Page v Long
[2025] VCC 868
•27 June 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-22-02964
| NEIL WILLIAM PAGE | Plaintiff |
| v | |
| CHRISTOPHER ROSS LONG | Defendant |
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JUDGE: | HER HONOUR JUDGE TRAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16-18 September 2024, 6 November 2024 | |
DATE OF JUDGMENT: | 27 June 2025 | |
CASE MAY BE CITED AS: | Page v Long | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 868 | |
REASONS FOR JUDGMENT
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Subject:TORT – TRESPASS – DAMAGES
Catchwords: Alleged trespass to illegally hunt hog deer ꟷ where hog deer wild animals not owned by landowner ꟷ measure of damages ꟷ where illegal hunting and use of gun equipped with suppressor ꟷ aggravated damages ꟷ punitive damages ꟷ TRIGGER WARNING ꟷ judgment contains images of dead deer
Legislation Cited: Wildlife Act1975 (Vic);
Cases Cited:Slaveski v State of Victoria [2010] VSC 441; TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333; Port Stephens Shire Council v Tellamist Pty Ltd [2004] NSWCA 353; Sydney Local Health District v Macquarie International Health Clinic Pty Ltd (2020) 105 NSWLR 325; Plenty v Dillon (1991) 171 CLR 635
Judgment: Judgment for plaintiff in the sum of $120,000
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms Bridget Slocum | Rostron Carlyle Rojas Lawyers |
| For the Defendant | The defendant appeared in person |
TABLE OF CONTENTS
THE LAKE REEVE RANCH
ALLEGATIONS OF TRESPASS
HOG DEER HUNTING
DID MR LONG ENTER THE RANCH IN DECEMBER 2019 AND AGAIN IN DECEMBER 2020?
Parties’ submissions
Mr Page’s submissions
Mr Long’s submissions
EVIDENCE OF WITNESSES
Evidence of Mr Young
Evidence of Mr Scott
Reliability of Mr Scott and Mr Young’s evidence
Evidence of Mr Long
Evidence of Mr Page and Ms De Visser
Mobile phone tower data
Conclusions in relation to trespass
WHAT AMOUNT SHOULD BE AWARDED AS DAMAGES?
Mr Page’s submissions
Mr Long’s submissions
The three types of damages awarded for trespass
What amount should be awarded to vindicate Mr Page’s entitlement to exclude Mr Long (general damages)?
Should the award of damages be increased for aggravated or exemplary damages?
JUDGMENT
HER HONOUR:
The Lake Reeve Ranch
1Sandwiched between Ninety Mile Beach and the Gippsland Lakes, adjacent to the Lakes National Park, is a magnificent 1,600 acre[1] landholding known as the Lake Reeve Ranch. Cattle farmer Neil Page bought the Ranch some 18 years ago. Since then, Mr Page and his partner Corrie De Visser have laboured together to transform it into a haven for a rare and beautiful little deer, known as the hog deer. They have removed weeds, installed water sources and planted both native and non-native fodder trees. As a result of their labours, the population of hog deer that frequent the Ranch is flourishing and has increased to some 500 deer. The Ranch also provides habitat to many other animals, including sambar deer, kangaroos, emus, foxes, snakes and a multitude of birds.
[1]As at the time of the alleged trespasses. The Ranch has since increased to 3,000 acres in size through acquisitions of neighbouring properties.
2Mr Page and Ms De Visser visit the Ranch just about every week. They enjoy feeding the hog deer lucerne hay from the back of their vehicle and have developed relationships with individual deer that return for feed year after year. They photograph these hog deer and other wildlife on their property. They and their family members derive a great deal of pleasure from driving or walking around the Ranch.
3They also enjoy shooting the hog deer and hosting others who wish to do so.
4Each year, Mr Page and Ms De Visser host around fourteen licensed hunters who are permitted to shoot hog deer on the Ranch in accordance with a hog deer management plan approved by the Game Management Authority. Game hunters travel from all over the world for the opportunity to shoot a hog deer in the wild on the Ranch; and to take the “cape”[2] and its antlers as a trophy. Mr Page and Ms De Visser charge these hunters about $6,500 each for the provision of food, accommodation and guiding services. The Ranch is currently fully booked until 2030.
[2]The hide of a deer’s head. Removing the hide of the deer’s head for the purposes of mounting is called “caping”.
Allegations of trespass
5In March 2019, Ms De Visser posted on the Hog Deer Hunting Australia Facebook page about a court proceeding in which allegations were made against Christopher Long (and others) of illegal hunting on private property. Mr Long posted a reply to her message, which read:
“Hi Corrie De Visser, this was settled to avoid going to court. I hope your little hogs are safe this year…”
6Mr Page alleges that this post was intended to be read as a threat. He alleges that in December 2019, Mr Long made good on this threat. He alleges Mr Long travelled from his home in South Australia to Gippsland and entered the Ranch armed with a bolt-action centrefire rifle equipped with a suppressor.[3] He alleges that, while on the Ranch, Mr Long shot several deer and removed their heads, leaving their headless carcasses to rot.
[3] More colloquially known as a “silencer”.
7Mr Page further alleges that in December 2020 (i.e.: almost exactly one year later), Mr Long again travelled from South Australia to Gippsland, entered the ranch and shot several deer. On this occasion, Mr Page and Ms De Visser discovered the rotting decapitated carcasses of three hog deer on their land. They then took steps to identify the perpetrator. Ultimately, after they offered a cash reward for information to members of the hunting community, two men contacted them and provided evidence that pointed to Mr Long.
8Mr Page has sued Mr Long for damages for the tort of trespass.
9The hog deer are wild animals and do not belong to Mr Page. He cannot sue directly for their deaths, nor the removal or taking of their heads. However, the Ranch is his property and he is entitled to exclude others from it. The law of trespass entitles him to compensation from anyone who enters the Ranch without his consent or other lawful excuse. There is no question Mr Page did not ever, and would not ever, give consent to Mr Long to enter onto the Ranch. No other lawful excuse was relied upon by Mr Long. This proceeding thus raises the following questions for determination:
(a) Did Mr Long enter the Ranch in December 2019 and again in December 2020?
(b) What damages should be awarded to Mr Page as vindication of his right to exclude Mr Long from the Ranch (general damages)?
(c) Should the damages which would otherwise be awarded as compensation for trespass be increased:
(i)because the way Mr Long behaved increased the distress and aggravation of the trespasses to Mr Page and his family (aggravated damages); or
(ii)to punish Mr Long for unlawful, dangerous or other outrageous conduct, and to deter him and others from engaging in such conduct in the future (exemplary damages)?
10After providing some background on the recreational activity known as hog deer hunting I will consider each of these questions in turn.
