May v Cat Welfare Society Incorporated t/as Cat Haven
[2016] WADC 14
•5 FEBRUARY 2016
MAY -v- CAT WELFARE SOCIETY INCORPORATED t/as CAT HAVEN [2016] WADC 14
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WADC 14 | |
| Case No: | APP:75/2015 | 22 JANUARY 2016 | |
| Coram: | MCCANN DCJ | 5/02/16 | |
| PERTH | |||
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| PDF Version |
| Parties: | MARIANNA MAY CAT WELFARE SOCIETY INCORPORATED t/as CAT HAVEN |
Catchwords: | Appeal from Magistrates Court Section 44 Animal Welfare Act 2002 Animals seized by RSPCA inspector Whether Magistrates Court has jurisdiction to make orders against a third party |
Legislation: | Animal Welfare Act 2002 s 42, s 43 and s 44 |
Case References: | May v The State Western Australia [2015] WASC 24 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
CAT WELFARE SOCIETY INCORPORATED t/as CAT HAVEN
Respondent
ON APPEAL FROM:
For File No : APP 75 of 2015
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE TEMBY
File No : PE GEN 9872 of 2015
Appeal Result : JUDGMENT AGAINST CLAIMANT
Catchwords:
Appeal from Magistrates Court - Section 44 Animal Welfare Act 2002 - Animals seized by RSPCA inspector - Whether Magistrates Court has jurisdiction to make orders against a third party
Legislation:
Animal Welfare Act 2002 s 42, s 43 and s 44
Result:
Appeal dismissed
Representation:
Counsel:
Appellant : In person
Respondent : Mr M W Fatharly
Solicitors:
Appellant : Not applicable
Respondent : Kott Gunning
Case(s) referred to in judgment(s):
May v The State Western Australia [2015] WASC 24
1 MCCANN DCJ: This is an appeal from a decision of a magistrate of the Magistrates' Court made on 2 October 2015 whereby his Honour dismissed the appellant's claim against the respondent and ordered her to pay the respondent's costs.
2 The basic facts are as follows:
(i) On 19 December 2012 inspectors of the Royal Society for the Protection of Cruelty to Animals (RSPCA) attended properties belonging to the appellant and purported to seize 138 animals (mostly cats) pursuant to powers conferred upon them under pt 3 of the Animal Welfare Act 2002.
(ii) Subsequently some of the cats came into the custody of the respondent (the Cat Haven cats).
(iii) On 26 June 2015 the appellant lodged an application in the Magistrates' Court seeking an order against the respondent pursuant to s 44(6) of the Act for the return of the Cat Haven cats to her.
(iv) On 17 August 2015 the appellant filed an affidavit in support of her application. It is somewhat unclear, but it is common ground that the respondent is a charitable organisation concerned with the welfare of cats.
(v) The matter came on for hearing before a magistrate on 2 October 2015.
(vi) Mr Fatharly appeared for the respondent and informed the magistrate of the outcome of other proceedings which the appellant had instituted in the Supreme Court and the Magistrates Court in connection with the original seizure by the RSPCA. In May v The State Western Australia [2015] WASC 24 the appellant sought injunctive relief preventing the RSPCA from taking any action in relation to the seized cats. On 23 January 2015 the application was dismissed on various grounds, but relevantly, on the ground that there were pending proceedings in the Magistrates Court (9786 of 2014) in which the RSPCA inspector was seeking an order pursuant to s 44(8) of the Act for the forfeiture of the seized animals to the Crown. Mr Fatharly also informed the magistrate in this matter that an order was made to that effect on 27 January 2015.
3 In the light of those circumstances, Mr Fatharly applied for an order for the dismissal of this matter on the ground that the appellant's claim was without merit and the court had no jurisdiction to make the orders sought.
