovered that Holdsworth and his wife, who has since died, had Murray Grey cattle. After the death of Mrs Holdsworth, discussions were held concerning combining Ellison’s herd and that of Holdsworth and in particular that part of his herd which was in New South Wales. This turned out to be a perfect combination of herds, each tracing back to the Cloverdale line. Ultimately the partnership, JA Heath Inland Holdings, was formed. Ellison was also a member of the Murray Grey Society which, at that time, was based in Albury.
97 Ellison regarded Holdsworth as having a good eye and being very astute in relation to cattle. Ellison said that Holdsworth and his wife had enjoyed considerable success in Murray Grey carcass competitions.
98 Ultimately Ellison and Holdsworth purchased the property at Carrathool. The herd at Carrathool had the specialised families in it with input from both Ellison and Holdsworth. She described the cattle as being her “pride and joy” – see T 1164. Ellison was taken to photographs showing how the land looked when the severe drought commencing in 2000 or 2001 was affecting it and also photographs of the cattle on the stock routes or “long paddock”. Care had to be taken that the herd of Holdsworth and Ellison did not mix with other cattle. Whilst the herd was on the “long paddock”, some stock was sold to provide income, but the very top breeders were retained.
99 She pointed out that the “Piney Park” property at Corowa was purchased in order to save the herd – see T1175. She also stated that lightness of condition does not make any difference to the breeding. Mobile yards were also built and set up. All of this was done because the breeders were “very, very valuable to us” – see T1177.
100 Ultimately, the canola crop at “Piney Park” was eaten and the partnership had to get in lots of fodder, molasses, and the like. Food was very scarce.
101 By the end of 2002 and into 2003 weaners and some heifers had been drafted off, some heifers going to Carrathool and some to Bairnsdale. What was left were essentially cows with sucking calves. By this stage the cattle were lighter in condition, but were in good health. However, feed at “Piney Park” also ran out.
102 Ellison described the Framlingham proposal as “a godsend”. She and Holdsworth went down to Framlingham and met with Mr Beard and Mr Rentsch. It was the first green grass that they had seen for many months. Agistment arrangements were immediately discussed and Ellison took some notes. Essentially the agreement which she recorded was to the effect that the Murray Grey cattle could graze on the Framlingham Aboriginal Trust land from 25 February 2003 to 25 February 2004. The stock could be withdrawn prior to the expiry date. Mr Beard promised to inspect the grazing cattle, check water troughs and the like and there was an agreement that he keep six young calves. The following day Holdsworth arranged for two large black troughs to be put in, together with the necessary pipes. The electric fencing was purchased. Ellison returned to Corowa.
103 At Corowa, Ellison organised for the transporting of the cattle and the assessment of them. Calves that could survive on their own and animals that were not fit for travelling or which the partnership did not want to go down to Framlingham were drafted off.
104 Ultimately, the animals going to Framlingham were loaded onto the trucks of Mr Congram. By this stage the partnership had been out of green feed and crop for some time. The animals were light, but were fit to travel. The drafting took some time because the partnership wanted to keep the stock that was very valuable to them in relation to blood lines. It was essential that they survive, and Framlingham was the place for this.
105 Between February and the end of May, Ellison went to Framlingham on quite a few occasions. The last time that she went to Framlingham was about a fortnight before the end of May. She noticed that there were about 50 newborn calves “bouncing around” and that the cattle were doing well.
106 On that visit, Ellison went for a walk around the property, including to the bush around the yards. The cattle were doing well, there were many newborn calves and no cow appeared to be in trouble. The calves did not appear to be showing any lack of magnesium, minerals or the like and there were no calves with bad front legs. Front legs bowing out is a sign of lack of nutrition from the mother, but there were none with this problem in mid-May.
107 Holdsworth kept in touch with Mr Rentsch. Ellison said that Holdsworth was very good in this regard and is very diligent. In the cleared area of the property at Framlingham, the grass was short but the cows enjoyed it.
108 In the last week of May, Ellison was at Carrathool while Holdsworth was at Westmere doing cropping. He then came up to Carrathool in order to go to Griffith on Thursday, 29 May. He had made appointments with a rural councillor and also with the bank. He also had a bad shoulder at the time. On that Thursday he made a number of phone calls during the day. He was on the phone to Mr Rentsch. Holdsworth was on the mobile phone a lot, and at one stage Mr Rentsch had told him that cattle were being shot.
109 They returned to Carrathool. Holdsworth became upset. Mr Rentsch had given Nicholls Holdsworth’s phone numbers, but Nicholls had not rung back. Ultimately Nicholls did ring, and apparently told Holdsworth that he had shot 100 stock. Holdsworth virtually exploded and it was all very upsetting. On the night that he came back from cropping at Westmere, Holdsworth had told Ellison that he had an appointment with “the RSPCA man” on the Friday.
110 Ultimately, Holdsworth and Ellison packed and left Carrathool just before midnight. They drove through the night to Framlingham, where they arrived at approximately 6.40am on the Friday. They went to the cattle yards. Ellison took a number of photographs. Ellison noticed some cows or calves on the left hand side of the driveway, but otherwise wondered where all the cattle were. Holdsworth went into the bush to have a look for them. He ultimately returned, and both of them had a look around the yards. The yards were messy, and blood could be seen. They were at Framlingham for approximately 30 to 45 minutes and then drove to Warrnambool to the police station. They alleged that cattle had been shot and stolen, requesting the police to come to Framlingham and have a look at what had happened. This did not occur. Ellison and Holdsworth returned to Framlingham. After Holdsworth had a phone call from his son, Stephen, they set off for Tesbury. When they were in the midst of Camperdown, Nicholls rang on Holdsworth’s mobile phone. They stopped in Camperdown so that Holdsworth could go to a bank. They then went on to Tesbury, where they had a conversation with some people in the office. Ellison accused them of stealing her cattle. Whilst there, Ellison obtained photocopies of business records. She subsequently made enquiries of various people and wrote letters, including letters of complaint to the police.