Hog deer hunting
11Deer hunting, or at least the deer hunting that this Court heard evidence about, seems primarily concerned with collecting “trophies” for bragging rights. Point systems such as the Douglas Score are used to grade the antlers of a deer based on the size of the antlers and its tines. The rarer the deer and the bigger the Douglas Score, the greater the bragging rights.
12A particularly rare, and therefore prized, deer is the hog deer. People travel to Gippsland from all over the world to hunt hog deer, as it is one of the few places in the world where it is possible to hunt hog deer in the wild.
13Although all deer are an introduced species, they are classed as “wildlife” for the purpose of the Wildlife Act 1975 (Vic) (“the Wildlife Act”). The hunting of hog deer in Victoria is strictly regulated by the Game Management Authority. A person who wishes to hunt hog deer must first obtain a licence and hog deer tags. A hunter can obtain no more than two hog deer tags per year – one for a male and one for a female. Hunting is normally only permitted in April. However, individual landowners can obtain approval from the Game Management Authority to host hunters outside April in accordance with a hog deer management plan. Landowners are not permitted to charge hunters for shooting hog deer, but they are permitted to charge for food, accommodation and guiding services. If a landowner hosts more than five hunters outside of April, they are required to make a balloted position available free to a member of the public. The Game Management Authority also runs annual ballots for those hunters wishing to hunt hog deer on Snake Island, Blond Bay or Boole Poole. Each year, entry into these ballots far outstrips available places.
14There are two other ways in which a person wishing to shoot a hog deer and obtain its cape and antlers as a trophy may do so. First, it is possible to pay to shoot a captive hog deer in a paddock. This is known as high-fence shooting, rather than hunting (presumably because it is not viewed as sufficiently fair on the deer). Second, a hunter could hunt illegally – either without a licence or at a location where they do not have permission to hunt. Unlawful hunting of this kind is known as poaching.
Did Mr Long enter the Ranch in December 2019 and again in December 2020?
Parties’ submissions
Mr Page’s submissions
15Mr Page’s case is that, in December 2019 and again in December 2020, Mr Long entered onto the Ranch without Mr Page’s consent or any other lawful excuse. Mr Page alleges that, on each occasion Mr Long entered the Ranch, Mr Long used a rifle equipped with a suppressor to illegally shoot and kill hog deer on the Ranch. He alleges that at least five deer were killed in this manner – two in December 2019 and three in December 2020.
16In relation specifically to the December 2019 alleged trespass, Mr Page relies upon the following evidence:
(a) evidence that Mr Long had trespassed and poached deer on other occasions including: his prior conviction on 19 July 2016 for discharging a weapon on private land without the owner’s consent; oral boasts of poaching to witnesses Mr Zac Young and Mr Matthew Scott; Facebook Messenger messages that Mr Young said he received from Mr Long in 2017 and 2019 in which Mr Long boasted of poaching (including in the vicinity of the Ranch) and of using a “Choofa” (suppressor); evidence of Mr Young that he saw Mr Long use a suppressor on a rifle at Mr Long’s property in late 2017; and the evidence Mr Page relied upon in relation to the December 2020 trespass (see below);
(b) the Facebook interaction between Ms De Visser and Mr Long in March 2019, in which Mr Long responded with the message “I hope your little hogs are safe this year”;[4]
(c) screenshots of a series of text messages, which witness Mr Young said Mr Long sent him via Facebook Messenger on 18 December 2019, in which Mr Long boasts of shooting a large hog deer;
(d) two photos of hog deer which Mr Young said Mr Long sent him on 18 December 2019, but subsequently urged him to delete;
(e) a video of a person shooting a hog deer and several photos which Mr Scott said Mr Long sent him on 19 December 2019; and
(f) photos taken by Mr Page or Ms De Visser at the Ranch, which they said showed locations in the photos and video sent by Mr Long to Mr Young or Mr Scott;
[4] Plaintiff’s Outline of Closing Submissions dated 2 October 2024 a paragraph [15], page 6
17In relation specifically to the December 2020 alleged trespass, Mr Page relied upon the following evidence:
(a) the evidence described above in relation to the December 2019 alleged trespass;
(b) Mr Page and Ms De Visser’s evidence they discovered decapitated hog deer carcasses and other items on the Ranch in late December 2020 or early January 2021;
(c) mobile phone data showing that Mr Long was in the vicinity of the Ranch on 15 and 16 December 2020 and again between 28 to 30 December 2020;
(d) Mr Scott’s evidence that on 30 December 2020 Mr Long messaged him on Facebook Messenger and said he was on the way home from “on the hogs”[5], attaching photos of dead hog deer;
(e) three photos of dead hog deer which Mr Scott said that Mr Long sent him on 30 December 2020;
(f) photos of two live hog deer taken by Mr Page or Ms De Visser, which they said were the same deer as the dead deer in the photos Mr Scott said he received from Mr Long on 30 December 2020; and
(g) the evidence of Mr Page and Ms De Visser that they had not seen these two hog deer alive since December 2020.
[5] T62, L26
Mr Long’s submissions
18Mr Long:
(a) denied having shot a deer on the Ranch;
(b) said he did not “believe” he had trespassed on the Ranch but, if he did, he had not seen a boundary fence or any signage;
(c) denied owning a firearm or suppressor;
(d) admitted he had told stories about poaching to Mr Scott and Mr Young, but said they were untruths which he told to obtain further business from Mr Scott and Mr Young;
(e) did not recall sending photos to Mr Scott and said that a photo of him caping a deer was not related to the other photos;
(f) claimed that trespass on the Ranch by others was common and that Mr Page was seeking to make an example out of him to deter others; and
(g) claimed Mr Scott and Mr Young were desperate for money and some of the messages provided by Mr Young may have been fabricated.
19In his written submissions, Mr Long also relied upon 13 cases said to support the proposition that, in civil trespass proceedings, courts require convincing circumstantial evidence to show that the defendant was likely responsible for the trespass. Of these, 11 of the cited cases did not exist (some had citations similar to genuine cases, but none of these cases concerned the use of circumstantial evidence). One case, Halliday v Nevill,[6] was a criminal case concerning whether an arresting police officer committed trespass. That case turned on whether there was an implied licence to enter an open driveway, rather than on the use of circumstantial evidence. The final case was R v Baden-Clay,[7] concerning the use of circumstantial evidence to meet the criminal standard of proof of beyond reasonable doubt where the defendant was charged with murder. None of the cases supported the proposition they were relied for in Mr Long’s submissions.