4 The learned magistrate acceded to the application and gave the following oral reasons (ts 15 – 16):
I've had the benefit of reading the decision of the Supreme Court in the matter of May v The State of Western Australia [2015] WASC 24, handed down by Mitchell J on 23 January 2015, which has some relevance to the issues that I am determining today, although the parties are not the same as the parties in these proceedings …
I've listened to Ms May today. I've read her affidavit and the annexures to her affidavit. I'm satisfied that her claim is without merit. I'm satisfied that what she is asking the court to do, in many respects, is impossible to achieve. At any event, a claim that the authority acting under the Animal Welfare Act did not have the power to do what they did, in my view, is a claim that cannot be substantiated. The legislation provides for that to be done and that's what's occurred.
The fact that The Cat Haven may have ultimately been the recipients of animals that were seized pursuant to that legislation, in my view, does not create an nexus between the claimant and the defendant in these proceedings. There is simply no jurisdiction, in my view, to bring this claim in this court having that particular entity as the defendant in these proceedings.
They are – the animals that were forfeited to the Crown were able to be realigned with the defendant in these proceedings for reasons that I don't need to go into. But the fact is they are not, in my view, connected to any claim that the claimant brings in respect of these proceedings. And therefore, the jurisdiction for me to make a decision against them is lacking. I therefore, on the basis of everything that I have heard and read and listened to and determined today, is that the claim has to be dismissed.
5 The learned magistrate relied on three interrelated bases. First, any contention that the RSPCA inspectors acted without authority in seizing the animals was without merit. Second, the seized animals had since been legally forfeited to the Crown. Third, the court had no jurisdiction to make the order sought against the respondent because the respondent had not seized any of the Cat Haven cats pursuant to the Act.
6 The appellant seeks leave to appeal on three grounds. First, she contended that Mr Fatharly misled the learned magistrate as to the status of other proceedings pending in the Supreme Court against the RSPCA under the Freedom of Information Act 1992 (the FOI Act). Second, the learned magistrate would not listen to her (ie failed to afford her a proper hearing). Third, the RSPCA did not have prosecution powers under the Act.
7 On the hearing of the appeal, the appellant sought an adjournment on the ground that the FOI Act proceedings are still pending and that information which she anticipates will eventually be provided will support her contention that the seizures by the RSPCA inspectors were ultra vires the Act. After hearing submissions, I directed that I would proceed to hear the appeal on its merits and would rule on the application for an adjournment and the appeal at the same time.
8 For the following reasons I find that there is no merit in the appeal or the application for an adjournment and both should be dismissed.
9 I commence by making some observations in relation to the second basis of the learned magistrate's decision, and in particular, his Honour's finding that an order for forfeiture had been made in matter 9786 of 2014.
10 I have been unable to find any explicit, sworn evidence below of the making of the forfeiture order, but Mr Fatharly informed me that it was common ground between the parties that the order had been made. I have my doubts as to whether that provided a sufficient basis. I accept that the information was given by Mr Fatharly during submissions without objection from the appellant, but it may have been appropriate for the learned magistrate to ascertain that no objection was taken.
11 Against that background, I have some reservations as to whether the learned magistrate's decision is supportable on appeal on the second basis. However, it is not necessary to decide that question (or the validity of the first basis), since the third basis was undoubtedly open to the learned magistrate and was correct.
12 The appellant was seeking relief pursuant to s 44(6) of the Act using Form 53 which is intended for use in the case of an application for relief under conferring legislation.
13 The relevant legislation is s 42, s 43 and s 44 of the Act which provides as follows:
42. Seizure of animals
(1) An inspector may seize an animal —
(a) if the inspector reasonably suspects that an offence under Part 3 is being, or has been, committed in respect of the animal; or
(b) under a warrant issued under section 60.
(2) An inspector who seizes an animal is to ensure that it is properly treated and cared for (including the provision of veterinary care if that is appropriate) until it is dealt with in accordance with section 44 or 45.
43. Seizure of other property
(1) An inspector may seize any other thing that the inspector reasonably suspects —
(a) is being, or has been, used to commit; or
(b) may afford evidence of the commission of,
an offence under this Act.
(2) An inspector who seizes anything under subsection (1) is to —
(a) keep it in safe custody; and
(b) to the extent that it is practicable to do so, maintain it in the condition it was in when it was seized,
until it is dealt with in accordance with section 44.
44. Dealing with seized property
(1) This section does not apply in relation to a seized animal that is fauna, unless the animal had been lawfully taken under the Wildlife Conservation Act 1950.