111 From Tesbury, Ellison and Holdsworth returned to Westmere. On the following day, they attended again at Framlingham. Animals were removed from there and taken to Westmere. No bulls were found to be taken back to Westmere. The bulls that had been taken to Framlingham were the partnership’s sole breeding bulls. Ellison stated that all the good breeders and top weaners were gone. What they had been left with were dry cows and calves that could not be marketed.
112 She referred to the fact that the photographs taken by her at Framlingham showed fresh truck marks into the yards and to the loading ramp. She mentioned that only a few animals were found by them in the bush. Some cows came back from the bush looking for their calves. Ellison said that she took photos because of the need to do it. One picture was of an area inside the forest which showed good roughage and also good feed underneath. She emphasised the importance of roughage during a drought.
(ii) Cross-examination
113 Ellison confirmed that no heifers went to Framlingham. Some steer calves went there. Two hundred and seventy cows went, but Ellison was not able to give figures in relation to the number that had calves at foot. At the time there was no one at Corowa who could have looked after the four bulls and hand feed them. Further, there was no hay available within the proximity of Corowa or Carrathool, as this had been exhausted.
114 There was then considerable cross-examination concerning the marking or ear tagging of cattle. At times this evidence was hard to follow, a situation not assisted by Ellison’s quite profound deafness.
115 When looking at photograph 10 of Exhibit H, Ellison identified the animal as a bull. She referred to it as having lost “so much weight”, but said that all their cattle had lost weight during the drought, but were picking up at Framlingham. She thought that the bull in the photograph was fine.
116 Ellison stated that, when she arrived at Framlingham on 30 May, she did not see any dead cattle in the paddocks or any old carcasses. She did not go right through the bush, but only looked around the yards and the paddocks in that area.
117 Ellison said that the ramp, as shown in photograph 36 of Exhibit H, was not as it was when she saw it upon arrival in the early hours of 30 May 2003. The cover of the ramp was totally different. Her suspicion was that there had been come cover on the ramp which had subsequently been taken off. Ellison’s conclusion was that all of this – the clean ramp, a missing piece of timber and the like – “just did not add up” – see T1329.
118 There were also massive tyre tracks in and around the ramp that would have been from very good sized trucks. There was evidence of the trucks having backed up to the loading ramp.. The bulls and top breeders were gone.
119 Ellison said that the cow depicted in photograph 36 of Exhibit H was in light condition, and would attract a score of about 1. The cow in photograph 37 was a little better. The grass shown in photograph 38 was short, but was fresh and nourishing. Ellison also pointed out that the photographs, being those taken on behalf of the RSPCA, were basically all taken out in the open paddocks and not in the forest where the roughage feed was. She stated that the cows shown in photograph 54 needed medical attention, but not to be shot. To the knowledge of Ellison, a veterinarian had not been on the property whilst the cattle had been at Framlingham.
120 Referring to the June arrangement for the record of interview, Ellison thought that, if Holdsworth had gone to the police station for an appointment, he would keep it and, if the person who made the appointment did not turn up, he would still stay there “until it was closing time” – see T1382. She understood that he was going there to meet Nicholls. She reiterated that the four bulls that went to Framlingham essentially came from Corowa, where the food had run out. She also said that the four bulls that went to Framlingham were from Corowa and had been on the “long paddock”.
121 Ellison gave evidence concerning a photograph of an old carcass which she had found on a visit to Framlingham. On its face, this was not a particularly important issue, but her evidence in relation to it was decidedly shaky and unconvincing. She also had difficulty in finding the photograph which she said showed truck marks going back to the ramp. I might add that a considerable part of Ellison’s evidence was essentially more to do with issues surrounding damages, whereas Holdworth’s evidence had been directed more towards liability and, to a lesser extent, cattle numbers.
122 Ellison agreed that Mr Rentsch and Senator Bill Heffernan had some cattle on the property at the time. However, she never saw other cattle mixed in with partnership cattle.
123 Whilst she understood that some cattle may have gone live to Tesbury, she had no idea where the others had gone. The RSPCA was in charge. She confirmed that the only day on which she had gone to the Warrnambool Police Station was Friday, 30 May.
(iii) Re-examination
124 The re-examination dealt principally with matters more related to damages.
(c) Mr Richard Keys
(i)Evidence-in-Chief
125 Mr Keys is now semi-retired, but at the relevant time was an Animal Health Officer, employed by the Victorian Department of Primary Industries, and was based at Ararat. Mr Keys adopted an affidavit of 28 June 2011 as being true and correct. That affidavit describes in general terms how Mr Keys went to the Westmere property of Holdsworth at the request of Nicholls. He went unannounced and toured Holdsworth’s property and adjoining properties to look at all of Holdsworth’s cattle. As a result, he reported that the cattle were in reasonable condition and that no further inspection was necessary. The affidavit of Mr Keys is Exhibit F.
(ii)Cross-examination
126 In cross-examination, Mr Keys agreed that Nicholls had asked him to have a look at a property and examine some Murray Grey cattle, that request being on 6 June 2003. Mr Keys stated that, whilst he had some difficulty recalling events because of the passage of time, he thought that the cattle that he was to look at were in fact separate from those that had been involved in the incident at Framlingham. Whilst he did not put that in the memorandum that formed the basis of his affidavit, he believed that to be the case. This may be a belief which he formed, and he was a little uncertain about it, but, in the circumstances, I prefer and accept the evidence of Holdsworth that in fact Mr Keys inspected all cattle on the property, including those that had come from Framlingham. I might say that Mr Keys again emphasised that his belief that the cattle which he saw did not include those from Framlingham was something to which he could not swear – see T92 and T93. Indeed, while saying that he had not inspected cattle from Framlingham to his knowledge, he may have so inspected. The condition of the cattle which he saw was satisfactory. As stated, other evidence, including that of Holdsworth, would suggest that the cattle inspected by Mr Keys did in fact include cattle that had been at Framlingham.
127 Mr Keys also described the method of scoring cattle on a scale between 1 and 5, where 5 is very fat and 1 is very lean. If a score of 0 is given, it would mean that the animal was emaciated and moribund, meaning close to death. Of the cattle he inspected, some were down to a score 1 condition, but none were in such a condition that he was worried about them.