[6] (1984) 155 CLR 1
[7] (2016) 258 CLR 308
20It is likely these cases are another example of a litigant’s misplaced reliance upon generative AI to assist them in preparing submissions. Any litigant (whether represented or unrepresented) who chooses to use such technology:[8]
…has a primary obligation to ensure that the document is accurate and not misleading. This includes ensuring that:
a) any legislation or cases referred to exist; and that any summaries or extracts from legislation or case law are accurately described;
b) any affidavits or witness statements represent the actual testimony of the deponent or witness and are written, as far as possible, in the deponent or witness’s own words; and
c) any chronologies, summaries or submissions are accurate and address the real issues in dispute.
[8]Common Law Division Practice Note (PNCLD 1-2025), paragraph 3.7. See also Guidelines for Litigants: Responsible Use of Artificial Intelligence in Litigation. County Court practice notes and guidelines are available here:
21Generative AI can be beguiling, particularly when the task of representing yourself seems overwhelming. However, a litigant runs the risk that their case will be damaged, rather than helped, if they choose to use AI without taking the time to understand what it produces, and to confirm that it is both legally and factually accurate.
Evidence of witnesses
Evidence of Mr Young
22Mr Young messaged Ms De Visser in January 2021, in response to a Facebook post in which she offered a reward for information in relation to poachers on the Ranch. He provided her with copies of messages he had received from Mr Long. He was subpoenaed to give evidence as a witness in this proceeding.
23He gave evidence that he met Mr Long in about 2017, over Facebook. He said he paid Mr Long a fee to shoot deer on Mr Long’s property[9] and had visited this property on at least three occasions. Mr Young said that on one occasion he had shot a deer with 17.5 inch antlers and a Douglas Score of about 118 on Mr Long’s property. On another visit to the property, he said he watched Mr Long shoot a gun fitted with a suppressor which Mr Long picked up from a table.
[9] This was high-fence shooting rather than hunting, as the deer were held in a 20-25 acre pen.
24Mr Young said Mr Long frequently told stories about his poaching activities. He said that on one occasion in 2017, Mr Long boasted of poaching on the Ranch and said it was easy, and the deer were like fish in a barrel because they come up to you.
25Mr Young provided screenshots of Facebook Messenger messages sent to him by Mr Long in October 2017, September 2018 and January 2019, in which Mr Long boasted of poaching deer, including at Wilson’s Promontory, Snake Island and Loch Sport (which is the nearest town to the Ranch).
26In relation to the December 2019 alleged trespass, Mr Young provided screenshots of the following conversation, which he said occurred between him and Mr Long on Facebook Messenger on 18 December 2019:
“Mr Long
I beat your 118 yesterday
I need you to get that scored properly. Did ken do it or did I get 118
Mr Young
Working again. Did you kill a a (sic) big one?
Mr Long
Yes, yes I did.
Mr Young
Didn’t know they got that big in the wild.
Mr Long
Neither did I mate,
It’s a great story.
Mr Young
I bet.
Mr Long
I’ll put it in book.
Mr Young
Ok
Mr Long
I’m still in shock
Mr Young
Photo?
Mr Long
You know I don’t do that. But when you are here I’ll show you.
Or when we are together.
Mr Young
Ok.
Rushed operation?
How long?
Mr Long
Well it didn’t need to be but I was in and out in a day with two in my backpack.
16.5
Do not send this to anyone ok!!!
No no. I’ll just wait till ya here.
Mr Young
Roger. You know me. Haha
Almost as long as mine mate…
Hahahha
Mr Long
Yours is longer. I want you to get it officially scored.
Do not send this photo to anyone. Ok??
Mr Young
[Thumbs up emoji]
You’ve got my word.
I have no one to show hahahah
Mr Long
Now delete and send me pic of them deleted.
Shot this 107 too. Delete them all.
Delete delete delete.
Mr Young
Yeh boy
Mr Long
Delete!
Don’t save them.
Mr Young
Haha I won’t.
Mr Long
Delete whole convo.
I want a blank screen.
I want to trust you.
You are the only person who knows!
Mr Young
[After posting a screenshot of the previous few messages with any images deleted]
Nice head mate. It’s a cracker.
Beautiful inners
Mr Long
Hog deer hunt pressure off. Now just go for shits and giggles.
Mr Young
Nice
Were there a few about.
Mr Long
I saw a112. A couple of 100-105. And lots of shit and little stuff.”[10]
[10] Court book (“CB”) 146 -152
27Mr Young gave evidence that the reference to “your 119” was a reference to the Douglas Score of the large deer Mr Young had shot on Mr Long’s property and that the reference to “16.5” was a reference to the length of the antlers of a hog deer Mr Long had shot. He also gave evidence that, although he did attempt to delete the photos at the time, in fact, two of these photos had saved on his phone. These two photos were tendered in evidence.[11] Each photo showed a dead hog deer lying in the grass. Mr Young also produced file information showing these photos were saved at 8.43pm on 18 December 2019.[12] This same time is just visible in the screenshot he sent to Mr Long demonstrating he had deleted the photos from the Facebook Messenger message thread (referred to above).[13]
[11] Supplementary Court Book (“SCB”) 2-3
[12] SCB 4
[13] CB 151
Evidence of Mr Scott
28Mr Scott contacted Ms De Visser in February 2021 in response to her Facebook post offering a reward for information in relation to poachers on the Ranch. He was subpoenaed to give evidence at trial.
29Mr Scott gave evidence that Mr Long had first contacted him in 2019. At the time, Mr Scott was working as a guide for deer hunts in Mexico and Australia. He believed Mr Long reached out to him because he hoped to earn money from Mr Scott’s connections to international clients who might pay to engage in high-fence shooting of a deer on Mr Long’s property. Ultimately, Mr Scott took at least two groups of clients to Mr Long’s property. These clients paid Mr Long many thousands of dollars to shoot deer on his property. Mr Scott said that in total he had visited Mr Long’s property approaching 10 times.
30He said Mr Long often spoke about poaching, particularly on the properties of Angus Brinkworth in South Australia.
31Mr Scott gave evidence that, on 19 December 2019, Mr Long sent him a video of a man shooting a hog deer with a rifle fitted with a suppressor. Mr Long was not the man shown in the video. Mr Scott said he assumed that Mr Long was the person who filmed the video and that his voice could be heard in the audio, coaching the hunter. He also said that, on the same day, Mr Long sent him a photo of Mr Long with a dead hog deer over his shoulder; a second photo of Mr Long seated with a dead hog deer, with a rifle fitted with a suppressor shown in the foreground; and a third photo of Mr Long “caping” a hog deer under a tree. As the identification of the location shown in these photos is important, I reproduce them as Figures 1, 2 and 3 below. I also reproduce a screenshot taken from the video as Figure 4 below.
32Mr Scott also gave evidence that on 30 December 2020 he received a message from Mr Long saying that he was on the way home from being “on the hogs”. He said that Mr Long then sent him four photos of dead hog deer.