(2) As soon as practicable after seizing property an inspector must take reasonable steps to notify the owner or a person in charge of the property that it has been seized and of the owner’s rights under subsection (6).
(3) An inspector may retain seized property until required by subsection (5), or by an order under subsection (9) or section 55, to return it to the owner or to dispose of it.
(4) Subject to an order of a court to the contrary, an inspector may return seized property to the owner at any time if the inspector is satisfied —
(a) that no useful purpose will be served by retaining it; and
(b) in the case of an animal, that it will be properly treated and cared for.
(5) Subject to subsection (9), an inspector must return seized property to the owner if —
(a) 4 months have elapsed since it was seized and no person has been charged with a relevant offence; or
(b) a charge of a relevant offence has been heard and determined but the court hearing the charge has made no order as to the return or forfeiture of the property.
(6) The owner of seized property may apply to the Magistrates Court for an order that it be returned.
(7) Where an inspector is required by subsection (5) to return seized property to the owner the inspector may apply to the Magistrates Court for an order that the property remain under seizure.
(8) An inspector may apply to the Magistrates Court for an order that the seized property be forfeited to the Crown.
(9) On an application under subsection (6), (7) or (8) a court may —
(a) make the order sought on such terms and conditions as the court thinks fit; or
(b) refuse to make the order.
(10) On an application under subsection (6), (7) or (8) in relation to a seized animal the court must have regard to the welfare, safety and health of the animal.
(11) In this section —
owner, in relation to something that has been seized, means the person from whom the thing was seized or any other person who satisfies the CEO that he or she is entitled to possession of the thing;
relevant offence means an offence under this Act —
(a) if the seized property is an animal, the commission of which affected the welfare, safety or health of the animal; or
(b) if the seized property is not an animal —
(i) the commission of which involved the use of the seized property; or
(ii) in respect of the commission of which the seized property may afford evidence.
15 Pursuant to s 44(6), the owner of seized animals may apply to the Magistrates Court for an order that they be returned.
16 Having regard to the scheme as a whole, it is clear that the respondent to such an application must be the inspector (and/or the RSPCA) that seized the animals in the first place.
17 Section 44(7) and (8) provide that an inspector may apply to the Magistrates Court for an order that the seized animals remain under seizure or be forfeited to the Crown. The legislation contemplates that the respondent in such an application would be the owner (as defined in s 44(11)) of the animals.
18 Overall, the scheme contemplates that whilst under seizure animals will either be in the lawful possession of an inspector or the owner, and whilst in the possession of the former they must be properly treated and cared for (s 42(2)). There is nothing in the legislation to prevent the inspector delegating the treatment and care of a seized animal to a third party (such as the RSPCA, the respondent or a veterinary practice) and such is lawful.
19 In this matter the appellant sought a statutory remedy under the Act that is only available against the inspector(s) who seized her animals. There is no statutory remedy in respect of a third party entity such as the respondent who comes into possession of seized animals for the purposes of their care and treatment pursuant to s 42(2).
20 It is arguable that a third party recipient of that kind should be joined as a co-respondent to proceedings instituted by an owner against an inspector pursuant to s 44(6) so as to bind the third party to the orders, but that is not this case and it is not necessary to make a decision about it.
21 The appellant must look to other remedies and forms of relief if she is to seek redress against the respondent. I make no comment as to the nature of those proceedings, or their likely prospects of success, other than to point out that such would be informed either by the legality of the initial seizure (because the respondent's possessory title would lawfully derive from the decision by the inspector to place them into its custody under s 42(2)), and/or, the legitimacy of the forfeiture order made in matter 9786 of 2014 which would enable the Crown to give title (possessory or proprietary) to the respondent.
22 In conclusion, the learned magistrate's decision was undoubtedly correct on the third basis and it is not necessary to make a decision in relation to the first or second bases.
23 None of the proposed grounds of appeal has any merit.
24 It follows that any further evidence gained from the FOI Act proceedings would be of no relevance to the appeal.
25 The application for an adjournment of the appeal, and the appeal, should be dismissed.
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