128 Mr Keys was shown some photographs. The cow in photograph 36 of Exhibit H was one that he would score as 0, although he stated that he may have had to examine the animal physically rather than looking at a photograph. If he could see the cow walking or running around, that would enable him to give a more critical diagnosis. He again emphasised his reluctance to express his opinion, on the basis of a photograph, as to whether leaving a cow in a condition of that shown in photograph 36 would be an act of cruelty. In the view of Mr Keys, animals that were too weak to stand and walk, unless under fairly intensive attention, should be destroyed. He also expressed the view that the grass shown in a particular photograph might be of good quality, but he would be concerned about the quantity of it. A large number of acres, perhaps in excess of 1,000, would be needed for a herd of 400 cattle if the level of grass shown in the photograph was all that was available.
129 Mr Keys would not agree with the proposition that running four or five bulls with a herd of cows, unsupervised, was a recipe for disaster. However, livestock should also be supervised, depending upon the circumstances. He also modified his opinion somewhat concerning the amount of feed available, again emphasising that he was reluctant to comment on individual photographs – see T303.
130 Mr Keys stated that he did not know how good or bad things had been at Warrnambool in terms of drought in autumn, 2003. Leaving to one side other factors, and if the condition of the cows seen in photograph 36 was due to a lack of feed, he thought it unlikely that such a cow could be restored, in the space of a few weeks, to the condition of the cattle which he inspected at Westmere. Mr Keys stated that cattle should not be left unassessed for any length of time, but such assessment need not necessarily be coming from a veterinary surgeon. Someone who has knowledge of cattle sufficient to identify a problem would be enough. Animals in a poor to very poor condition need intensive surveillance to prevent further issues developing. The feed shown in the paddocks in some photographs was not good feed in that the quantity appeared to be a concern.
(iii)Re-examination
131 In re-examination, Mr Keys described one of the cows photographed, and to which his attention had previously been drawn, as being in a borderline situation. When it was put to the witness that there was also available grass in the forest area, he pointed out that he had only been answering questions on the basis of the grass in the paddocks shown in the photographs. He also stated that there may have been a lot of feed in the paddocks when the cattle were moved in during February.
132 Mr Keys further agreed that, on his inspection tour at Westmere, he was, to his knowledge, shown all the cattle on the property of Holdsworth and the adjoining property. He stated that he had gone around an extensive part of the property and was satisfied, within reason, that he had seen all or “pretty much all” of the cattle of Mr Holdsworth – see T327. If there had been some other stock nearby in a paddock that he did not see, it would be unlikely that they were in a condition significantly different from those that he did see. He also stated that he was still prepared to stand by the report which he had given. When shown a photograph of part of the herd (photograph 31 of Exhibit H) Mr Keys scored one of the cows at no more than 1 or 2, and also thought that an animal which he thought was a bull appeared to be in very poor condition. However, the others had been mustered, presumably walking of their own accord, and this would indicate to Mr Keys that, unless there was no other option, such cattle would not normally be destroyed. The cattle shown in photograph 39 of Exhibit H looked to be in a similar condition. Mr Keys explained that score 1 did not mean that an animal urgently needed the care of a veterinarian, but might need a good feed, good husbandry and frequent surveillance. However, that did not mean that such cattle required euthanising, particularly when they were able to move into a yard. The only animals that would require euthanising are normally those that are cast, moribund or suffering unnecessarily.
133 In answer to a question of mine, Mr Keys said that he had formed the belief that these were cattle other than those that had been at Framlingham because of the nature of the request for an inspection made by Nicholls. He was aware that there had been some form of problem at Framlingham, but was probably not aware of further details concerning it. He thought that this was more of a routine inspection caused by the fact that the cattle were owned by the same person as those that had been at Framlingham. It would be fair to say that – and this is no criticism of Mr Keys whose evidence I found to be quite credible – Mr Keys’ somewhat tentative belief that he may have seen only cattle that had not been at Framlingham did not have a particularly solid basis. Clearly, evidence that he was in fact shown cattle, which included at least some that had been at Framlingham, would not be shaken solely because of his far from certain belief. Before departing, Mr Keys volunteered that he was very reluctant to talk about or make significant assessments from photographs. He described it as being very much inferior to actually being there and seeing the animals, “the big picture”, animals moving, and the like – see T334. This statement, clearly designed to qualify or limit the weight to be attached to opinions expressed by Mr Keys on the basis of photographs, is one which I accept.
(d) Mr Craig Congram
(i) Evidence-in-chief
134 Mr Congram operates a livestock transport business, this being based in Finlay in New South Wales. He has undertaken work for Ellison and Holdsworth for some 15 or 18 years or more, and has been in the livestock carrying business for 33 years. He and his enterprise are Truckcare, accredited livestock carriers (such accreditation being in respect of animal welfare and by the RSPCA). He and his employees always assess the capacity of stock to be able to endure a particular proposed trip. Those that are not fit to travel are put to one side.
135 Mr Congram identified the billing invoice for the stock that was transported from Corowa to Warrnambool on 26 and 27 February 2003. This invoice showed that the stock carried were 271 cows, 222 calves and four bulls (497 cattle). This involved five B-double loads.
136 Before the cattle were loaded, they were drafted in order to take out any weak cattle that might not have been fit to be transported for the required distance. Apart from the cattle that were to go to Framlingham, Mr Congram believed that heifers between the age of approximately six and 14 months that had been running with the mob of cattle were returned to Carrathool. Thus, from Corowa, younger heifers went to Carrathool, cows and calves that were fit to travel went to Framlingham, and old cows that were not fit to travel went to the meatworks (it is to be remembered that four bulls were also transported to Framlingham).
137 The trip from Corowa to Framlingham took something in the order of six to eight hours, with the B-doubles stopping approximately every hour in order to check the condition of the cattle. It had been a bad season in this regard because of the drought. Mr Congram regarded the cattle that were taken to Framlingham as being light, but fit to travel.
