Perrett v Williams - [2003] NSWSC 381

CITATION: Perrett v Williams [2003] NSWSC 381

HEARING DATE(S): 25/2/03, 3/3/03-7/3/03, 10/3/03-12/3/03, 14/3/03, 19/3/03,

JUDGMENT DATE:
9 May 2003

JUDGMENT OF: Wood CJatCL at 1

DECISION: Verdict and judgment for the defendants. Further arguments as to costs to be heard.

CATCHWORDS: NEGLIGENCE - Statutory Body - Duty of Care - Tort of Intimidation - Misfeasance in a Public Office - Trespass to Goods and to Land - Whether Vicarious Liability of the Boards and of the State.

LEGISLATION CITED: Clean Waters Act 1970
Fisheries Management Act 1994
Law Reform (Vicarious Liability) Act 1983
Local Government Act 1993
Prevention of Cruelty to Animals Act 1979
Rural Lands Protection Act 1989
Stock Diseases Act 1923
Veterinary Surgeons Act 1986

CASES CITED: Allen v Flood [1898] AC 1
Anns v Merton London Borough Council (1978) AC 728
Australian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1987) 161 CLR 98
Bayliss v Cassidy SC QLD, 18 September 1998
Brodie v Singleton Shire Council (2001) 206 CLR 512
Burnie Port Authority v General Jones Pty Limited (1994) 179 CLR 520
Burns v MAN Automotive (Australia) Pty Ltd (1986) 161 CLR 653
Caparo Industries Pty Ltd v Dickman (1990) 2 AC 605
Commonwealth of Australia v Connell (1986) 5 NSWLR 218
Commonwealth v Introvigne (1982) 150 CLR 258
Crimmins v Stevedoring Industry Finance Corporation (1999) 200 CLR 1
Deatons Pty Limited v Flew (1949) 79 CLR 370
Dorset Yacht Co Ltd v Home Office [1970] AC 1004
Fox v Wood (1981) 148 CLR 438
Garrett v Attorney-General [1997] 2 NZLR 352
Graham Barclay Oysters Pty Ltd v Ryan (2002) 77 ALJR 182
Henville v Walker (2001) 206 CLR 459
Hill v Chief Constable West Yorkshire [1989] AC 53
Hill v Van Erp (1997) 188 CLR 159
Hillman v Black (1996) 67 SASR 490
James v The Commonwealth (1939) 62 CLR 339
Julius v Lord Bishop of Oxford (1880) 5 App Cas 214
Kondis v State Transport Authority (1984) 154 CLR 672
Little v The Commonwealth (1974) 75 CLR 94
Lloyd v Grace Smith & Co [1912] AC 716
Morris v CW Martin & Sons Limited [1966] 1 QB 716
New South Wales v Paige [2002] NSWCCA 235
Northern Sandblasting Pty Ltd v Harris (1996) 188 CLR 313
Northern Territory v Mengel (1995) 185 CLR 307
Perre v Apand Pty Ltd (1999) 198 CLR 180
Plenty v Dillon (1991) 171 CLR 635
Pyrenees Shire Council v Day (1998) 192 CLR 330
Romeo v Conservation Commission of the Northern
Territory (1998) 192 CLR 431
Rookes v Barnard [1964] AC 1129
Rowling v Takaro Properties Ltd [1988] AC 473
Sanders v Snell (1999) 196 CLR 329
Scott v Davis (2000) 204 CLR 333
Smith v Leurs (1945) 70 CLR 256
Sorrell v Smith [1925] AC 700
SPRL v Danubian Trading Co Ltd [1952] 2 QB 297
State of New South Wales v Lepore (2003) 77 ALJR 558
Sullivan v Moodie (2001) 75 ALJR 1570
Sutherland Shire Council v Heyman (1985) 157 CLR 424
Tame v NSW (2002) 76 ALJR 1348
Three Rivers District Council v Governor and Company of the Bank of England (No 3) (2000) 2 WLR 1220
Trobridge v Hardy (1955) 94 CLR 147
Yuen Kun Yeu v Attorney General of Hong Kong [1998] AC 175
X (Minors) v Bedfordshire County Council (1995) 2 AC 633

PARTIES :
Leslie John Perrett (P1)
Mary Genevieve Perrett (P2)
Wayne Richard Williams (D1)
Moree Rural Lands Protection Board (D2)
John Hardie Smith (D3)
John Forbes Montgomery (D4)
Glen Innes Rural Lands Protection Board (D5)
State of New South Wales (D6)

FILE NUMBER(S): SC 21224/95

COUNSEL: Mr A McInnes QC (Plaintiffs)
Mr P Taylor SC (Defendants) with Mr P Green

SOLICITORS: James Solicitors (Plaintiffs)
NSW Crown Solicitor (Defendants)

- 220 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

WOOD CJ at CL

Friday 9 May 2003

21224/95 Perrett v Williams

JUDGMENT

1 HIS HONOUR: This is a case about a mob of sheep which, in the beginning numbered about 5450, leaving aside lambs, but which, during the 1991-1993 period, suffered a series of trials and tribulations leading to their early demise, or their forced sale without other than minimal return. The plaintiffs, who were the owners of these sheep, attribute their successive misfortunes to the actions of the defendants, which they claim to have been malicious, vindictive, careless and unprofessional.

2 At the relevant times, the first and third defendants held office as rangers/inspectors, and the fourth defendant held office as a veterinary officer. They were attached respectively to the Moree and Glen Innes Rural Land Protection Boards, which were also joined as the second and fifth defendants. The remaining defendant is the State Department of Agriculture.

3 The defendants reply that they acted, at all times, in good faith, humanely, and professionally in their dealings with the plaintiffs, and with their sheep.

4 The fault, they assert, lay in the hands of the plaintiffs for failing to ensure that the mob was free of disease, and for failing to properly manage, water, and feed the sheep, in their later travels.

5 The matter is of some complexity, no less so because of the many movements of the sheep, following their assembly and transport to the travelling stock reserve (TSR) near Moree, and the many detention orders, stock movement orders, and quarantine notices, which thereafter accompanied them.

6 It also has some legal complexity, in so far as the plaintiffs allege against the defendants the torts of negligence, misfeasance in public office, intimidation and trespass to goods and to land. In reply, the defendants place in issue every allegation made of misconduct or fault, and rely upon statutory defences dependent upon the exercise of their powers in good faith.