33Mr Scott said the Facebook Messenger conversation with Mr Long had been deleted, so he was unable to produce copies of any messages from Mr Long. However, he produced copies of each photo and video, together with file information showing they were saved on either 19 December 2019 or 30 December 2020.
Figure 1: Photo of Mr Long with a deer over his shoulder[14]
Figure 2: Photo of Mr Long with deer and rifle with suppressor[15]
Figure 3: Photo of Mr Long “caping” a deer[16]
Figure 4: Screenshot of video[17]
[14] CB 280
[15] CB 279
[16] CB 283
[17] CB 284
Reliability of Mr Scott and Mr Young’s evidence
34I have some concerns about the reliability of the evidence of Mr Young and Mr Scott. Both came forward only after Ms De Visser offered a reward for information. Both had been paid several thousand dollars as a reward for the information they provided Ms De Visser. Mr Young did not produce any photos until shortly before the trial. It is likely both were motivated by money in coming forward. Their claim that they came forward primarily out of concern for Ms De Visser, appeared more an after-the-fact rationalisation, than a genuine motivating force. It does not seem that they had previously done anything to discourage Mr Long from boasting about poaching, or to dissuade him from such activities. There was also a contrast between the detail of their recall about specific incidents, conversations and messages, and their vagueness in relation to other details such as dates.
35However, the screenshots of Facebook Messenger messages, photos and video were compelling. The date and time provided in the file information for the photos produced by Mr Young matched that of the Facebook Messenger message in which he confirmed to Mr Long that he had deleted the photos. It is unlikely Mr Scott or Mr Young had the sophistication or sufficient motive to forge messages or alter photographs. It was not put to either that they had. In closing submissions, Mr Long submitted he believed “some of the messages included by Mr Young in the trial were fabricated”[18] and he did not recall sending photographs to Mr Scott.[19] However, in cross-examination, Mr Long did not deny the conversation with Mr Young and said “[i]t looks familiar”.[20]
[18] Defendant’s outline of closing submissions at paragraph [27]
[19] Ibid at paragraph [13]
[20] Transcript (“T”) 247, Line/s (“L”) 1
36In the circumstances, although I treat the oral evidence of Mr Young and Mr Scott with some caution, I accept that:
(a) prior to 2019, Mr Long boasted orally of poaching hog deer to both Mr Young and Mr Scott;
(b) the screenshots of Facebook Messenger messages which Mr Young said Mr Long sent him between October 2017 and December 2019 were sent by Mr Long to Mr Young;
(c) the photos Mr Young said Mr Long sent him on 18 December 2019 were sent by Mr Long to Mr Young on that date;
(d) the photos and video Mr Scott said Mr Long sent him on 19 December 2019 were sent by Mr Long to Mr Scott on that date; and
(e) the photos Mr Scott said Mr Long sent him on 30 December 2020 were sent by Mr Long to Mr Scott on that date.
Evidence of Mr Long
37Mr Long denied ever shooting a deer, or carrying a rifle, on the Ranch. He denied shooting any of the deer in the photos produced by Mr Young and Mr Scott. He denied ever shooting a hog deer in the wild. He claimed the last time he shot a deer with a rifle was over eight years ago. He admitted to boasting of shooting hog deer to others, but said these hog deer had been shot by others. He claimed he did this to “rub [his] ego”[21] and also in the hope it would assist him to earn clients for his hunt-guiding services and for high-fence shooting on his property.[22]
[21] T218, L38
[22] See, for example, T262, L19-33
38Mr Long did not expressly deny being on the Ranch in December 2019 or December 2020. He admitted to exploring the Gippsland Lakes area with others, but claimed to have separated and explored the area while they hunted. However, he denied that the photo in Figure 3 above was taken on the Ranch.
39He claimed to not really enjoy killing deer, but said guiding clients on hunts enabled him to be in the outdoors and use his skills to help clients. In the next breath, he said that, as an 18 year old, he would hunt during school holidays and university holidays and “[t]hey would send me on water runs with a rifle and they wouldn’t see me until dark. I fell in love with the sport”.[23] He also boasted of assisting with culling in the area and having “harvested” 4000 deer in one year.[24] He also admitted boasting to Mr Young that “[t]hat was an easy mission”, and by that, he meant it was an easy hunt. When asked which hunt, he said “there has been so many over my lifetime”.[25] He claimed never to have shot a hog deer, but also agreed it was correct he had been hunting hog deer for a long time.[26]
[23] T219, L28-30
[24] T219, L31-33
[25] T223, L29-35
[26] T243, L22-25
40A series of screenshots of Facebook Messenger messages between Mr Young and Mr Long between October 2017 and January 2019 were tendered. In these messages, Mr Long repeatedly boasts of poaching hog deer, including at “Prom” (a reference to Wilsons Promontory National Park, where deer hunting is prohibited) and “Locksport” (a reference to Loch Sport, which is the nearest town to the Ranch). In November 2017, he refers to deer he shot from 10 metres and posts a picture of himself with a dead deer in long grass. Mr Young asks him if he was using a “choofa”[27] and he replies “[y]es I was. A very good one”.[28] In January 2019, he describes 42 degrees as perfect weather for poaching, as Angus (a reference to landowner Angus Brinkworth) will be inside. He claims to go poaching in the “Prom” every year.
[27] A suppressor fitted to his gun.
[28] CB 136
41Mr Long did not deny making these boasts. His case was that he repeatedly lied about his poaching activities to people such as Mr Young and Mr Scott in order to boost his ego; and because he felt it would be financially advantageous for him to do so, by assisting him to get paying clients for his guiding services and for high-fence shooting of hog deer on his wife’s property. In essence, his contention was that the Court should find that he lied to obtain a financial benefit when he previously boasted of poaching hog deer, but should accept he was telling the truth in Court. Yet, he also stands to gain financially (or at least minimise the extent of his financial loss) by lying in this proceeding. Of course, the fact that a person is untruthful on one occasion, is not necessarily proof that they were untruthful on another occasion. However, it is a relevant factor in assessing the reliability of a person’s evidence.
42Although Mr Long’s evidence at the hearing at times appeared frank, on other occasions it lacked credibility and he came across as saying whatever suited his self-interest at the time. For example, in cross-examination he asserted he used the word “poaching” in messages to Mr Young to mean hunting that was not necessarily illegal.[29] This evidence was contrived and unconvincing. It was inconsistent with his earlier acceptance that poaching meant hunting somewhere you are not allowed to be or when you are not licensed.[30] It was inconsistent with the context in which he used the term “poaching” in messages with Mr Young (for example in reference to hunting at Wilsons Promontory, where any hunting would be illegal).[31] It was also inconsistent with his own claim he falsely boasted of poaching to boost his reputation with Mr Young and Mr Scott.