138 Mr Congram’s recollection, as opposed to that of Holdsworth, was that at Framlingham ramps were dropped and the cattle walked off quietly. His impression of Framlingham was that it was green and had some feed available, something that he had not seen for a while. He also went for a drive around Framlingham with Holdsworth.
139 Mr Congram also said that the condition of the cattle as they got off the truck was “quite okay” – see T360. They could get off without assistance. He again referred to Framlingham as being an “oasis” compared with what he had been seeing.
707 What was bailed to the RSPCA could be the number of cows that were on the Framlingham property when it entered upon it and, arguably, took control of it. The alternative approach could be to ascertain the number of cows of which it took control. In other words, when Nicholls and his party entered the property and commenced operations, was the RSPCA, via Nicholls, the bailee of all the cattle on the property, remembering that there were 3,000 acres of forest, or only of the cattle that were put down around the property and those that were mustered and assessed?
708 For the moment, let us assume that the former is the situation, given that Nicholls and his party entered the property, even if there seems to be some considerable doubt as to whether they were aware that the paddocks on the western side of the driveway formed part of the acreage open to the partnership herd. At least some driving around the forest area was done, and Roberts made some entry into it, even if large tracts of it were not explored. Thus, let us assume that there was bailment of all the cattle that were on the property as at 27 May 2003.
709 The question that still remains is how many animals were there as at that day? Mr Congram delivered 497, but that was on 26 and 27 February 2003, three months earlier. Holdsworth visited Framlingham virtually continuously for a fortnight. He then visited on a comparatively regular basis thereafter, that being at least once a fortnight and, at times, possibly weekly. Ellison had also visited on occasions. It would seem that Holdsworth’s last visit to Framlingham prior to the arrival of Nicholls was on 14 May. That seems to have been at about the time of Ellison’s last visit and when she noticed some 50 newborn calves, bouncing around. I appreciate that Mr Rentsch and Mr Beard were also around the place, with Mr Rentsch in particular generally “keeping an eye” on the cattle. Of course, there is no suggestion that he was there all the time, and his “keeping an eye” on them seems to have been somewhat incidental to his doing the same thing in relation to some cattle of his own and to the herd of his brother-in-law.
710 I can find no evidence that any head count, specific or approximate, was carried out between the arrival of the herd in February and the intervention by Nicholls on 27 May. The size of the herd would have been decreased by approximately half a dozen or more animals that Holdsworth put down after the difficulties with unloading and by one that he subsequently shot. It would also have been decreased by the approximate six or eight dead cows that were found by Mr Rentsch in March, unless these were the same ones that were put down by Holdsworth. There were also the animals found dead by Nicholls and Roberts when they arrived on 25 May. However, the size of the herd would have been bolstered by the arrival of the calves, estimated by Ellison to be 50 in number, although she was prone to some exaggeration. It is possible to work out an approximate number of live cattle that ought to have been at Framlingham as at 25 May.
711 Let us assume for the moment that the deaths and births almost balance and say that the number of animals that ought to have been there was 500. However, that is not to say that 500 animals were still there on 27 May. Apart from the fact that no specific head count was carried out between 27 February and 27 May, in the voluminous evidence I cannot find even a general statement by Holdsworth, Ellison or Mr Rentsch that roughly the same number of cattle that should have been there appeared to be there during that period.
712 Ultimately, 183 animals returned to Westmere, with a further three being left behind on the property of Mr Len Clarke. According to the Tesbury records, 139 carcasses came in on 28 and 29 May. Incidentally, only three of these seem to have been calves. Assuming that those carcasses included two bulls, even if they are not recorded as such, this means that a total of 322 animals can be accounted for and I accept the evidence of Holdsworth and Mr David Ellison that no other animals remained at Framlingham. If all of this be so, from our figure of the number that ought to have been on the property, there is a shortfall of some 178.
713 Nicholls and those assisting him have various estimates of the number of cattle that were mustered in the yards. Ms Heck believed that some 200 were brought in, but the party had not looked in the forest. She believed that approximately 117 were shot. Roberts thought that the total number was either 260 or 264. He thought that approximately 100 had been shot. These figures do not take the basic problem much further, even allowing for the 19 carcasses that were taken to Tesbury on 28 May. There is still a shortfall. The bottom line is that, however it is looked at, there is no accounting for something in the order of 170 cattle.
714 In my opinion, there is simply no persuasive evidence as to how and when those cattle disappeared. As stated, there is no evidence of any head count between late February and late May of 2003. Even if there was evidence, which there is not, of the number of cattle at Framlingham as at the time of the last visit of Holdsworth and Ellison, this being apparently between 11 and 14 days prior to the intervention by Nicholls, the fact remains that the cattle could have gone missing during that period.
715 I appreciate the arguments advanced by Mr Langslow to the effect that, had such a number of cattle escaped, this would have been notorious. One might expect that neighbours, road users and others would be well-aware of it. It may well be that the animals were stolen. The question remains, when? If they were stolen, given the absence of anything resembling even approximate head counts, that could have occurred at any time between, say, a fortnight after their arrival (Holdsworth attending regularly during that period) and the intervention by Nicholls. Any theft could have occurred during the approximate fortnight between the last visit of Holdsworth and Ellison and the intervention by Nicholls. Of course, any theft could also have occurred in the short period between the intervention by Nicholls and the arrival of Holdsworth and Ellison. To my mind, there is simply no evidence that makes one of these scenarios more probable than the others.
716 Mr Langslow advanced arguments to the effect that, on the balance of probabilities, no cattle had been removed from Framlingham prior to Nicholls assuming control of the herd. However, I do not find these arguments persuasive. One of them was that the photographs showed that, before the yards had been heavily trafficked by cattle moving around in them, there had been green grass present. This allegedly showed that the yards had not been used for a considerable period prior to the herd being placed in there. I do not accept this. The fact that green grass is shown around the edge of the yards does not take matters further. Photographs show the green grass around the edges, with the herd in the yards, but congregating largely in the centre. The area in the centre of the yard photographed may indeed be chopped up and boggy, but that is where the cows have gathered. Cows may have gathered similarly in the preceding days, weeks or months. Whilst quite an ingenious argument, it is to me several steps too far to say that this represents some evidence that it was a lengthy period prior to the day in question that the yards were last used.