7 The plaintiffs claim for damages is no less complex, since they seek ordinary compensation for wasted costs of transport and treatment of the sheep; for loss of profit opportunities in their fattening and sale, along with that of their progeny; for the forfeiture of one of their properties, and the locking up of another property as the result of the actions of their banker when, due to the financial losses associated with the mob, they were unable to meet their financial commitments to it; as well as aggravated and exemplary damages.

A. FACTS

8 The plaintiffs together were the owners of five properties in the Red Range and Pinkett Districts, namely "Rosemeadow", "Nassau", "Yarrow Creek", "Abbotsford" and "LL Ranch", the combined area of which was in the order of 813 acres. The first plaintiff Leslie John Perrett (usually known as Joe Perrett) was an experienced cattle man and sheep farmer, who had been in the habit of buying and selling stock, and running them on travelling stock routes, as well as on the properties mentioned. Mrs Perrett said that she was similarly experienced in sheep work and farming, and added that, with her husband, they had been successful in taking stock onto stock routes. She claimed that they had paid off "Nassau" and "Rosemeadow" and were reducing the "Abbotsford" loan, when they assembled the mob of sheep with which this case is concerned.

1. Mr Perrett’s relationship with the Defendant Smith

9 Joe Perrett said that prior to the events of immediate relevance for these proceedings, he had encountered personal difficulties with the third defendant, John Hardie Smith, which he suggested were of a vindictive nature. They encompassed, on his account, the following incidents:

(a) In the mid to late 1970's he said Mr Smith had constantly approached him while he was on stock routes with cattle, requesting production of his permits and requiring the stock to be counted, so as to check the numbers against the permits. On one such occasion at the Dunbas Reserve on the Grafton Road he allegedly threatened court action, and the imposition of a fee for agistment in relation to what he claimed to be excess stock, but then, having commenced the necessary count, he abandoned it, without any further action. Mr Smith denied this allegation, although he acknowledged having spoken to Mr Smith on one occasion when he had failed to move his cattle in accordance with the requirements of a travelling permit, and instructed him to move them on the following day.

(b) On one occasion, in 1977, he said, Mr Smith remarked to him " you are rat shit as far as I am concerned and I'll get you ". Allegedly this followed the dismissal of a charge brought in the Local Court against Mr Perrett for not remaining overnight with the cattle at Beardy Waters which he had on a TSR near Grafton, which led, on his account, to Mr Smith being criticised by the Magistrate for bringing the charge. Mr Smith denied this allegation, and said that he had never given evidence against Mr Perrett, and had never been criticised by any Magistrate.

(c) In the late 1970's/early 1980's, he said, Mr Smith repeatedly harassed him by checking his sheep purchases through agents and on occasions quarantining them for lice. On one such occasion, he said, Mr Smith refused to let him dip some quarantined sheep at a neighbour’s property, insisting instead that they be done, in a way that was physically laborious, in a bathtub. Some days later, he said Mr Smith phoned him, at a time when a creek on “Rosemeadow” was in flood, requiring an inspection. In attempting to comply with this demand, he said, twelve sheep drowned. However, he said, when Mr Smith arrived at the property, he released the sheep without inspecting them. Mr Smith denied harassing Mr Perrett and said that at sales he was required to inspect at least seven sheep in each pen.

(d) In mid 1986, he said that Mr Smith inspected some Merino ewes which he had just purchased at the Inverell sheep yards, and had taken to the Glen Innes saleyards, where he had intended to make further purchases. According to him, Mr Smith claimed to have seen lice on one of the ewes which he then jumped on, having thrown her to the ground, occasioning the animal fatal rib and internal injuries. On the same day, he said, Mr Smith announced publicly that he could not remove the remaining sheep but had to sell them, they being available only for slaughter in NSW. On the following day, he said, Mr Smith quarantined all his sheep at “Abbotsford”, which were ready to go west on the stock route, alleging that there were lice in the Inverell sheep. Thereafter, he said, Mr Smith refused to inspect these sheep, or to clear them, until it was too late to send them away. These events, he claims, occasioned him financial losses. Mr Smith said that if sheep were diseased it was his duty to require the agent selling the sheep to make an announcement of this kind. In that circumstance, he explained, Mr Perrett had the option of returning the stock to the property of origin or selling them at auction for slaughter. He did not recall whether he had quarantined the sheep, on this occasion, but said he would not have done so had they been dipped. He denied mistreating the ewe.

getting even with [him] over a petition for his dismissal”

10 No documents were produced evidencing any such events. In particular no detention or quarantine notices, or reports of inspections were tendered, relating to this period, other than a quarantine notice dated 14 February 1990, relating to “Abbotsford”, which had been signed by Mr Montgomery.

2. The 1991 – 1993 Events

11 The events which are of immediate concern for these proceedings, conveniently fall into six separate time frames. These events span a period, which is now in excess of 10 years, with obvious problems in witness recollection. To some extent however, their reconstruction is aided by contemporary documentary records.

12 In view of the issues which arise, and the stark differences between the evidence led in the respective cases of the plaintiffs and the defendants, there is no option other than to set out the events alleged, and the evidence relating to them, in some considerable detail. In this regard, I have endeavoured to reconstruct the versions advanced by the various witnesses and parties whose evidence was placed before the Court in the form of affidavits and also oral testimony. Much of that material was repetitive and argumentative, and some of it amounted to submissions, or hearsay observations, rather than evidence in admissible or relevant form. Being tendered subject to relevance, I have confined this summary, lengthy as it is, to assertions of fact offered in proper form.

(a) Early 1991 to 1 October 1991 - Entry of the mob upon the stock route until their detention and removal

13 Between early 1991 and early June 1991, the plaintiffs assembled a mob of about 6254 sheep including Merinos, Border-Leister/Merino crossbred wethers and young ewes. The larger part of this mob was purchased through the Armidale, Guyra and Glen Innes sale yards at an average price of $0.50 to $3.00 per head. Others were purchased through the Dorrigo Abattoirs buyer when it lost an order and had, as a result, 1000 surplus sheep. The balance were already held on “Nassau”, “Rosemeadow” and “Abbotsford”. They also purchased some 14 rams which were put with the ewes, leading to them lambing in about September 1991.

14 The Perretts’ intention was to take 5450 of the sheep to Moree on the stock routes, and in due course to sell them. The balance of 804 of the sheep were to be left in Glen Innes on agistment.

