Hunter v RSPCA WA Inc
[2008] WASC 153
•10 JULY 2008
HUNTER -v- RSPCA WA INC [2008] WASC 153
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASC 153 | |
| 24/07/2008 | |||
| Case No: | CIV:1812/2008 | 10 JULY 2008 | |
| Coram: | EM HEENAN J | 10/07/08 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | LINDSAY HUNTER RSPCA WA INC ROBIN MOORE |
Catchwords: | Application by a vexatious litigant for a permanent stay of orders made in the Magistrates Court concerning the forfeiture of dogs under the Animal Welfare Act Application to rescind or vary the orders declaring the applicant a vexatious litigant in the Supreme Court of Western Australia |
Legislation: | Animal Welfare Act 2002 (WA) Criminal Law (Mentally Impaired Accused) Act 1996 (WA) Vexatious Proceedings Restriction Act 2002 (WA) |
Case References: | Attorney-General v Hunter [2002] WASC 189 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Applicant
AND
RSPCA WA INC
First Respondent
ROBIN MOORE
Second Respondent
Catchwords:
Application by a vexatious litigant for a permanent stay of orders made in the Magistrates Court concerning the forfeiture of dogs under the Animal Welfare Act - Application to rescind or vary the orders declaring the applicant a vexatious litigant in the Supreme Court of Western Australia
Legislation:
Animal Welfare Act 2002 (WA)
Criminal Law (Mentally Impaired Accused) Act 1996 (WA)
Vexatious Proceedings Restriction Act 2002 (WA)
(Page 2)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant : In person
First Respondent : Mr K S Pratt
Second Respondent : Mr K S Pratt
Solicitors:
Applicant : In person
First Respondent : Jackson McDonald
Second Respondent : Jackson McDonald
Case(s) referred to in judgment(s):
Attorney-General v Hunter [2002] WASC 189
(Page 3)
1 EM HEENAN J: On 1 July 2008 Mr Lindsay Hunter, the present applicant, instituted proceedings in this court seeking a permanent stay of certain orders made by her Honour Magistrate Langdon in the Magistrates Court on 10 December 2007 which involved, among other things, the forfeiture of certain dogs to the State.
2 That application came on for hearing ex parte before me on 4 July 2008, supported by a number of affidavits, with Mr Hunter appearing on his own behalf. It emerged that Mr Hunter was at that time, as he still is, declared to be a vexatious litigant under the provisions of the Vexatious Proceedings Restriction Act 2002 (WA). It was, therefore, necessary, as he realised, for leave to be granted under s 6 of the Vexatious Proceedings Restriction Act for him to institute these very proceedings. He sought to be absolved from any necessity to comply with the provisions of s 6 which in the ordinary events requires service of copies of the application upon the person against whom the proceedings are to be instituted, any person who made an application under s 4(2)(c) of the Act or the Attorney-General. For oral reasons which I gave at that time, I concluded that I could not deal with the application without service being effected as required by s 7(6). I directed service of the application and the papers upon the Attorney-General, the RSPCA prosecutor, and upon the Royal Society for the Prevention of Cruelty to Animals.
3 That has since been done and the Attorney-General by the State Solicitor has notified the court that he does not wish to be heard on this application but an appearance has been entered and I have heard counsel on behalf of the RSPCA.
Relief sought by the applicant
4 Proceedings have taken on another character when they were relisted for hearing today. Mr Hunter has now applied, and I have accepted his application, for relief not limited to leave to institute proceedings under s 6 of the Act but additionally or alternatively for an order to rescind or vary the previous order declaring him a vexatious litigant. The power for variation or rescission of such an order is of course contained in the Act in s 7.
5 The order declaring Mr Hunter to be a vexatious litigant was made under this Act by his Honour Hasluck J in this court in the case of the Attorney-General v Hunter [2002] WASC 189. It is, therefore, the order in those proceedings in respect of which a variation or a rescission is sought.
(Page 4)
6 There is a lack of precision in the papers which have been filed about the nature and purpose of these proceedings. There is also some obscurity, to put it mildly, in the affidavits which have been filed by Mr Hunter in this respect. I include in those a further affidavit sworn 10 July 2008, which was produced and read today. By piecing it all together, the relief which Mr Hunter seeks is in respect of a number of dogs which were seized from his possession and ownership by the RSPCA quite some time ago, and which were the subject of a series of proceedings in the Magistrates Court.
Circumstances giving rise to the present application
7 Mr Hunter has a serious interest, and not a little skill and experience, in the breeding of special pedigree dogs and in the training and breeding of these particular dogs for which he says there is a national demand, even an international demand. He also states that dogs of this breed and the dogs which he had seized are themselves extremely valuable. One may debate just how valuable, but substantially valuable is enough for present purposes.