717 I am similarly not persuaded by evidence allegedly demonstrating that trucks had backed up to the ramp in the day or days before Holdsworth and Ellison inspected the area on 30 May. Frankly, I found Ellison’s evidence concerning what she had seen and the photographs allegedly taken by her on 30 May to be confusing. Her evidence was of seeing tyre tracks, some of which were abnormal and from “very good sized trucks”, with a lot of truck marks to the ramp. There are also some photographs taken on the following weekend. Again, I was somewhat confused by her evidence in relation to those photographs. What is clear from the photographs is that there are a lot of tyre tracks and that the ground is chopped up somewhat. Of course, on both Wednesday 28 and particularly on Thursday 29, trucks were coming and going. The Tesbury trucks collected five loads over the two days. There are various theories about a mat being put down on the ramp and subsequently removed, thus explaining the clean condition that it was in on the morning of 30 May. Of course, another possible explanation is that the ramp was simply not used at any time, as the cattle were processed through the crush and either shot there or released into a paddock. In the photographs, the ramp would appear to have been blocked off, which was logical if the cattle were to be effectively imprisoned in the crush, which leads to the ramp. There was also a theory that, in photograph 36 of Exhibit H, some sort of mat can be seen on the ramp. Apart from the fact that it is very difficult to detect whether what is seen is a mat or simply the concrete of the ramp, it scarcely makes sense that prospective cow thieves or conspirators would place a mat on the ramp for all to see, particularly when photographs were being taken. I might add that one of the photographs referred to by Ellison did not seem to be able to be located.
718 The other argument of Mr Langslow, based upon the proposition that word would have been out that there was some abandoned cattle in the yards and miscreants would have acted accordingly, is entirely speculative. Whenever it occurred, the movement of in excess of 170 animals would have been a large undertaking. If it was done at night, it is hard to see how it would not have involved trucks, headlights and the like. The fact that photograph 41 of Exhibit H shows a cow with a red mark on its back apparently in a yard and apparently in the dark or semi-dark takes matters no further. There was no challenge to the proposition that this was one of the photographs taken by Nicholls. Whether it was in fact taken in the dark is not clear. I am not sure exactly what any argument based upon this photograph is intended to establish. Further, according to witnesses, such as Mr Moloney, the rumour that was around, was that the cattle belonged to Mr Geoff Clark and not that they were abandoned.
719 Holdsworth and Ellison gave evidence that there were tyre marks from trucks in the vicinity of the ramp. Even if that is accepted, the conclusion which can be drawn from it remains doubtful. It is not clear when the marks would have been made. I repeat that the movement of some 170 animals by truck, presumably in the dark, would have been a sizeable operation, carried out not all that far from a road or from the property of Ms Ryan. I might say that, if the evidence of Ellison that the very best breeders had been picked out from the herd and removed was accepted, the operation in question would become even more sizeable and difficult. The likelihood of it being carried out between 27 and 29 May, and probably at night, seems to me to become somewhat remote, to put it mildly.
720 In short, I do not accede to the argument that the evidence establishes that, on the balance of probabilities, thieves came and removed the cattle after the RSPCA had departed, or indeed at any time following the arrival of Nicholls on 27 May.
721 That brings us back to the starting point. There is no evidence that, on the balance of probabilities or indeed at all, some 170 cows were removed from or were allowed to escape from Framlingham after the arrival of Nicholls and the commencement of the bailment on 27 May. Whatever their number, there is no evidence that a sizeable portion of the herd was stolen or escaped whilst the RSPCA, via Nicholls, was in possession or control of the animals and was thus a bailee.
722 The situation is not assisted by reference to the so-called presumption of continuance. I note that the learned authors of Cross on Evidence, Australian Edition, refer in paragraph 1125 to continuance, stating that:
“… the question is simply one of relevance, depending on common human experience, and it would be best to avoid the use of the word ‘presumption’ altogether in this context, or, if that too must be employed, it should be qualified by the use of some such expression as a ‘presumption of fact’ or a ‘provisional presumption’.”
The authors go on to say that everything depends upon the facts of the particular case – “Thus, the presumption of continuance is no more than a convenient way of describing a process of logic or reasoning involving the drawing of inferences from established facts.”
723 The established facts in the present case are that 497 cattle were delivered some three months before the arrival of Nicholls and the commencement of the bailment; there were some fluctuations in the number of cattle caused by births and deaths, but no great variation by reason of this overall; no specific or approximate head count was conducted after the arrival of the cattle; and something in the order of 170 cattle were found to be missing by the end of May 2003. It seems to me that no process of logic or the drawing of inferences can lead to the conclusion that those cattle disappeared in the last three days of the period in question.
724 If the number of cattle present at the commencement of the bailment period cannot be established on the balance of probabilities or at all, and there is no evidence which establishes on the same balance that the RSPCA did anything during those three days that directly or indirectly led to or facilitated the disappearance of the cattle, it seems to me that the plaintiffs must fail in establishing that the defendant is in breach of its duty as a bailee of the missing cattle. Further, even if the number of cattle on the property at the commencement of the bailment period could be established, there seems to me to be considerable doubt as to whether a breach of duty by the RSPCA as bailee has been established. As stated in Rolfe, the onus is on the bailee to show that the goods have been lost without negligence on the bailee’s part. In other words, it is not a situation of strict liability. If the bailee can establish that there was no negligence on its part, this is sufficient to discharge its obligations as bailee. In the present case, it was not contended that Nicholls did anything other than leave the property in the condition in which he found it. This included the closing of any gates that had been opened. It is to be remembered that it is a rural farm property with which we are dealing and that such property did not belong to the RSPCA as bailee. Perhaps Nicholls could have placed temporary locks on gates, but it seems to me to be clearly arguable that the bailee has discharged the burden of establishing the absence of negligence on its part.