15 Mr Perrett said that, a neighbour, Darryl Meehan, of "Glen Athol", Red Range, who had agreed to allow his shearing shed, yards and dip to be used to shear and dip the sheep, and Les McRae, who had agreed to assist as a drover, each arranged to add some of their own sheep to the mob, when it went on the road.

16 In about May 1991, arrangements were made to shear and dip the plaintiffs' sheep, along with the sheep of Mr Meehan, on “Glen Athol”, preparatory to them being taken onto the stock route. The dipping with Top Clip Blue Dip was uneventful in the sense that there were no losses, according to each of Mr Perrett, Mr Taylor and Mr Meehan, who attended to the task. It was Mr Meehan's evidence that the sheep, which he wanted to add to the mob, were crossbred ewe lambs which needed to grow out a bit. They were branded with an "S" over a wide "V".

17 Mr Perrett said that in May 1991, he spoke to the first defendant, Wayne Richard Williams, who was a ranger with the Moree Rural Lands Protection Board, seeking authority to put the sheep onto the stock route in June. He said that he received an indication that this would be all right, and that Mr Williams would call out to issue a permit.

18 On 16 June, Mr Perrett said, he went out with Mr McRae to inspect the Colly stock route, after speaking to Mr Williams, who, on his account, made no mention of any need for any clearance from a ranger or veterinarian before the sheep were taken to the TSR.

19 Mr Williams however, gave a somewhat different account. He agreed that he received a telephone call from Mr Perrett, but described the conversation in the following terms:

I’m Les Perrett. I’m a stock owner at Glen Innes. I’m after feed for my stock. What’s the feed like west of Moree?’

I said words to the following effect:

‘It’s good for this time of year. Come and have a look at the feed. Before they go onto a truck you need to get a clearance from the Ranger or Vet from your local Lands Protection Board. We need verification that the sheep are free from disease before they are loaded onto the trucks’.

He said words to the following effect:

‘No problem. I’ll get that done and talk to you in a couple of weeks’.”

20 Mr Williams added that he did not hear anything further from Mr Perrett for about a week until he found out that the sheep were already unloaded onto the TSR without confirmation of their disease status.

21 Between 23 June and 30 July 1991, Mr Perrett said that he sent by road transport 5750 sheep and 248 lambs out to the Moree-Collarenabri stock route on agistment. The transport costs of Stockmaster Pty Limited (for 5516 sheep) were invoiced to Mr McRae, amounting to $6514.40. Mr Scherf of Stockmaster said that he observed that the sheep which were carted had been shorn. Mr Perrett suggested that thereafter he paid fees to the Moree Board for 4,750 sheep, there being no charge for a further 1000 lambs.

22 The movement of the sheep out to the stock route was staggered, the later arrivals being taken to Bellarah Hall, because of the numbers involved and their different properties of origin, and also as a result of the first of the detention orders which came to be issued by Mr Williams.

23 Although there was some uncertainty as to the dates, it appears that Mr Perrett and Mr Cattell took on the responsibility for droving the first part of the mob to arrive on the stock route. On 25 June, Mr Perrett said, Mr Cattell went into Moree to obtain the necessary permit. It came to be issued in the name of Mr McRae. It seems that both the Perretts and Mr McRae also had cattle on the route.

24 On 25 June, Mr Perrett said Mr Williams came out to inspect the 3,779 sheep, at Whittakers Lagoon. He apparently found them to be free of lice and issued a travelling stock permit which, on its face, permitted their movement for about 50 kms from Whittakers Lagoon to Bellarah Hall. It was Mr William’s evidence that Mr Perrett nominated Mr McRae as the owner of the sheep this day, and suggested that Mr Cattell was in charge.

25 On 26 June, Mr Williams came across the sheep again and issued a detention order (6555) requiring that they be detained at “Whittakers Lagoon and 2 km east of the yards”, the reason being recorded as "suspicion of footrot to be checked". On the following day, he said, he went out to the TSR and found no one in attendance with the stock. He went looking for Mr Perrett and Mr Cattell, and on finding them at the Combadello Holding Yards, he reminded them of their obligations. The pattern of leaving the sheep insufficiently attended, he said, continued during their time on the TSR.

26 On 28 June Mr Williams and a labourer (Mr McGowan) from the Moree Rural Lands Protection Board went out to the TSR, along with "Mick" Beatty, the Moree senior ranger, and Bill Hetherington, District Veterinarian, and examined the sheep for footrot and lice. Mr Williams allegedly said to Mr Perrett that he had to inspect the sheep, because Ranger Smith from Glen Innes had told him that his sheep had footrot. Mr Williams said that the inspection had been arranged because the Glen Innes region was a footrot area. Each of Messrs Williams and Smith said that they had not previously known one another, and had not spoken directly about the Perretts’ sheep.

27 The examination which was conducted, according to Mr Perrett, showed that some of the sheep had foot abscesses, due to having been carted to Moree in trucks which had not been washed down properly. The condition discovered was not footrot and was not a notifiable disease under the Stock Diseases Act. Mr Beatty confirmed that no footrot was discovered, as did Mr Hetherington who explained that the sheep were inspected for footrot "as per the Board policy", since they had come onto the TSR without any form of documentation or inspection at Glen Innes. Mr Perrett said at the trial that there was an argument between Mr Williams and Mr Hetherington in relation to this inspection, insofar as Mr Williams was pushing Mr Hetherington to examine more and more sheep. Mr Williams denied that this had been the case, asserting that he had just begun to work with the Board, that he had no experience with footrot, and was just one of the workers there to assist the District Veterinarian.

28 In the meantime, on 27 June, an inspection was made by Mr Smith in respect of the 650 lambs, which were still at “Glen Athol”, for footrot. Specimens taken were tested and later reported as not revealing that condition. Pending the test results, a 40-day quarantine order (B30331) was issued by Mr Smith, over “Glen Athol”. A release order was issued on 1 July 1991 by Mr Montgomery. These sheep then went out to the stock route. Mr Meehan said that thereafter he went out to the stock route for a couple of days "to check up on things and to give the Perretts a hand".

29 In his report of 27 June, Mr Smith noted that Mr Hetherington had advised of the arrival, at Moree Travelling Stock Reserve, of a mob of sheep from the Glen Innes region, in which suspect footrot had been found. He reported that his own inquiries had revealed that there were 4379 sheep in the mob, which had been purchased at various saleyards, and that there were a further 650 sheep still at “Glen Athol” which had been due to follow the sheep that had already been moved.