[29] T250, L20-23
[30] T246, L1-13
[31] See, for example, CB 132
43Mr Long also maintained that he had not shot any deer for around eight years. Against this were his boasts of poaching in messages to Mr Young over a period commencing in October 2017 and continuing to the end of 2019, and oral boasts of poaching made to Mr Young and Mr Scott. He also sent a photo to Mr Young on 25 November 2017 of Mr Long holding the antlers of a dead deer in long grass. He claimed in his evidence that this deer came from his property and he had transported it to the site of the photo for the purpose of staging a photograph to substantiate his boasts of poaching. In a context where he claimed to be a highly experienced hunter and hunting guide, it seems very unlikely he would need to go to such lengths to stage a photo of himself having successfully hunted a deer. Photos were also tendered in evidence of him with a dead deer over his shoulder and of him sitting next to a dead deer with a rifle fitted with a silencer also visible in the shot.[32] He claimed the dead deer he was pictured with was shot by two acquaintances when he was not there and he had then travelled to their location and staged a photo with the deer to give the impression he had shot it with a rifle and suppressor, so he could boast to others of having shot the deer. Again, this evidence was contrived and unconvincing.
[32] Figures 1 and 2 above
44Finally, he appeared angered by the damage to his reputation caused by Ms De Visser posting on Facebook about the legal case in which he was a defendant (although all he admitted to was being a “bit disappointed” and thinking it was not “appropriate”[33] and “a bit shocked”[34]).
[33] T266, L26-30
[34] T266, L42
45Shortly after seeing this post, he posted his comment about hoping her “little hogs are safe this year”.[35]
[35] CB 165
46When cross-examining Ms De Visser, and in his evidence-in-chief, he sought to portray this comment, not as menacing, but rather as extending genuine good wishes to Ms De Visser that her hog deer stay safe. That he would be so guileless as to send genuine good wishes to Ms De Visser in the context was not at all believable.
47In all the circumstances, I find Mr Long’s evidence is so unreliable that it should not be accepted unless contrary to his self-interest.
Evidence of Mr Page and Ms De Visser
48Neither Mr Page, nor Ms De Visser, directly witnessed the alleged trespasses. Nor were they privy to any admissions by Mr Long of having trespassed on the property. However, Mr Page tendered many photographs taken around the Ranch by either himself or Ms De Visser. These photographs showed:
(a) numerous signs posted around the Ranch warning that it was private property;
(b) surveillance and trail cameras around the Ranch, some of which Mr Page said had been installed after December 2020;
(c) various relevant locations around the Ranch;
(d) two live hog deer who they said they used to feed from the back of a Ute, but who they had not seen since December 2020;
(e) rotting carcasses of dead hog deer they said they found in January 2021; and
(f) a bullet cartridge and scalpel blade said to have been found at the Ranch in a location known as “Hangmans” in early 2021.
49Both Mr Page and Ms De Visser were clearly angry at Mr Long. At times, Mr Page’s evidence lacked specificity and he frankly admitted to a lack of recall. However, nothing gave me reason to doubt the truthfulness or reliability of their factual evidence.
50Ms De Visser and Mr Page gave evidence that the tree in Figures 1[36] and 2[37] was the same as the tree below in Figure 5
Figure 5: Photo of a tree at “Jim Shockey’s” on the Ranch, taken by Ms de Visser in January 2020[38]
[36] Figure 1
[37] Figure 2
[38] CB 1171
51When cross-examined about this issue, Mr Long admitted “[y]es, there’s some similarities. Yes”.[39] My own comparison of the limbs of the tree show such structural similarities[40] that it would be astounding if the tree in the photo in Figure 5 were not the same as the tree in Figures 1 and 2.
[39] T277, L20
[40]With an allowance for additional growth which may be explained by the photo having been taken over a year later.
52These photos, taken alone, provide convincing evidence that Mr Long trespassed on the Ranch in December 2019.[41]
[41]That is, sufficient to meet the Briginshaw standard which Counsel for Mr Page conceded applied.
53Ms De Visser also provided a photo of an area known as “the Beehive” on the Ranch. She gave evidence this was the location where the video of the hunter was taken, a screenshot of which is reproduced in Figure 4[42] above.
Figure 6: Photo taken at “The Beehive” on the Ranch[43]
[42] Figure 4
[43] CB 1167
54Again, a comparison of these images confirms the video was taken at this location on the Ranch.
55Ms De Visser gave evidence that the photograph of Mr Long “caping” a deer (Figure 3) was also taken on the Ranch, at a location “down towards the Hangmans”.[44] I accept that the vegetation in this photo looks similar to the type of vegetation shown in photos of the Ranch. However, no photo of a specific location at the Ranch was tendered which could be matched with this photo. Mr Long denied this photo was taken on the Ranch. Although there is good reason to suspect it was taken on the Ranch, suspicion is not enough. In all the circumstances I am not satisfied, on the balance of probabilities, that the photo in Figure 3 was taken on the Ranch.
[44] T185, L30
56Mr Page tendered two photographs of a (live) hog deer which he said were taken on the Ranch on 26 December 2020.[45] His evidence was that a comparison of the antlers demonstrated this was one of the dead deer in the photos Mr Scott said Mr Long had sent him on 30 December 2020.[46] He tendered a further photograph of a different (live) hog deer which he said he had taken sometime in 2020.[47] He identified this as another of the dead deer in the photos that Mr Scott said Mr Long had sent him on 30 December 2020.[48] Ms De Visser gave similar evidence in relation to the identity of these deer. Under cross-examination, Mr Long admitted the live deer in the first two photographs was “very similar” to the dead deer. In relation to the second, he said “It looks the - it - if it’s not the deer - if it’s not the same deer, I’d be very surprised”.[49]
[45] CB 1172 and CB 1175
[46] CB 275
[47] CB 1182
[48] CB 293
[49] T285, L11-12
57Ms De Visser gave evidence that the two deer in question had been fed hay by them from the back of a Ute and were tamer than other deer. Ms De Visser and Mr Page did not permit hunters to shoot those deer they “have a connection with” of this kind.[50]
[50] T170, L18-20
58I accept that each of Mr Page, Ms De Visser and Mr Long have expertise in identifying deer from distinguishing marks on their antlers based on their experience. I have not attempted to perform the same exercise myself, beyond confirming the marks the witnesses relied on existed. Based on this evidence, I accept the photos of dead deer sent by Mr Long to Mr Scott on 30 December 2020 included two deer who habitually frequented the Ranch and have not been seen alive since late December 2020.
59Mr Page also tendered photos of the rotting carcases of three decapitated hog deer which they discovered on the Ranch in late December 2021 or early January 2021; and a scalpel blade and bullet cartridge they found on the Ranch in early 2021.