725 In any event, because there is an absence of evidence as to the number of cattle of which the bailee took possession and control at the commencement of the bailment period, it seems to me that the plaintiffs must fail in relation to their claim based upon breach by the RSPCA of its duties as a bailee of the missing cattle. Because the RSPCA has not discharged the onus to show that the cattle that were put down were lost without negligence on its part, the plaintiffs are entitled to succeed in relation to those cattle. Indeed, as set out above, were it necessary in relation to bailment, the plaintiffs have gone one step further and positively established negligence on the part of the defendant in relation to the cattle that were put down.
Trespass, detinue and conversion
726 Because of the findings which I have already made, there is no need for me to deal with these causes of action at any length.
727 Mr Langslow barely touched upon the pleaded torts of trespass, detinue and conversion in his closing address. The focus of Mr Scanlon upon them was not great. Without going into it in detail, it seems to me that the basics in relation to trespass have been established in relation to the animals that were put down. As was stated by Dixon J in Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204, trespass is a wrong to possession. Dixon J found that, on the facts, there was “never any invasion of possession”. In relation to the cattle that were put down, it seems to me that there was an “invasion of possession”. However, I appreciate that there is also an argument that the RSPCA had taken possession pursuant to the provisions of the Act. Given the way that the case unfolded, there seems to me to be no necessity for me to go into the issue of trespass at any great length. My prima facie impression is that the ingredients of trespass to goods have been made out but, given what has been discussed above, such a finding is somewhat unnecessary. Similarly, the ingredients of conversion may also have been established in that there has been interference or dealing with the cattle by the defendant exercising dominion over the slaughtered animals. Again, there may be a contrary argument that the RSPCA’s action in relation to the slaughtered cattle was authorised by the Act. Presumably there would then be further argument, both in relation to trespass and conversion, that Nicholls was not justified, pursuant to the provisions of the Act, in putting down the animals in question.
728 Detinue would raise various arguments. The evidence does not seem to me to establish that a clear demand was made by the plaintiffs in respect of the return of either the animals or their carcasses. It is a condition precedent for the action of detinue that there be a demand and a refusal. It would not seem to me that those ingredients have been established.
Breach of statutory duty
729 Again, because of earlier findings, not a great deal of attention need be paid to this cause of action. It was argued on behalf of the RSPCA that there is nothing in the Act to support the existence of a statutory duty on the part of the plaintiff and the mere fact that an exercise of power is subject to a qualification, for example, “belief on reasonable grounds”, is not a manifestation of legislative intent to create a statutory duty. It was also argued that a statute such as the Act does not create a right to a private cause of action if the statute as a whole can be characterised as passed primarily for the general good, rather than for the protection of some only, within the wider community – see Gardiner. It was conceded that the absence of a penalty for failure to comply may weigh in favour of the existence of a private cause of action – see Stockwell.
730 The plaintiffs argued that, pursuant to s21(1)(c)(i) and (ii)(B) of the Act, Nicholls was required to determine on reasonable grounds that the cattle were abandoned, distressed or disabled before any consideration could be given to the destruction of the cattle and then only on the basis that the cattle could not properly be treated. Thus, the power to destroy is a power of last resort and, despite the provisions of s21(2A), Nicholls went ahead with the putting down of the animals.
731 The argument on behalf of the plaintiffs seems to me to go more to the merits of the situation, rather than addressing the argument of the RSPCA that, given the nature and wording of the Act, a private cause of action for breach of statutory duty does not lie. In the present case, unlike in Stockwell, the absence of a penalty for a failure to comply may weigh in favour of the existence of a private cause of action – see X (minors) v Bedfordshire CC [1995] 2 AC 633.
732 I might say that the presence of a remedy for breach seems to have been something to which Gillard J attributed some weight in Stockwell. Against that, there is nothing in the Act to evidence a legislative intent to create a private cause of action for breach of statutory duty and the absence of express words giving a private cause of action was regarded by Gillard J in Stockwell as being significant.
733 On balance, I would be of the view that a private cause of action for breach of statutory duty would lie, particularly bearing in mind the absence of any penalty provision. If it did, a breach would have been made out in relation to the slaughtered cattle for the factual reasons set out above. Thus, the end result would be the same.
Negligence of the RSPCA in employing Nicholls
734 The presentation of the plaintiffs’ case and submissions also involved considerable attention being paid to the assertion that the RSPCA was negligently in breach of the duty of care which it owed to the plaintiffs in respect of employing reliable and trustworthy employees suitable and fit to deal with the type of situation which arose at Framlingham. Emphasis was placed upon the previous shooting incident involving Nicholls and particularly the contents of the letter of 2002 to Mr Barber.
735 That Nicholls had not undergone any psychological or psychiatric treatment, other than six meetings with a psychologist as part of the debriefing process following the shooting, is something which I accept. However, what is contained in the letter to Mr Barber, the State Director of the RSPCA at the time, is a cause for concern.
736 Mr Apostolidis, then the chief inspector, was unaware of it, but regarded the contents as being significant and very disturbing. Had he been aware of it, he would have discussed a possible change of role for Nicholls, and removing him from fieldwork would have been an option.
737 The letter, dated 8 July 2002, thus gives an indication as to the problems which the plaintiff was encountering less than a year before the events at Framlingham. In my view, the RSPCA was negligent in not bringing this letter to the attention of its chief inspector and Nicholls’ superior.
738 Whether that negligence was productive of the loss and damage sustained by the plaintiffs as a result of the slaughter of the cattle is another matter. The cause of Nicholls acting in the way that he did is a moot point.
739 Mr Scanlon submitted that I effectively had to determine between whether Nicholls had acted like some form of maniac or whether he had acted properly and reasonably. I do not accept that those two extremes represent the only possibilities. Even though he was aware of the ownership of the animals, Nicholls may have so acted because of impetuosity. In relation to the position which he adopted, he may have been impatient or obstinate. There may have been some pressing reason why he was not prepared to wait another day or why he wished to have the matter effectively completed by the weekend. He may have been suffering from the problems described in his letter to Mr Barber. He may have been wishing to avoid a confrontation. There exists a range of possibilities going beyond those which I have just listed. Whilst it might satisfy curiosity and add some completeness if the motivation for his behaviour could be established, the evidence does not allow this. What he did, rather than why he did it, lies at the heart of my determination.