30 He recorded that, in the course of a conversation and a formal interview with Mr Meehan, the latter had indicated that the sheep had originally been purchased by “his cousin” Mr Perrett, and by Les McRae, originally to sell to Dorrigo Abattoirs. When that sale had fallen through, he said that they had decided to shear and dip the sheep on “Glen Athol” because they were suspected of having lice, and then to take them to the Moree TSR. Mr Perrett denied that there was any blood relationship between himself and Mr Meehan, or that the sheep had been purchased by him for sale to the abattoirs. In fact, he said that he had purchased them when an order which the abattoirs had received had been cancelled.

31 Mr Smith said, in his statement, that he had inspected 17 sheep out of a mob of 650 sheep on “Glen Athol” following the telephone call from Mr Hetherington, and that although he had not seen footrot, there were some lesions and underrunning, which had led him to take the smears for testing, which later proved negative, and to issue the quarantine notice pending the laboratory results.

32 Notwithstanding the sequence of events involving the detention of the Moree sheep on 26 June, and the quarantine of the “Glen Athol” sheep on 27 June, Mr Perrett maintained his insistence that Mr Smith had put into Mr Williams’ mind, the detention of the Moree sheep for footrot.

33 On 2 July 1991, noxious animal inspector Robert Lynn and Mr Smith carried out an inspection of the 300 or so sheep on “Abbotsford”. These appear to have been 266 sheep which had been purchased at Glen Innes Saleyards in April, and 102 shorn and dipped sheep which were not eating well, that had been transferred to “Abbotsford” from “Glen Athol” on 1 July, none of which, on Mr Perrett’s account, had lice or footrot.

34 Mr Smith, however, submitted a report to the District Veterinarian advising that the sheep there were in a low condition and appeared wormy, and that some (which he identified as short wooled sheep) showed a “heavy infestation of lice”, as well as some foot abscesses, although they did not appear to have footrot. He advised that the subdivision and boundary fences were not stock proof, and that there was not adequate sheep feed on the property. The report also recorded that complaints had been made about Mr Perrett's sheep "roaming the roads and streets of Red Range."

35 Mr Smith said that this muster and inspection had followed upon reports from Messrs Lawler and Gallagher to the effect that the plaintiffs’ sheep were wandering around the village and seemed to be lame. Mr Perrett said that there could not have been any such complaints as there were no sheep on “Abbotsford” until the night of 1 July when Mr Meehan delivered some of the “Glen Athol” sheep there.

36 A fax message was sent to Mr Hetherington, and to the rangers at Moree, asking that they advise Mr Perrett that he had to shear and dip his sheep, on “Abbotsford”, by 10 July, after obtaining an order from an inspector to move them to a shearing shed and dip.

37 A footnote was added to this report, on 8 July 1991, and sent to RSPCA Inspector Harmer by Mr Smith, recording that on re-inspection, the sheep appeared to be starving, and that no attempt was being made to feed them. Mr Williams’ diary would suggest that this inspection had occurred on 2 August at Moree.

38 In the meantime, on 4 July, a letter was sent by Mr Hetherington to Mr King, the Director of Veterinary Services at Newcastle, advising that approximately 3749 sheep had been transferred to the TSR west of Moree at Whitakers Lagoon without notice, and without clearance from the Glen Innes Board, as a consequence of which they had been detained. It was noted that the sheep had been inspected on 28 June and that they would be reinspected in approximately 2 weeks.

39 A stock movement order (3401) was issued by Mr Smith on 12 July 1991, to permit movement of the “Abbotsford” sheep to “Glen Athol” between 15 and 19 July 1991 to permit the shearing and dipping which he required. The order specified that the sheep with 3 months or more wool were to be shorn, and that all sheep were to be dipped by 4 August 1991, subject to the weather, and the condition of the sheep meaning that they were not at risk.

40 Mr Perrett said that these sheep had not needed to be shorn, but some other woolly sheep, already on “Glen Athol”, were shorn and dipped along with them, and then sent to the stock route between 28 and 31 July. The balance were sent on agistment to "Yarrow Lea". Mr Perrett said that he believes that the balance were inspected again by Mr Smith before being sent out to the stock route. Mr Smith agreed that he had done so, at Mr Meehan’s request.

41 Mr Perrett also said that towards the end of July, Mr Hetherington, Mr Beatty and Mr Williams carried out a second inspection of the sheep on the stock route, at the Meroe Yards for footrot and cleared them of that problem. Each of Mr Hetherington, Mr Williams, and Mr Beatty confirmed this inspection, which they dated as occurring on 2 August, as disclosing no evidence of footrot. Mr Hetherington added that their role, in relation to each inspection was to look for footrot, and not for lice. It was apparently standard practice for there to be a second inspection where there was a suspicion of footrot.

42 At some point in July or August, Mr Perrett claimed, he received a request for a dozen lambs from Mr Williams, who mentioned his casual weekend work as a butcher. Mr Perrett's refusal of his request, he indicated, was received by Mr Williams with ill grace. Mr Williams denied that any such conversation occurred, and Mr Perrett accepted that he had made no complaint about it.

43 Mrs Perrett said that she joined the mob at the end of July, just before the sheep on Mr Meehan's property arrived. Thereafter she helped with the droving.

44 In a letter dated 12 August, Mr Hetherington advised Mr King that the standard follow up inspection on 2 August had revealed no evidence of footrot. He added that the sheep had put on a "remarkable amount of condition since they [had] been on the TSRs' around Moree", and that, in his opinion, they did "not present a risk to the local sheep" and should "be allowed to use the TSR as normal".

45 Mr Perrett said that during August he left the sheep in the care of Mr McRae, and a lady who seems to have gone by the name "Flo", while he went off droving the cattle that they also had on the TSR. Mrs Perrett agreed with this, saying that she accompanied her husband.

46 The Perretts said that, in September 1991, Mr McRae and "Flo" left the sheep unattended, as a consequence of which they managed to become dispersed over about 15 kms of the stock route, even though they were meant to be kept in one flock. The Perretts left the cattle droving job and returned to the Moree stock route where, over several days, they rounded up the mob and yarded them at "Boorilook".

47 Mr Perrett said that he dismissed Mr McRae and "Flo" on 12 September 1991, and that he was assisted thereafter by Jim Campbell with the droving, having taken him out to “Boorilook” on the morning of 13 September. During the early hours of 13 September, he said, he moved a flock of about 3000 sheep on the stock route into the Meroe Holding Paddock, which was about eight hectares in area, with a drinking trough and windmill.