Mobile phone tower data
60In January 2021, Mr Page reported Mr Long’s alleged poaching activities to the Victoria Police. In the resultant investigation, mobile phone tower data was obtained for Mr Long’s mobile phone, which was tendered in Court, together with a map which had been prepared by an experienced police tactical intelligence officer at Sale. That data showed Mr Long’s mobile phone connected to mobile phone towers in the Gippsland Lakes area, near the Ranch, on 15 December 2020, 16 December 2020 and 29 December 2020.
61This evidence does not provide conclusive evidence that Mr Long was on the Ranch. However, I accept it establishes he was in the vicinity of the Ranch on 15 and 16 December 2020, and again on 29 December 2020.
Conclusions in relation to trespass
62First, I am satisfied, on the balance of probabilities, that Mr Long trespassed on the Ranch in December 2019, likely on about 17 or 18 December 2019.
63The photos reproduced as Figures 1 and 2 show Mr Long on the Ranch. They are convincing evidence that Mr Long was on the Ranch sometime shortly before 19 December 2019. When these photos are considered in conjunction with the messages to Mr Young and the video sent to Mr Scott, it is likely Mr Long was accompanied by at least one other person and that the purpose of that trip to the Ranch was to illegally hunt (i.e.: poach) hog deer.
64For the following reasons, I also find that Mr Long trespassed on the Ranch again in December 2020, most likely on 29 December 2020.
65In civil cases, the standard of proof is the balance of probabilities. Conjecture or suspicion is insufficient. However, a case may be built on circumstantial evidence, so long as that evidence gives rise to a reasonable and definite inference which is more probable than not.[51]
[51] Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at page 5
66In the present case, that evidence is as follows. In January 2021, deer carcasses (and other evidence of poachers having been on the Ranch) were discovered by Mr Page and Ms De Visser. Mr Long is placed in the area on 15 and 16 December 2020 and 29 December 2020 by mobile phone data. Mr Long did not deny being on the Ranch in December 2020 in his oral evidence or submissions. Mr Long is someone with an interest in poaching hog deer, or coaching others to do so. He had previously trespassed on the Ranch in December 2019 in connection with illegal hog deer hunting. Mr Long sent photos of dead deer to Mr Scott on 30 December 2020, two of which were identified as deer known to frequent the Ranch. I accept Mr Page’s evidence that at least one of these deer was still alive and able to be photographed on 26 December 2020.
67Mr Page accepted that the “Briginshaw standard” applied in this case.[52] In essence, this principle states that the graver the allegation, the more substantial the proof required. Even having regard to this principle, the most likely explanation for the above evidence is that Mr Long trespassed on the Ranch on at least 29 December 2020 (and possibly also 15 and 16 December 2020) and was directly involved in the death of the deer whose photos he shared with Mr Scott.
[52] Briginshaw v Briginshaw (1938) 60 CLR 336
68I do not accept Mr Long’s evidence he was not aware he was on private property. I accept there are prominent “Private Property” signs displayed around the property. If, as Mr Long contended, he had canoed extensively around the area, he would have seen these signs. Indeed, he demonstrated a remarkable familiarity with the layout of the Ranch when formulating cross-examination questions. Given his detailed knowledge of the area, Mr Long can be assumed to have known that the land which he traversed was private property. If he didn’t, he ought to have, which is sufficient to establish the tort of trespass.[53]
[53] See Slaveski v State of Victoria [2010] VSC 441 (“Slaveski”) at paragraph [279]
69There is no direct evidence that Mr Long shot a hog deer while trespassing on the Ranch. The only footage of a deer being shot is the video sent to Mr Scott on 19 December 2019. This video shows someone other than Mr Long shooting a hog deer.
70However, on 18 December 2019, Mr Long sent Mr Young a photo of a dead deer and on 19 December 2019, Mr Long sent Mr Scott a photo of him with a dead deer over his shoulder; a photo of him with a dead deer and a rifle fitted with a suppressor in the foreground; and a photo of him “caping” a dead deer.
71Mr Long admitted he knew the person shown in the video shooting a hog deer on the Ranch. He said he was invited to come to the area with this person and possibly one other man. However, he claimed to have absented himself from the group during the hunt, only joining them after the deer were shot. He claimed he was nevertheless permitted by them to stage the tendered photos of him with a dead hog deer to make it look like he had participated in the hunt and that he then shared these photos with others to falsely boast about killing the deer himself.
72His claim to have been invited to accompany a man to the area; to have specifically absented himself from the hunting party at the time when the hog deer were killed; but then to have re-appeared in time to have posed photos taken with the deer, was implausible. This is particularly so given his long association with hog-deer hunting, including guiding hog-deer hunts; and his claim to be afraid of the men in question. I am not positively satisfied Mr Long shot a hog deer in December 2019. However, the most likely explanation for the photos and video he sent in December 2019 is that he either shot each of the dead deer he is pictured with, or he was a knowing participant in a hog-deer hunting party, during which one of the members of his party, in his presence, shot the dead deer he is pictured with. It is also likely the deer were shot with a rifle fitted with a suppressor, as shown in Figure 2.
73In relation to the photos he sent to Mr Scott on 30 December 2020 of dead hog deer, Mr Long claimed they were shared with him by one of the same two men. He claimed these men had killed the hog deer at a time he was in the area, but not present. Again, this claim is implausible. The more likely explanation for his possession of these photos is that he was present at the time the hog deer were killed – either because he was the hunter who killed them, or because he was a member of the hunting party and another member of that party killed the hog deer. However, again, I am not specifically satisfied he was the person holding the gun.
74In summary, I find Mr Long trespassed on the Ranch in mid-December 2019 with at least one other hunter and that, on this occasion, at least two deer were shot, either by him or by a member of his hunting party. I find that the gun used to shoot these deer was fitted with a suppressor. I find that, in December 2020, Mr Long again trespassed on the Ranch and that, on this occasion, either he was the sole hunter involved in the expedition and shot at least three hog deer himself, or he was a knowing participant in a group of two or more people who trespassed on the Ranch for the purpose of hog-deer hunting, and were responsible for the shooting of at least three hog deer.
75Finally, I find Mr Long used photos and videos taken or obtained by him by trespassing on the Ranch, to boast of illegally killing hog deer to others for the purpose of financial gain and to bolster his ego.
What amount should be awarded as damages?
Mr Page’s submissions
76In relation to general damages, Mr Page contended a “substantial award” was required to vindicate his right to exclusive occupation of the Ranch.[54] He relied upon the three categories of trespass identified in Tellamist:[55]
(a) a trespass which gives benefit to the defendant without loss to the plaintiff;
(b) a trespass which involves benefit to the defendant and correlative actual loss to the plaintiff; and
(c) a trespass which involves loss to the plaintiff and no correlative gain to the defendant.
[54]Plaintiff’s closing submissions at paragraphs [60]-[61], relying on TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333 at 352 (“Anning”), paragraph [178] and Slaveski at paragraph [283].