740 Thus, whilst it seems to me that the RSPCA was negligent in effectively ignoring the letter from Nicholls to Mr Barber, the state of the evidence does not permit me to find that this negligence was causative of the loss and damage suffered by the plaintiffs.
Conclusion as to liability
741 In summary, the plaintiffs are successful. They have established liability on the part of the RSPCA in relation to a number of cattle put down by Nicholls. I will repeat, in very summary form, the key findings which I have made and which lead to this conclusion:
(i) on the night of Tuesday, 27 May 2003, when Nicholls rang Holdsworth, Holdsworth told him that he was a part owner of the cattle;
(ii) Holdsworth organised to meet Nicholls on Friday, 30 May;
(iii) Holdsworth was not aware of the urgency of the situation or that the killing of cattle had commenced;
(iv) Nicholls did not contact Holdsworth on Wednesday, 28 May, when he put down a few animals and made arrangements for a major assessment of the herd on the following day, such arrangements including the presence of trucks from Tesbury;
(v) on Thursday, 29 May, Nicholls, who was at all times in control of the situation and the operation, commenced the assessment process, which was effectively a culling of the herd;
(vi) if any doubt existed as to the ownership of the cattle, this had been removed before the assessment process began, Nicholls having been provided with the results of the business name search;
(vii) at an early stage, before the essential assessment and killing had taken place, Mr Rentsch spoke to Nicholls about the fact that Holdsworth was coming for a meeting with him on Friday, 30 May;
(viii) at no stage did Nicholls clarify the ownership situation with Dr Irvine, who proceeded to act in the belief that the animals were abandoned;
(ix) had Dr Irvine known that the ownership of the animals was something of which Nicholls was aware and an owner would have been available on Friday, 30 May, to discuss the matter, that would have absolutely made a difference to the course of action;
(x) in controlling the situation, Nicholls effectively did not permit the treatment of individual animals;
(xi) Mr Wagstaff, an impressive and independent witness, queried as to why the cattle were being put down, given their condition;
(xii) the whole operation conducted by Nicholls on behalf of the defendant (including the assessment process in which Mr Kelly participated) seems to have been conducted with what could be described as indecent haste;
(xiii) there is effectively no reason why that whole operation could not have been put on hold for at least one day so that Holdsworth (and Ellison) could have been consulted in relation to what could be done for the cattle;
(xiv) Nicholls expressed the view that the remaining cattle were, in the opinion of the veterinarian, not capable of being moved. Dr Irvine gave evidence to the contrary. The remaining cattle were in fact moved without what could be described as any major problem;
(xv) no proper or complete inspection of the feed available to the herd was carried out, in that the paddock to the western side of the driveway does not seem to have been examined and, more importantly, minimal examination of the grass available in the forest occurred.
742 In a long and complicated case, they are just some of the key findings. There were various other matters which I have set out above which have convinced me, on the balance of probabilities that Nicholls, on behalf of the RSPCA, hastily and negligently put down, or caused to be put down, a considerable number of cattle.
The number of cattle involved
743 Having found in favour of the plaintiffs on the question of liability, I am now to determine how many cattle form the foundation of the claim of the plaintiffs for loss and damage. Whilst this can be dealt with far more briefly, again it is not a simple task. Again, there are mysteries.
744 As stated, the number of cattle forming the basis for the assessment of damages does not include the missing cattle. For obvious reasons, it does not include the retrieved cattle. It centres on the cattle that were slaughtered.
745 At the outset, I say that I am satisfied that the animals wrongfully and hastily put down include two bulls. Four bulls were delivered. No bulls were retrieved. No bulls show up in the Tesbury records. However, Nicholls was of the view that he only ever saw two bulls and both were put down. Dr Irvine, a witness whom I accept on many issues, stated that his records clearly showed that two bulls had been put down and that he had no doubt but that there were a couple of bulls present. Ms Heck was reasonably confident that two bulls were put down, only modifying her opinion when it was put to her that the records of Tesbury differed in this regard. Even then, her explanation was that it was possible that the veterinarian had changed his mind, but the evidence of Dr Irvine would indicate that this did not occur.
746 Importantly, the photographs contained in Exhibit H indisputably show that there were a couple of bulls in the yards during the assessing process, and it is to be remembered that all surviving cattle were ultimately retrieved. None of these were bulls. Mr Kelly confirmed that he saw a total of two bulls. Whilst Mr Rivett was confident as to the accuracy of the Tesbury records, he also stated that he was unable to say if any bulls came in.
747 Mr Moloney stated that, whilst he could recall no bulls in the pile of carcasses which he inspected, it was possible that smaller bulls could get past him on the chain. On balance, I prefer the more positive evidence that two bulls were put down. This also coincides with the photographic evidence that two bulls can be seen in the yards, but no bulls were amongst the animals retrieved.
748 I turn now to the number of cattle, apart from the bulls, that were put down by Nicholls and others on behalf of the RSPCA. I am not including animals that died otherwise than at the hand of Nicholls or those working with him. In this regard, it seems to me that the safest and most reliable evidence is that based upon some of the Tesbury records in relation to carcasses collected. In that regard, I would refer to Exhibit 8. As shall be discussed, even then the figures require some adjustment and discussion. However, these records in general strike me as being more accurate than some of the estimates given by eye witnesses either to the slaughter of the animals or to the processing of the carcasses.
749 The cattle put down on 27 and 28 May 2003 seem to have totalled 16 cows and either two or three calves. Exhibit 8 contains both what is described as the daily record of animals processed and a sheet which seems to be a summary of this with some additional input from the individual drivers. In relation to the total number of carcasses collected on 28 May 2003, the difference between the two is small. In fact, it amounts to one calf – the daily record sheet referring to two calves whereas the summary, dealing with the situation driver by driver, refers to three calves. I have previously expressed some reservations concerning the accuracy of the record taking of Tesbury and prefer the version which appears to have also had some input from the drivers. Therefore, I accept that 19 animals, being 16 cows and three calves, were collected on 28 May 2003.