48 Mr Beatty said that on this date he received a report of unattended sheep straying on Colli routes, and of sheep being locked in a yard on the TSR. He went out to "Boorilook" where he found a large mob of sheep around the public watering hole. Mr Williams’ diary would tend to confirm that Mr Perrett was back with the sheep at “Boorilook” by this time.

49 Mr Beatty recorded that Mr Campbell informed him that Mr Perrett was mustering the sheep, and that Mr McRae had been doing it, but had left on Thursday, after an argument with Mr Perrett. He noted that he had eventually found Mr Perrett at Bullarah Hall and had instructed him to get the sheep together by Monday, advising that otherwise they would be impounded. The sheep, he said, were scattered over 15 miles of the route between Brown Creek and "Meroe". According to Mr Beatty, he was informed by Mr Campbell that he understood that he was working for Mr Perrett, and believed the latter to be the owner of 94% of the sheep, with Mr McRae owning 700 head. That version in fact accorded with Mr McRae's evidence, although he said, additionally, that he had paid for the transport costs and expected some of the profits from the venture for his part in acting as drover, as well as some remuneration or expenses while he was on the road.

50 However, Mr Beatty said that when he later asked Mr Perrett who owned the sheep, he had replied "Les McRae. He owes me money so that's why I'm looking after the sheep". He made contemporaneous diary records in relation to these conversations. Mr Perrett said that he met with Mr Beatty, at Mr Clarke’s caravan, and described him “waving his hands… and shouting ‘muster those sheep up and take the damn things home or there will be no feed left in a fortnight.”

51 Mr McRae gave evidence in relation to the difficulties, which he claimed had caused him to walk off the route, and to leave the sheep unattended. In substance he claimed that he had not been recouped for carting the sheep out to the route; that Mr Perrett was not pulling his weight assisting in the droving, having preferred to go off on a more lucrative drive with the cattle; and that he was not being paid for the work he was doing. In his words, he was "sick and tired" of the situation and simply decided to walk off, after letting the sheep out. He denied that he had been dismissed by Mr Perrett, as the latter asserted. He also denied that he had been receiving payment from the Perretts in the sum of $300 per week.

52 It was his account that he had found lice in some young, stray and unshorn Tukidale sheep (a New Zealand breed of sheep used for the production of carpet wool), which had joined the mob a few days earlier. He was unaware of who it was that was running Tukidale sheep in the area and was not asked whether they were pure bred or cross bred, or what it was in their appearance that led him to identify them as Tukidales. He did however claim that some person, who he was unable to identify, arrived to collect them from the mob when the sheep were moved off the stock route. No other witness called by the defence or by the plaintiff made any mention of seeing Tukidale sheep in the flock. Mr McRae said that his observation of there being lice infestation in these sheep was related to the appearance of their wool, which seemed to be rubbed or pulled.

53 He acknowledged reporting the matter to the Moree Board, but denied doing so out of spite, asserting that he had done so, because it was the “right thing to do”. Mr Williams agreed that he received a phone call at his home from Mr McRae, informing him that there were some stray sheep in the mob that had lice, and that they had been there for two or three days. Mr Williams’ report of 11 October would suggest that this report was made on 20 September.

54 So far as the evidence shows, no action was initiated by the Moree Board District Veterinarian, or by any inspector from that Board, to follow up any owners of Tukidale sheep in the area of the stock route. Nor was any report made of lice infestation found in any such sheep on any nearby property.

55 Mr Perrett said that, on 23 September, when the mob was about five kilometres from "Keytah", he had a visit from Mr Williams, who said that someone had reported that his sheep had lice. As a result he said he was instructed to keep them in the holding paddock overnight. "Keytah", it was established, was part of the Sundown Pastoral Company holding. It was not itself part of, or accessible from, the stock route.

56 It was Mr Perrett’s evidence that the mob did not include any stray sheep, let alone any sheep with wool, at this time.

57 On the following morning, Mr Perrett said, Mr Williams arrived with a drover, Ross Clarke. Some 40 or so sheep were inspected by them, he said, before Mr Williams asked Mr Perrett and Mr Meehan who was also present, to go to the back of the mob to hold them up. While they did so, according to Mr Perrett, Mr Williams seized out of the mob a Border-Leister-Merino-cross ewe, with a black patch over its eye, which had been shorn, and which bore the brand of Mr Meehan’s flock. It was one of the sheep which had been shorn and dipped in July and had joined the mob on or about 31 July. Mr Williams claimed that he had found some lice on the sheep, although according to Mr Perrett he declined to show them to him. Mr Perrett said that he challenged Mr Williams, suggesting that he would not know what a sheep louse looked like. Mr Williams denied this conversation.

58 Mr Meehan and Mrs Perrett broadly corroborated the account of Mr Perrett in relation to the sheep in which Mr Williams claimed to have found lice, and of the fact that the lice were not shown to them, and that they had not seen any woolly sheep in the mob.

59 Mr Meehan said that after Mr Williams left, he and Mr Perrett inspected the sheep, but found no lice on them. They each confirmed that they had seen sheep with lice in the past and knew the signs to be looked for.

60 It was Mr Williams' evidence, however, that the sheep on which he found the lice was not a shorn sheep of Mr Meehan. Rather, it was one of the half dozen stray half wool, cross bred lambs aged 5 to 8 months, which Mr McRae had informed him had joined the mob and were lousy. These were the only sheep, he said, in the mob that had any wool on them. They had not been seen by him when, on his account, they had carried out the “footrot and lice check at Whittakers Lagoon with the vet”.

61 Mr Williams said that he pointed the lice out to Mr Clarke, a drover who happened to be with him that day, and he also claimed to have pointed it out to Mr Perrett. He accepted that he did not mark it with yellow scouradle paint or ruddle. It was his evidence that he recognised sheep lice, which he described as being pale in colour at the infantile stage, and as developing, as an adult, a gold and black colour which he likened to the “Balmain football jumper”. Although he had never seen Ked, which was likened to a black tick, he was adamant that what he had seen was a louse in one woolly sheep. He said that he had also inspected some shorn sheep but did not find any lice in them. He was unable to recall whether the lice which he found were young or mature.