8 What happened was that an inspector with powers under the Animal Welfare Act 2002 (WA) obtained a warrant and seized Mr Hunter's dogs, took them into his possession and control, purportedly under colour of his powers, pending the institution and prosecution of alleged offences by Mr Hunter for breaches of the Animal Welfare Act. All that gave rise to a series of proceedings in the Magistrates Court which I am about to describe.
9 There are at least three sets of proceedings in the Magistrates Court. The first was PER 8543 of 2006, which was an application for leave to proceed against certain persons. The second was a series of proceedings which were prosecutions against Mr Hunter alleging breaches of the provisions of the Animal Welfare Act. Thirdly, there was an application in the Magistrates Court for an order for the forfeiture of 64 dogs which had been seized.
10 It is unnecessary to speak about the first of those sets of proceedings because it has no significance to the present application. The second set of proceedings, the criminal proceedings alleging offences by Mr Hunter, did not continue. They were dismissed by Magistrate Langdon on 5 November 2007 under the provisions of s 19(4) of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) and no appeal against the resolution of those proceedings was instituted within time or at all.
(Page 5)
11 It is the third set of these proceedings which is at the foundation of the present controversy. These proceedings were, as I have already described, an application brought under the Animal Welfare Act for the forfeiture of Mr Hunter's dogs. That application was heard by her Honour Magistrate Langdon on 10 December 2007. For reasons which her Honour gave, an order was made that 62 of the dogs should be forfeited, with the consequence that the authority under the Animal Welfare Act then had full power of disposition or disposal of the dogs.
12 Because Mr Hunter forecast a desire to challenge that order of forfeiture in one of a number of possible ways, the order for forfeiture was not immediately acted upon in the sense that no action was taken to dispose of the dogs which were still kept under the custody of the authority. What did happen, however, was that Mr Hunter applied to the District Court of Western Australia for leave to appeal against the order of forfeiture made by the Magistrates Court.
13 After a number of adjournments, that matter eventually came on for hearing before his Honour Judge Goetze on 4 June 2008. For detailed reasons which were given at the time and which since have been published, Judge Goetze dismissed the application for leave to appeal against the Magistrate's decision and, in doing so, his Honour undertook a review of the progress of the litigation up to that point.
14 He pointed out that, among other things, for Mr Hunter to obtain leave to appeal in the District Court, he would need to satisfy the requirements of obtaining leave under s 6 of the Vexatious Proceedings Restriction Act and he was not satisfied that there was any reasonable chance of that occurring although, as I am about to mention, he allowed an avenue for that to be pursued.
15 His Honour also examined the question of the merits of any proposed appeal from Magistrate Langdon's order and concluded that there were no arguable merits for leave to be granted. He said that it would be an act of mercy to not dismiss this application for leave to appeal having regard to its lack of merit. Leave was refused for that reason and because of the absence of any leave to proceed under s 6 of the Vexatious Proceedings Act.
16 When informed by Mr Hunter that this order might lead to the disposal or destruction of the dogs in the immediate future before it could be challenged in any other way, Judge Goetze made an order staying the effect of the refusal for leave to appeal for 21 days, which expired last
(Page 6)
- Friday. The expiration of that time limit explains why Mr Hunter sought the present application as an urgent matter on 1 July 2008.
17 I should also mention other proceedings in this court, CIV 1475 of 2008. In those proceedings Mr Hunter filed, on 5 May 2008, a notice of originating motion to be heard in open court for leave to file this application pursuant to the Vexatious Proceedings Act. He also sought directions in regard to a proposed application for review of an order of the Magistrates Court and for an injunction for the recovery of valuable genetic property, loss, damages, injury and personal injury, economic loss and a number of other matters. In that notice or originating motion and the affidavit in support of it, it was made apparent that part, at least, of the relief which he sought was designed to challenge or supplant the order for the forfeiture of the dogs made by Magistrate Langdon in December 2007.
18 These proceedings, CIV 1475 of 2008, were supported by two affidavits of Mr Hunter sworn respectively 5 May and 27 May 2008 but they were referred to the Master of the Court who, by an order made 3 July 2008, dismissed the application. Therefore, relief similar to, but not identical with, the relief sought in proceeding number CIV 1812 of 2008, which is now before me, was dismissed earlier this month.