[55]Port Stephens Shire Council v Tellamist Pty Ltd (“Tellamist”) [2004] NSWCA 353 at paragraphs [195]-[197]; applied by the New South Wales Court of Appeal in Sydney Local Health District v Macquarie International Health Clinic Pty Ltd (2020) 105 NSWLR 325 at 345, (“Sydney Local Health District”) paragraph [74].
77Mr Page contended that the present case fell within category (b), as Mr Long’s gain (in being able to hunt hog deer) caused a correlative loss to Mr Page (in not being able to allow a paying customer to hunt the hog deer). Alternatively, he said it fell within category (a) (a gain to Mr Long in being able to hunt hog deer without a correlative loss to Mr Page). Whether it was within category (a) or category (b), he contended that the $6,500 he charged licensed hunters for food, accommodation and guiding services provided a measure of the amount it could be assumed Mr Long would have paid for the opportunity to kill each deer. As he contended that Mr Long had killed at least five deer, he claimed that general damages should be assessed at $32,500. Finally, Mr Page submitted this amount was also appropriate as it approximated the amount Mr Page had spent on additional security since Mr Page’s trespasses.
78In addition to seeking $32,500 for general damages, Mr Page submitted an additional award for aggravated and exemplary damages should be made, given:
(a) Mr Long’s response to Ms De Visser’s Facebook post that “I hope your little hogs are safe this year”[56] should be viewed as a threat, and evidence that he specifically targeted the Ranch because of Ms De Visser’s Facebook post concerning a proceeding against him;
[56] CB 165
(b) Mr Long’s trespasses involved a masked man in camouflage sneaking onto the Ranch with a rifle equipped with a suppressor. This was dangerous conduct. This increased the legitimate fear and anxiety experienced by Mr Page and his family members. It particularly impacted on Ms De Visser and her granddaughter, who no longer felt safe walking around the property;
(c) Mr Long’s trespasses occurred over the Christmas break, a time when Mr Page and his family members were likely to be present.;
(d) Mr Long’s trespasses concerned the illegal killing of particular deer which they had developed a relationship with;
(e) in the December 2020 trespasses, Mr Long left behind three rotting decapitated carcasses of deer. Mr Page always butchered any deer which were shot on his property and was outraged at the wastage of these deer carcasses;
(f) Mr Long hid the deer carcasses in an attempt to avoid detection;
(g) Mr Long’s actions directly interfered with Mr Page’s business and his conservation activities on the Ranch;
(h) at the time of the trespasses, Mr Long had no firearm licence. Using an unlicensed firearm or silencer and possessing, carrying or using a firearm without the consent of the owner or occupier of a property, and hunting, taking or destroying hog deer without a license, were all serious crimes;
(i) Mr Long poached for bragging rights and financial advantage;
(j) Mr Long’s trespasses should be viewed as deliberate, given the many signs around the property, the two locked gates and fenced land boundaries;
(k) Mr Long had a long history of, and enthusiasm for, poaching;
(l) hog deer are protected wildlife under the Wildlife Act and Mr Long’s activities enabled him to “skip the queue” and undermine the careful regulation of hog deer hunting; and
(m) a “prohibitively costly” amount should be awarded, sufficient to deter both Mr Long and other poachers. Of relevance to this is the fact that Mr Long had previously been charged and fined in relation to the discharge of a firearm on private property.
Mr Long’s submissions
79Mr Long denied shooting a hog deer on the Ranch and said that, in any event, the hog deer were feral animals and were not owned by Mr Page. He contended there was no evidence Mr Page’s business had lost any money. He said the government would most likely step in to control the numbers of hog deer in any event, as they were feral animals which spread disease and weeds, destroyed native habitat and competed with native wildlife.
80He denied that his comment in response to Ms De Visser’s Facebook post was intended to be a threat. He claimed he and his family had suffered as a result of Ms De Visser’s posts, and this proceeding, and Mr Page unfairly wanted to make an example of him, when many others poached on the Ranch.
81He denied causing Mr Page or Ms De Visser any mental anguish. He said it was hypocritical of them to make such a claim when Ms De Visser’s son had been caught poaching hog deer.
The three types of damages awarded for trespass
82The tort of trespass is “actionable per se”. This means that damages are recoverable without the need for a plaintiff to show actual loss. However, as Santow JA explains in Tellamist,[57] there must be a basis for an award of “substantial” (as opposed to nominal) damages. Santow JA identifies three categories of case in which “substantial” damages may be awarded for the tort of trespass. First, there is trespass giving benefit to the defendant without actual loss to the plaintiff.[58] This might occur, for example, where the trespass involves temporarily using and occupying land. In such a case, Santow JA expressed the view that damages could be assessed on a quasi-restitutionary basis at the value of the benefit appropriated by the defendant, that is, the reasonable charge for the use. Second, there is trespass involving benefit to the defendant and correlative loss to the plaintiff. This might occur, for example, where something is severed and removed from the land. In such a case, Santow JA said damages might be assessed equally to prevent the defendant’s gain and to compensate the plaintiff’s loss. The third case was trespass involving loss to the plaintiff and no correlative gain to the defendant.[59] Such a case might involve a trespass which caused actual physical damage to the land. Here, Santow JA suggested that damages might be awarded for the diminution in value of the land or the reasonable cost of re-instatement (and perhaps also loss of profits), “subject always to the overriding requirement that damages be a fair and reasonable compensation to the plaintiff for the injury he has suffered”.[60]
[57]At paragraphs [190]-[192]. Santow JA was in dissent in this decision, but his description of three categories of cases in which substantial loss may be awarded was applied in Sydney Local Health District at paragraph [74].
[58] At paragraphs [193]-[194]
[59] At paragraph [198]
[60] At paragraph [207]
83The three categories identified by Santow JA focus exclusively on financial loss or gain. For convenience, I have described such damages as “general damages”.[61] An award of damages assessed in this manner may be increased where some conduct of the defendant has aggravated the hurt and distress suffered by the plaintiff by reason of the trespasses. This is known as aggravated damages.[62] It may also be increased where the defendant has engaged in conscious wrongdoing in contumelious disregard of the plaintiff’s rights, deserving of punishment. This is known as punitive damages.[63]
What amount should be awarded to vindicate Mr Page’s entitlement to exclude Mr Long (general damages)?
[61]Sometimes such damages are described as “compensatory damages”. However, I have avoided this term given aggravated damages are also compensatory in nature.