62 A statement made in July 1996 was provided by Mr Clarke, and he was called later to give evidence. He disclosed that he had been in the company of Mr Williams for the purpose of finding feed on the stock route for his cattle. He had little experience with sheep and had never seen sheep lice before. On his account Mr Williams caught about 3 sheep whose wool looked "rubbed". At one stage, he said, Mr Williams showed him what he claimed to be a louse on a long wool sheep. His description of the object shown to him was "something that looks like a small tick, blue white in colour", and that was moving. He had no recollection of Mr Williams specifically pointing out the object to Mr Perrett, although he said, at the trial, that he, Williams, and the other man there, were both looking at the sheep when it was let go. Mr Perrett said that Mr Clarke was back at Mr Williams’ utility when Mr Williams claimed to find some lice. He denied that any sheep showed signs of being “rubbed”.

63 Mr Perrett said that he asked Mr Williams to arrange for Mr Hetherington, the Moree veterinary officer, who he trusted, to come out and examine the sheep. He said that although he protested about the action, pointing out that the sheep had been dipped, Mr Williams issued a detention order (No 6556), dated 24 September 1991, requiring the mob to be detained at "Wathagal Canal back three kms to be yarded in water yard at night." The document added "Five days given before removal of sheep off route", and provided, as a reason for the order "Light lice infestation". Mr Williams denied that Mr Perrett made any protest or request for Mr Hetherington to inspect the sheep. Rather, he said, Mr Perrett accepted that lice had been found, and agreed that he needed to deal with the problem.

64 When Mr Hetherington did not arrive to inspect the sheep, Mr Perrett phoned the Moree office and was told that he was on holidays. Mr Hetherington confirmed, in his evidence, that he had in fact been on holidays at this time.

65 Mr Perrett said that Mr Williams indicated to him that unless the sheep were gone by 29 September, they would be shot and buried at his expense. He said that he obtained permission from Mr Boland, and from Roly Kilner, whose properties were located near Keytah, to use their facilities to dip the sheep. Mr Boland made it clear that the sheep could not be kept on his property but would have to go straight back onto the route after they were dipped. Mr Kilner, however, said to Mr Perrett, on his account, that he could agist them for the quarantine period on his property.

66 According to Mr Perrett, he pointed out to Mr Williams the dangers of trucking the sheep, which by then were lambing, back to their places of origin, and advised him of the arrangements which he had discussed with Messrs Kilner and Boland. Mr Williams, he said, insisted that the sheep be taken back. Mr Williams denied having any conversation in the terms described in this and the preceding paragraph, or having any knowledge of Mr Perrett’s approaches to Messrs Kilner or Boland. It was his evidence that he informed Mr Perrett that he could take the sheep back to the property of origin, take them to an abattoir for slaughter, or dip the sheep and take them to another property where they would need to remain for 6 weeks.

67 The dangers which Mr Perrett said that he had in mind were those associated with the crushing of the lambs in the trucks, with the likelihood of mismothering, that is, the inability to reunite any lambs surviving the trip with their mothers, and the development of mastitis in lactating ewes when they lost their lambs. He said that he also made mention of the possibility of grass tetany due to magnesium deficiency, if the sheep were locked up for any time.

68 These complaints, Mr Perrett said, effectively fell on deaf ears, as a consequence of which he made arrangements to have the sheep, which by that time also included approximately 3000 lambs, trucked out on 30 September, at a cost of $9,838.

69 By 29 September, he said, the sheep, having been contained for several days in a small area, without feed, were hungry, and he had to hire and erect some fencing, a portable yard, and a loading ramp, in order to carry out the necessary move. Mrs Perrett explained that attempts were made to draft the dry ewes, rams and wethers off the ewes and lambs, and also off Mr McRae’s sheep, although without success, due to the limitations of the makeshift facilities.

70 On Wednesday 30 September, and on Thursday 1 October, the sheep were moved from the holding paddock. Messrs Hovenden and Williams from the Moree Board, said that they were present on 30 September. There was some uncertainty, or possibly a difference, as to the precise location where the sheep were held, Mr Perrett variously indicating, that they were held and taken from Keytah, or the Wathega watering point, or Telleregeh.

71 Mr Williams said, as his diary recorded, that the sheep were held, at this time, at the 26 Mile on the Colly Road. In view of Mr Perrett’s incorrect identification of the various locations on the maps that were tendered, and Mr Williams’ greater familiarity with the Moree TSR, and the contemporary documentation, I am satisfied that his evidence should be preferred in this respect.

72 Mr Beatty indicated to Mr Perrett, according to him, that he had to get permission from Mr Smith at Glen Innes, for the sheep to be allowed back into the Glen Innes Board area, but that they had not been able to contact him. According to him, Mr Beatty instructed the drivers to take their trucks into Moree to wait for further instructions. There they waited, he said, with the sheep on board, in the hot sun, until about 1.00 pm, when they were allowed to leave for Glen Innes. Other trucks arrived at Keytah during the remainder of the afternoon and on the following day, to move the remaining sheep.

73 Mr Smith said that he received a telephone call from Mr Beatty on 30 September, advising that lice had been found in the plaintiffs’ sheep on the stock route. A fax was sent to Mr Smith from Mr Hovenden at 2.50 pm that day, advising that the dry sheep were being taken to “Nassau” and that the ewes and lambs would be trucked in the morning to “Rosemeadow”.

74 A stock movement order (No 03092) was issued on 30 September 1991 under Mr Hovenden's signature, in which reference was made to the presence of "lice infestation", and to the requirements that the stock were to be moved "to the owner's properties to be sold if possible", that the inspector at Glen Innes was to be advised on arrival, and that the stock were not to be allowed to stray from the properties mentioned, or to be moved without the written permission of an inspector.

75 A letter was also given to Mr Perrett that day, signed by Mr Hovenden, warning him of the animal welfare implications of locking large numbers of sheep in small paddocks over an extended period of time, and pointing out that the responsibility for their welfare was his.

76 The stock movement order required that 1000 lambs, and 1000 ewes and lambs, be returned to “Rosemeadow”, and that 1600 dry sheep be taken to “Nassau”. Mr Hovenden, the Senior Ranger and Supervisor of Mr Williams at the time, said that he did not himself inspect the sheep, but relied upon Mr Williams’ advice. On the same day he also issued a stock movement order (03093) to Mr McRae to move 700 of his mixed sheep back to his property at ”Beachwood-Elor", in similar terms. In each case, he said, the numbers were obtained from Mr Perrett and Mr McRae at the 26 mile PWP.