The proposed intentions of Mr Hunter if he is granted leave or permitted to institute proceedings
19 This long preliminary now brings me to the point of attempting to identify just what it is Mr Hunter wishes to do if he is granted leave or is otherwise permitted to institute proceedings. Firstly, he seeks to initiate an action in the civil jurisdiction of this court to allege that the decision of Magistrate Langdon on 10 December 2007 was procured by fraud and is a nullity and should be set aside. In addition, he seeks associated relief staying any order for forfeiture of the dogs and eventually seeking the return of the dogs to him under what he contends was an invalid order of the court procured by fraud.
20 He also seeks either in that action or perhaps in other concurrent proceedings, to contend that the original seizure of the dogs from him which led to the prosecutions which were dismissed and then to the forfeiture orders was illegal, invalid and constitutes trespass to his land and to his goods. He alleges this on the basis that there was no evidence to support any ground which would entitle an inspector to seize the dogs and he has alleged that reasons given by the inspector for the seizure of the dogs and later by the RSPCA that they were emaciated was false and fraudulent and, although he did not say so in as many words, that the
(Page 7)
- whole process of the seizure of the dogs amounted to an abuse of office or a misfeasance of office.
21 Thirdly, Mr Hunter has foreshadowed an application for an order for the RSPCA to deliver up the remaining dogs and to take steps to procure genetic samples from those dogs which have been disposed of and to meet the expenses of cloning those dogs from the genetic samples because of the wrongful disposition of the dogs in recent times.
22 It is necessary to give a little explanation to make that foreshadowed application comprehensible. Of the 64 dogs which were in Mr Hunter's possession when they were seized, forfeiture orders were made in respect of 62 of them, Mr Hunter being allowed to keep two. Once the 21-day stay order granted by Judge Goetze expired, as it did, on Friday 4 July 2008, the RSPCA disposed of 56 of the 62 dogs. The explanation given was that they were re-homed. There are only eight dogs remaining in the possession or control of the RSPCA. It is in respect of the eight dogs remaining that Mr Hunter has forecast his application for an order for the return of the possession of the dogs. It is in respect of the 56 dogs which have been disposed of that he has forecast this claim for genetic material and cloning. No cause of action or the identification of any recognisable legal remedy for such relief has been identified or is readily recognisable.
Proceedings in Magistrates Court
23 The proceedings in the Magistrates Court appear to have been regular on their face, although I hasten to add that the record is not before me on this application. Leave to appeal from those proceedings was sought and refused. The basis for the alleged fraud, as I understand it, goes back to Mr Hunter's allegations about the alleged invalidity of the warrant, the alleged bad faith of the inspector who effected the seizure and the alleged lack of grounds for the seizure of the dogs. Mr Hunter points out that there has never been a judgment in a court on evidence at which the propriety of the inspector's actions has been vindicated or even tested. There might have been an opportunity for that had the prosecutions against him proceeded to a hearing and determination but because they were dismissed in the way they were, that never became possible.
24 Mr Hunter harbours a very great grievance that a variety of improprieties and illegalities have been committed and have led to these forfeiture orders. However, shortcomings in the seizure of the dogs or in the motives of the inspector, if they were relevant, might perhaps have been raised in the forfeiture hearing before the Magistrate. As far as I can see, they were not.
(Page 8)
25 If the alleged shortcomings were not agitated before the learned Magistrate and were not pronounced upon, then the proceedings would have been determined regularly without any fraud on the part of the magistrate or persons participating in the proceedings. If there was a breach of some undertaking given in relation to what would happen after the proceedings had been brought to a conclusion, there might have been an independent right for relief based on an actual or implied contract arising from any undertaking said to have been given, but there is nothing in my view which could possibly support a successful claim to set aside the proceedings in the Magistrates Court on the basis of fraud.
26 As to the allegations that the magistrate's decision of 10 December 2007 was procured by fraud and is therefore susceptible to being declared to be void or set aside by a judgment in this court after trial, there is very little material to support it.
Outcome
27 Although I say so with respect to him, Mr Hunter's affidavits and other papers show an incomplete understanding of the significance of law and the rules of court in relation to the proceedings which have been taken. On the face of the documents before me, they bear all the appearances of vexatious proceedings. I am afraid Mr Hunter does not really understand or appreciate the principles of the law which apply in these proceedings but, nevertheless, no doubt conscientiously, wishes to pursue relief to which he mistakenly believes himself to be entitled.
28 The problem is that the mistake leads him to pursue proceedings which I am satisfied are vexatious. The proposed proceedings which Mr Hunter seeks to institute and those which he has foreshadowed are, to my mind, vexatious. There is no basis upon which leave should be granted or any modification to the existing order of Hasluck J should be made. I therefore refuse the applications which have been made and dismiss the proceedings.
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