[62]Sydney Local Health District at paragraph [78]; Anning at paragraph [179]
[63]Anning at paragraph [180]
84I am not satisfied Mr Page has suffered any direct financial loss as a result of Mr Long’s trespasses onto the property. The hog deer on the property were wild animals and did not belong to Mr Page. Ms De Visser’s evidence was that the Ranch was currently booked out to 2030. They have not lost any paying customers from Mr Page’s trespasses. Although Mr Page gave evidence of having purchased additional security cameras because of these trespasses, his evidence in relation to this issue was vague and confusing. It was not clear exactly what had been spent, and when, nor whether it was specifically Mr Page’s conduct which led to the expenditure.
85However, Mr Long has plainly appropriated to himself a benefit to which he was not entitled – the right to enter the Ranch. Accordingly, this case falls within the first category identified by Santow JA in Tellamist. A plaintiff is entitled, under this head of damage, to claim a reasonable charge for the use of the land which Mr Long appropriated to himself without consent. This requires the Court to determine the value of the benefit which Mr Long wrongfully appropriated to himself.[64]
[64]Sydney Local Health District at paragraphs [94]-[114] and cases referred to therein.
86Valuing Mr Long’s use of the Ranch, on the two occasions I have found he trespassed upon it, is difficult. It was clear from Mr Page’s evidence there was no price he would have accepted to permit Mr Long’s entry onto the Ranch. There was no evidence of the market value which would have been paid for Mr Long’s trespasses. I do not accept that $6,500 per hog deer killed is an appropriate value to ascribe. First, I am not satisfied Mr Long actually killed any hog deer during the course of his trespasses. Second, the $6,500 fee which Mr Page and Ms De Visser charge hunters to visit the Ranch is a fee for the provision of food, guiding and accommodation, not a fee for killing hog deer. This does not equate to what Mr Long appropriated by his trespasses.
87Nevertheless, what Mr Long appropriated to himself clearly was of value. Mr Page is entitled to have his right of property vindicated by an award of damages.[65] Mere nominal damages are not sufficient. The difficulty assessing value does not excuse the Court from the obligation to do so. In the circumstances, it is reasonable to assess the damages for each trespass at $5,000 per trespass, giving a total of $10,000 for general damages.
[65] Plenty v Dillon (1991) 171 CLR 635 at 655 (per Gaudron and McHugh JJ)
Should the award of damages be increased for aggravated or exemplary damages?
88Aggravated and exemplary damages have different underlying rationales, with aggravated damages being compensatory in nature, and exemplary damages being punitive in nature. However, in the present case, there is an overlap in the factors which are relevant to both forms of damages. The Court must take care not to engage in double punishment. It must also have regard to the amounts awarded as general damages and aggravated damages when assessing exemplary damages.[66] Given this, while acknowledging the very different underlying rationale for aggravated and exemplary damages, I have ascribed a single sum to account for both aggravated and exemplary damages for each of the two trespasses.
[66] Sydney Local Health District at paragraph [70]
89In relation to the December 2019 trespass, I was not satisfied Mr Long shot a hog deer on the Ranch. However, I found that he was a knowing participant in a hunting group which illegally, and without Mr Page’s consent, shot at least two hog deer on the Ranch. He posed for photos with the dead deer, including a shot which showed a rifle fitted with a suppressor in the frame. He used these photos to boast of poaching to Mr Young and Mr Scott. He also actively encouraged Mr Young to engage in illegal hunting. He did so to boost his ego and in the hope of financial gain in the form of clients for his guiding services and high-fence shooting of deer on his property.
90In relation to the December 2020 trespass, I was again not satisfied Mr Long actually shot a hog deer. However, either he did so (illegally and at a time when he did not have a firearm licence), or he participated in a group which did so (illegally and without Mr Page’s consent). He used photos of the deer shot to boast to Mr Scott of poaching in the hope of financial gain.
91His conduct in both December 2019 and December 2020; and his subsequent boasting of his participation:
(a) undermines government regulation of hog-deer hunting;
(b) undermines firearms regulation;
(c) violates Mr Page’s right to control who enters the Ranch and what they do while there; and
(d) directly threatened the safety of Mr Page and his family members and interferes with their use and enjoyment of the land.
92I am satisfied that Mr Page and his family members feared for their safety upon discovering the hog deer carcasses in early 2021. I am also satisfied that it was entirely reasonable for them to hold this fear. It was even more reasonable for them to be fearful of their safety upon seeing a photo of Mr Long on their land, with a dead deer and a rifle fitted with a suppressor in the foreground (Figure 2). The thought that an armed man or men might be roaming the Ranch, illegally shooting hog deer with a rifle fitted with a suppressor, when they and their family members were going about their activities, is terrifying.
93Ms De Visser’s evidence of the emotional impact of Mr Long’s trespass on herself and her granddaughter was particularly compelling. I accept her granddaughter no longer feels safe to walk around the property and Ms De Visser’s use and enjoyment of the property has been severely impacted. I also accept her anger and frustration at the trespass has been increased by Mr Long’s pre-emptive post on Facebook that he hoped her hog dogs were safe. I do not see the relevance of the fact that her son has previously been convicted of poaching to the assessment of damages for Mr Long’s trespasses.
94Mr Page and Ms De Visser’s activities on the Ranch (encouraging the growth of the population of an introduced species through, among other things, the planting of non-native vegetation) cannot fairly be described as “conservation”. It is also unlikely, as experienced hunters, they are particularly sensitive to the sight or thought of dead deer. However, I do accept they felt anger at the violation of the Ranch and their careful management of the wild hog deer who visited it. I also accept they felt anger and distress at the killing of at least two deer with whom they had formed a relationship.
95I am satisfied that Mr Long’s trespasses caused severe fear, distress and outrage to Mr Page and his family. The value of the Ranch to Mr Page and his loved ones was primarily recreational. Mr Long’s trespasses had a severe impact on the enjoyment that they experienced from being on the Ranch. Mr Page is entitled to be compensated for this.
96Further, this was not some light-hearted boy’s own adventure, where the only victims were a few feral deer. The conduct engaged in by Mr Long, and any associates who accompanied him, was callous, dangerous and (in the case of anyone who discharged a firearm) criminal. Mr Long’s conduct is deserving of strong denunciation and punishment by the Court. The damages awarded against him should account for the need to clearly and specifically deter him from engaging in such conduct in the future. The fact that others may also have engaged in such conduct does not ameliorate the need for aggravated and punitive damages in this case. Indeed, an award of punitive damages may also serve the purpose of deterring others from engaging in similar conduct.
97The amount awarded for general damages should be increased by $55,000 for each trespass so that the total amount awarded adequately:
(a) compensates Mr Page for the fear, distress and outrage experienced by Mr Page and his family; and
(b) punishes Mr Long for his conduct and deters him and others from engaging in similar conduct in the future.
Judgment
98I have awarded a total of $60,000 in damages for each trespass. Accordingly, judgment is given against Mr Long for damages of $120,000.
99I will hear from the parties on the question of costs.
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