77 Mr Hovenden said that he had no association with Mr Perrett prior to these events, had never spoken to his wife and had little contact with Mr Perrett other than in relation to the stock movement orders and in relation to an attempt which had been made, at one stage, to recover travelling charges from him for the subject sheep. Mr Perrett contradicted this account in one of his affidavits, suggesting that Mr Hovenden had “often called in to see how things were going”, and had delivered a final clearance to him after an inspection at the Meroe Reserve on 2 August. In this same affidavit he asserted that his sheep were inspected “following a meeting in the Board office with Mr McRae when he asked them to quarantine the sheep to get even with me”. He also claimed that all fees due to the Moree Board were paid punctually, and that he was in fact in credit.

78 Mr Hovenden’s contemporaneous diary extracts in relation to these sheep contain the following entries:

“ WEDNESDAY 3.7.91
McRae – sheep at Whitakers.

FRIDAY 5.7.91

Jack Smith – Ross Alford Agent, Grafton
50/50 Perrett – McRae Perrett bankrupt

MONDAY 8.7.91

McRae Sheep at Wathagar.

TUESDAY 9.7.91

Went to Wathaga PWP twice to see Les McRae to get his cheque. He did not have it. – He will paid (sic) account at the office Thursday –If not paid I told him I would have to cancel the permits.

MONDAY 2.9.91
Saw Perrit (sic) at Boorilook

McRae at Bullarah.

FRIDAY 13.9.91

Mick Beatty was at Bullarah to get McRae sheep mustered.

MONDAY 30.9.91
OFM for Les Perrett – 2 trips to 26 mile -

OFM for Les McRae had to ring Armidale and Ebor.”

79 It would appear (from a letter dated 11 October 1991, sent by Mr Williams

small disagreement

was one way of getting Mr Perrett back, Mr McRae stated

“The mob of sheep were inspected for lice on the 23rd September 1991, I caught 7 to 8 sheep belonging to both men, no lice found on any of these sheep. I then caught a woolly lamb which stood out in the mob, there were 6 to 8 others in the mob. Mr Perrett said he had seen the sheep 2 to 3 days previous.

Mr Ross Clarke a cattle drover was travelling with me on that day, Mr Clarke was there when I demonstrated to Mr Perrett the lice found on the lamb I caught.

1st opening on the lamb, 2 lice found.

2nd opening, 1 lice found.

3rd opening, 2 more lice were found.

4th opening, no lice were seen.

5th opening, no lice were seen.

I then gave Mr Perrett a Detention Order and told him he was to remove the mob of inspected sheep from the T.S.R. back to the property of origin, or direct for slaughter within seven days. Mr Perrett said he would make a couple of phone calls that night to Guyra and Kilkoy Abattoirs.

I called in on Mr Perrett on the 27th August (sic) 1991, to see how things were going, he said he couldn’t get any one to buy the sheep, the next step was to go back to his property ‘Nassau’ Glen Innes.”

80 Mr Perrett acknowledged that there had been disagreement with Mr McRae, because he had complained about Mr McRae’s sheepdog biting the flock, and because he had asked him to wait to remove his sheep until they could get to some yards to draft them off.

81 Mr Perrett accepted that he had been in a very difficult situation after the detention and Notice to remove the sheep, in that he was unable to sell the ewes with young lambs to the abattoirs, he could not safely dip the young lambs, and trucking the sheep was bound to cause deaths. The best solution, he said, would have been to agist them nearby and to dip them when it was safe to do so. However, he said, he had no choice other than to truck them back, in view of the requirement that the sheep be taken from the stock route, and in view of the refusal for them to be taken to Mr Kilner’s property. Mr Meehan similarly confirmed that newborn lambs could not be safely dipped.

82 It was Mr Perrett’s evidence that, as a result of the detention of the ewes and lambs in a paddock which he suggested was only about an acre in size, and the refusal of permission to move them to the property of Mr Kilner, there were very many deaths. He placed the number of dead sheep at Keytah at 200 ewes and 2000 lambs. Mrs Perrett described the scene as being “like a massacre, because the holding yards were full of dead lambs and some dead sheep”. They each said that they simply left the dead sheep and lambs where they lay. They did not formally report any of these losses, nor, according to Mr Perrett, was there any conversation with Messrs Beatty, Hovenden or Williams in relation to the large number of dead animals which were there for them to see. Mr Perrett acknowledged that the drovers were responsible for disposing of dead stock.

83 There was some corroboration from Mr Meehan who had gone out to assist with the return of the sheep, and from Tim Newberry who drove one of the trucks which were used to take them back, as to the presence of a large number of dead lambs in the area where the sheep were loaded. Neither made a count, but each suggested that there were in excess of 200 dead lambs in the paddock. In the case of Mr Meehan, he said that he went out to the holding yards on about 30 September to collect and take his own sheep back to “Nassau”. He said that while he was at the yards, he saw that there were many ewes lambing. He added that there were “heaps of lambs dead and dying there because they were mismothered.” He said that when he went back for a second time, on about 1 October, to take the remaining sheep and lambs to “Rosemeadow”, he saw hundreds of dead lambs which were just left there. He did not see any dead ewes or mature sheep, and he estimated the size of the holding paddock to be about 10 acres.

84 However, each of Mr Williams and Mr Hovenden denied seeing any dead sheep or lambs in this area, or receiving complaints of the kind which would have inevitably been made by adjoining landowners, or by passing drovers, had dead sheep been abandoned in any numbers on the stock route, without their carcases being burned or buried.

85 Mr Williams said, at the trial, that he had gone back to this area on a number of subsequent occasions because there were at least 3 mobs of cattle on the route at the time. On none of those later occasions did he see any dead lambs. He also noted that it would have been a significant event to find such a situation because it would have been a breach of the Rural Lands Protection Act to leave carcasses there. Mr Hovenden gave evidence to similar effect, confirming that dead sheep were not seen in the area where the sheep were held, either at this time or on the follow up check for strays.

86 Mr Beatty also said that he had not seen any dead lambs on the stock route in the relevant area during the period September to November 1991, even though he travelled along it every 10 days, nor had he received any reports from drovers, or reserve staff, of any dead sheep.

87 Mr Clarke, who had been following the Perretts’ mob, with his cattle, some 20 kms or so behind, said that when he reached the Keytah area, within the following fortnight, that he did not see any dead sheep or ewes, or any evidence thereof, in this area.

88 Similarly, Mr Joiner from Sundown, who regularly drove past the relevant areas, said that in 1991 there never were 2000 dead lambs either in the Wathega yards or in the vicinity of the 26 mile water point, indicating that such a finding would have had “enormous repercussions”.