750 Considerable doubt exists as to whether this number should include the cows upon which post-mortems were performed. There is reference in the summary to the load collected by driver, Mr Paul Unwin, on 28 May to two cows which had died on the previous day. Whether or not this is a reference to the cows upon which post-mortems were performed, the conclusion which I have reached is that such animals should not be included in the estimate of those which are to form the foundation of the claim. The impression which I have gained from the totality of the evidence is that, as stated, considerable doubt exists as to whether the cows upon which post-mortems were performed were, in fact, taken to Tesbury.
751 In any event, in relation to the cow upon which Dr Irvine performed a post-mortem, he stated that this cow was profoundly emaciated, but did score it at 1 out of 5. He had been present when it was euthanised, and expressed the opinion that this needed to be done because it was too weak to get up, although not laterally recumbent. However, he did modify this by saying that he would not have been happy to leave it where it was without it having quite intensive medical therapy, and even then he was not sure that it would have been able to be brought back. It is to be remembered that, at that time, he seems to have been supplied with no information as to ownership, and I would refer to earlier passages in this Judgment. However, on balance, I will exclude it from the tally on the basis that it was in the condition described by Dr Irvine and that a post-mortem may have been deemed necessary in the circumstances prevailing. The same applies to the animal which was the subject of the autopsy performed by Dr Page. Accordingly, I make no allowance for those two cows.
752 Further, the summary, into which apparently there has been some driver input, refers to the collection of 28 May 2003 as including “the 6 cows dead already in paddock”. Whether these were put down by Nicholls or had died for other reasons is not specified. I shall also exclude them from the calculation which I am making.
753 This means, after deduction of the two cows on which post-mortems were performed and the six which were already dead, that the allowance which I make is for eight cows and three calves, as stated above.
754 I now turn to the cattle put down on 29 May 2003. I am including in this figure animals that were shot during the mustering process. Evidence was given concerning how cows that go down can be saved with appropriate treatment. One factor that is not entirely clear is whether the number of carcasses taken to Tesbury included those of cattle that had died prior to the intervention of Nicholls. In trying to assess this, I would point out the following. The evidence was that cattle that had been dead for some four or five days would not be picked up by Tesbury – see, for example, the evidence of Mr Rentsch. In any event, Mr Rivett gave evidence that on Wednesday, 28 May, 16 cows and three calves came in. As stated, for 27 and 28 May I am allowing eight cows and three calves, so that the balance may well represent carcasses of animals that had otherwise died (including the two cows upon which autopsies had been performed).
755 Trying to get the various numbers to tally is extremely difficult. However, I have come to the following conclusion. I am not satisfied that the total number of cattle that came into Tesbury is in fact in the order of 180, as one estimate carried out by Mr Rivett would seem to indicate, even though the bulk of his evidence elsewhere is to the effect that the total number was 140 (see T2407). It seems to me that some confusion may well have been caused by an entry early in the day in the daily records of Thursday, 29 May. What it appears to be is a request by Nicholls for a truck to collect 50 dead cows at 10.30am. Mr Rivett can recall Nicholls ringing him on the evening of 28 May requesting trucks for the following day. He referred to some conversation concerning the possibility of getting a truck there earlier. I would also refer to the evidence of Mr Moloney to the effect that Mr Steve Wakeling took a truck out early, was gone for a while, but came back without a load, effectively saying that things were somewhat disorganised at Framlingham. Mr Rentsch gave evidence that he attended Framlingham at approximately 1.00pm and, at that stage, the shooting had not started. On the basis of the available evidence, such as it is, it seems to me that the first entry on 29 May referring to 50 dead animals is a request for a vehicle with some advance indication as to the size of a load, without there being a specific head count. I note that there would also appear to be a question mark on the same line of the records, although this may or may not be referring to a map reference. Thus, it may be that those 50 animals represent double counting as, rather than being a separate load, they represent an estimate of animals that may need to be taken in the first load or two.
756 One thing seems reasonably clear. If those 50 are removed, the various estimates of animals put down and taken to Tesbury roughly, although not precisely, coincide and tally. That is after the adjustment to be made in respect of animals put down before 29 May. Certainly the total is not in the order of 180. Whilst Mr Rivett’s evidence varied at times, what he stated with some confidence was that the total number of carcasses brought in on 28 and 29 May was 140. If eight are deducted from that, in respect of the cows which I have not allowed, the total is then 132. If the summary prepared at the time with driver input is examined, and I prefer it, the total number of carcasses delivered to Tesbury is 139. By my reckoning, if the figures in the less satisfactory daily records are added, and what I might describe as the contentious 50 are excluded, the total figure seems to me to be 138. Again, ultimately eight are to be deducted. Dr Irvine said that 117 were put down whilst he was present. Obviously that does not include those previously put down. If the 19 collected on 28 May is added to this, the total number of carcasses delivered should then be 136. Ms Heck was of the view that 117 cattle were shot on 29 May by Tesbury employees. If the 19 animals taken to Tesbury on 28 May is added to that figure, the total would be 136.
757 The figures can be juggled back and forth. On balance, I am satisfied that 139 carcasses were delivered to Tesbury, this being the number set out in the summary document prepared on the basis of information relating to each driver. From that figure I am deducting eight animals for the reasons previously set out. It may be that I am doing the plaintiffs a disservice in relation to what could be described as the “floating fifty”, but the weight of evidence seems to me to indicate that a total of 139 relevant carcasses were taken to Tesbury. Then, as discussed, a further deduction of eight is made.
758 Thus, I find that the number of cattle negligently put down by Nicholls on behalf of the defendant and representing the foundation of the plaintiffs’ claim for damages is 131. Of that 131, two were bulls and three were calves.
Overall conclusion
759 I find that the plaintiffs have established negligence on the part of the RSPCA. Nicholls hastily and negligently put down 131 animals. The case can now progress to the assessment of damages. I shall discuss with the parties how this should be done. Hopefully, this remaining aspect of the case can be dealt with more expeditiously than was the keenly contested battle concerning liability.
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