International Alpaca Management Pty Limited Ensor, B.K.E

[1992] FCA 1042

I-

104-2-1 1qCI-L )

JUDGMENT NO. ........ .. ......

IN THE FEDERAL COURT OF AUSTRALIA )

1

NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 690 of 1992

)

GENERAL DIVISION 1

,

BETWEEN: INTERNATIONAL ALPACA

MANAGEMENT PTY LIMITED

Applicant

I .

AND :  BEN K.E. ENSOR :

First Respondent

GARRYMERE FARMS LIMITED

Second Respondent

AUSTRALIAN QUARANTINE AND INSPECTION SERVICE, DEPARTMENT OF PRIMARY INDUSTRY AND ENERGY

Third Respondent

JUDGE EVLKING ORDERS:  FOSTER J

DATE I 28 OCTOBER 1992

PLACE :  SYDNEY

MINOTE OF ORDERS

Note:	Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.

THE COURT ORDERS THAT:

1.   The alpacas referred to in the application be delivered into the custody of the applicant pending the final determination of these proceedings.

2.   Orders in accordance with the Short Minute of Orders, as amended, be made.

IN THE FEDERAL COURT OF AUSTRALIA	)
1
NEW SOUTH WALES DISTRICT REGISTRY )	NO. NG 690 of 1992
GENERAL DIVISION

BETWEEN: INTERNATIONAL ALPACA

MANAGEMENT PTY LIMITED

Applicant

AND:  BEN K.E. ENSOR

First Respondent

GARRYMERE FARMS LIMITED

Second Respondent

AUSTRALIAN QUARANTINE AND INSPECTION SERVICE, DEPARTMENT OF PRIMARY INDUSTRY AND ENERGY

Third Respondent

C O W :	FOSTER J
DATE :	28 OCTOBER 1992
PLACE :	SYDNEY

REASONS FOR JUDGMENT

(Extempore)

HIS HONOUR: The major question in the substantive proceedings in this case is the ownership of a number of alpaca animals. There is some evidence bearing upon that issue. It has been submitted on behalf of the applicant that it is a question that I should relevantly take into account in determining the matters raised in the notice of motion. Be that as it may, I think that the more prudent course is to approach the questions raised in the respective notices of motion on the basis that I do not form any view, even a prima facie one, as to the ownership of these animals. That is a matter which will fall for decision at the hearing of the substantive cross-applications. I would prefer to approach this matter simply on the basis of making an interim determination as to, for want of a better phrase, the custody and care of the alpacas pending the determination of the proceedings.

These interlocutory proceedings have been brought on as a matter of urgency because the alpacas are currently in quarantine in a quarantine station operated by the third respondent in the Cocos Islands. They cannot remain in their present location for more than a period of two or three weeks, as their quarantine may be impaired by the introduction to the islands of a large group of rhinoceroses, which animals are also being brought to the island for the purpose of quarantine.

It is accepted by both sides that for this reason some arrangement must be made urgently for the removal of the alpacas. I accept that that is the situation and I do not need go into the scientific reasons for it even on the basis of the scant evidence that has been placed before me.

It is accepted that the animals must come to Australia and that they must be taken on to a property appropriate for their care and management, pending the determination of these proceedings. The care and management of alpacas is sufficiently demonstrated on the material placed before me to be a matter of some difficulty. The difficulty is compounded in the present case as a large number of the animals are female and are pregnant. There is to be a calving of a large number of these females in a reasonably short space of time.

parties have put forward proposals to the court for each to take the animals into custody. The applicant puts forward a proposal that they be cared for at a property in New South Wales. The property is known as "Coolaroo" and is situated in High Range Road, Mittagong. It is only a relatively short travelling distance from Sydney Airport. Objection is taken on behalf of the first and second respondents to the animals being quartered at that property because it is associated with the applicant. The association, so far as I am able to determine, amounts to this. It is a property owned and operated by a Mrs Street. Mrs Street is a	director of the applicant, although having no financial	interest in the applicant. She is also the mother of the
executive chairman of the applicant. It does not appear that the applicant itself has any management or control of the property. The alternative properties which are put forward are firstly, a property in Lawson Road, Gisborne, Victoria owned and operated by a M r Jinks. A third property is a property in Keith, South Australia, which is operated by a Mr

~ 0 t h

Bartor.

It is clear that the second property is the one primarily put forward by the first and second respondents as being the more suitable property for the care of the alpacas. 1t does appear, however, that Mr Ensor, the first respondent, has some connection with that property. The connection is not clear to me on the evidence currently before me but it has not been clarified by Mr Ensor. As is not unusual in this type of case in whatever jurisdiction it is brought, each side is anxious that the opposing side does not have custody of the property pending proceedings because it sees that some prejudice may accrue to it if that is the position. This is a case, however, where it could properly be said that each party has an interest in preserving the property and I do not think that I can give very much weight to submissions of that kind.

No solution in a case of this kind will ever seem perfect, but a solution must be found in a situation which is growing more urgent by the day. I have been more impressed in	this application with the evjdence put forward as to the
suitability of the property at Mittagong, as opposed to the
suitability of the other properties. It is clear that those responsible for the management of the Mittagong property have
considerable experience in the care, maintenance and
management of alpacas. I am not satisfied that the situation is the same in the pzoperty in Victoria. So far as the property in South Australia is concerned, there is at least a

suspicion raised that there may be some problems involved in the near future in relation to the safety and security of that property for the housing of alpacas.

Doing the best I can with the material before me I have come to the conclusion that I should find in favour of these animals being cared for, pending the determination of the proceedings, at the property put forward by the applicant, that is the "Coolaroo" property at Mittagong. Both sides have proposed short minutes of order based upon an order in the first instance being made in favour of the property which each proposes. There is not a great deal of difference in the consequential orders that each seeks. Those orders are designed to provide a proper measure of security for the animals and a proper degree of safeguard for the interests of the opposing party during the custody of the animals at the property put forward. I can see no reason why, now that I have come to the primary decision, that I should not make the orders in the form sought by the applicant.

I certify that this and the preceding	four (4) pages are a true copy of the
reasons for judgment herein of the Honourable Mr Justice M. L. Foster.
Associate: Date: 28 OCTOBER 1992

A P P E A R A N C E S

COUNSEL FOR THE APPLICANT:	MR M. WEBECK (Solicitor)
INSTRUCTED BY:	WEBECK FARLAND PENDER

COUNSEL FOR THE FIRST AND SECOND RESPONDENTS: MR S.L. WALMSLEY

INSTRUCTED BY:  PHILLIPS FOX

COUNSEL FOR THE THIRD RESPONDENT: MR J. WITHEFORD (Solicitor)

INSTRUCTED BY: AUSTRALIAN GOVERNmNT SOLICITOR

DATE OF HEARING:	28 OCTOBER 1992
DATE OF JUDGMENT:	28 OCTOBER 1992