89 Mr Perrett said that a further 500 lambs and some 300 ewes died during or as a direct result of their forced trucking back to Glen Innes, the lambs, through being crushed or because they were rejected on their return, and the ewes, because of mastitis. He estimated the value of cross breed lambs, at the time, at $50 each, of merino ewes at $30 for a live sheep and $28 for a fleece, and of crossbred sheep at $50 and $14.40 for its fleece, in each case for sheep in good condition. It was his account that the sheep had come off good pasture on the TSR and that they were in “good condition”.

90 Mr Smith denied seeing dead sheep on “Nassau” or “Rosemeadow” in these numbers on their return. While there may have been one or two dead sheep, he indicated that he would have “died of shock” had he seen such a sight and would, for health reasons, have insisted on their immediate removal by being burned or buried.

91 Mr Newberry corroborated Mr Perrett’s evidence in relation to seeing dead lambs and dead sheep at “Rosemeadow” that had come off the trucks, and lambs running around looking for their mothers. Mrs Perrett similarly said that she saw a pile of dead ewes and lambs piled up against a tree outside the front gate to “Rosemeadow”. Mr Meehan, however, recalled seeing only an odd dead lamb, observing that in the main the ewes and lambs had mothered up and were pretty safe at that stage.

92 On the Perretts’ return to “Rosemeadow” they said that they found that the property, which had a suburban holding (Crown Land) title, had been locked up by the National Australia Bank, by reason of the monies due to it. Thereafter they moved to “Nassau” which had a small, one bedroom cottage on it.

93 Mr Tim Newberry confirmed that his father, Lancelot Newberry who is now deceased, gave permission to Mr Perrett to use the facilities on “Square Range” for treating the sheep. He did not place a date on this conversation, although the statement from his father would tend to suggest that it occurred about a week after the Perretts came off the stock route. In that statement Mr Newberry senior confirmed, as did his son, in his sworn statement, that the sheep which were taken off the stock route were “in good condition” (Mr Newberry senior), or in “prime condition” (Tim Newberry).

94 Mr Perrett said that he requested permission from Mr Montgomery to move the sheep to “Glen Athol” for treatment after their return from Moree. Mr Montgomery had no recollection of any such request. He acknowledged that there was going to be a problem since “Nassau” and “Rosemeadow” did not have the facilities needed although “Abbotsford” did.

95 It may be noted that Mr Newberry senior said, in his affidavit, that Mr Smith had been unable, during 1991, to detect lice in an obviously lousy sheep on his property “Square Range”, but then, having quarantined them at his own suggestion, later released them after they had been shorn and dipped, without any further inspection. Mr Smith, however, denied this version of events, saying that Mr Newberry had contacted him indicating that he thought his sheep were lice infested. On visiting his property, he said that he immediately found lice in some sheep, whereupon he had Mr Newberry sign a quarantine undertaking, which he later released following a reinspection.

96 Mr Tim Newberry who had experience as a sheep farmer, wool classer and shearer, also said in his statement that he inspected the sheep with Mr Perrett, at the Keytah holding yards for lice, but found none. He said that he and Mr Perrett made a further inspection on 6 October 1991, of sheep on “Rosemeadow” and “Nassau”, but again they found no signs of lice.

97 It was Mr Hetherington’s evidence that once lice are found in a mob of sheep on public grounds, that is, a TSR, they all have to be removed, there being no discretionary power in this regard. As a matter of practice, however, he said the drover is given a short time to consider the available options including their return to the property of origin, their sale for slaughter, or their dipping and retention on private land for 6 weeks before clearance, at a further inspection, to return on to public ground. His evidence in this respect reflects the industry practice at the time, as noted in the publications later mentioned.

98 On 30 September, Mr Smith sent a report to Mr Hetherington at Moree, marked to the attention of Mr Beatty in the following terms:

e: your phone message of 10 am on 30th September to the fact that you have found lice infested sheep among L J Perrett’s sheep on your travelling stock reserves. You have been informed by the owner that they intend to return these sheep to the property of origin from where they were consigned to “Abbottsford” Red Range. The property consists of 111 ha with 648 carrying capacity units. When Mr Perrett consigned these sheep some months ago from “Abbottsford” to your TSR they had to be dipped due to lice infestation. The RSPCA officer, Rosemary Harmer inspected “Abbottsford”. Public streets and roads run around 3 sides of this property and are practically non-existent, some places only one wire. Many complaints were made by local landholders because Perretts diseased sheep were straying along the roads and streets in the Red Range area. To return 4000 sheep to this property would be disastrous in the extreme drought that is presently current. Mr Perrett’s other properties in the district are “Nassau” 126.2 ha, 535 carrying capacity units, and “Rosemeadow”, 41.38 ha C/C of 508 units. When Mr Perrett moved his sheep to Moree, “Nassau and Rosemeadow” were left stocked.

As the Ranger in charge of the Glenn Innes Rural Lands Protection Board Travelling Stock Routes. I have great difficulty in satisfying the need of our ratepayers for grass on Travelling Stock Reserves and Roads to allow their stock to exist, especially cattle, without bringing 4000 diseased stock back into our Board’s area.

SUMMARY

1. The Perretts’ property “Abbottsford” has not adequate boundary fences.

2. Joe Perrett has a history of not conforming with the requirements of the Act.

3. We do not want Mr Perrett’s diseased stock to be brought back into our Board.

4. If all else fails and you issue Mr Perrett with an Order for Movement returning to Glen Innes, endorse on order that all stock must be confined securely within the boundaries of his property.

4A. That the stock returning from Moree are diseased (lice infested).

5. Also endorse on the Order for movement that if this is not complied with he renders himself liable to prosecution for straying diseased stock.

I have discussed the above problem with Acting Regional Director of Veterinary Services, Stuart King.

It would be more practical to dispose of Mr Perrett’s sheep direct to an abattoirs from Moree TSR’s.

99 It is clear that Mr Smith did not welcome at all, the return of the sheep to the Glen Innes Board area, although, as he acknowledged, he could not prevent the sheep from being returned to their property of origin. It is also clear that he did not have a high regard for Mr Perrett’s management of his properties, or much confidence as to his compliance with the requirements which attached by law to those who run sheep. In his cross examination at the trial, Mr Smith explained his reluctance in relation to the return of the sheep:

I preferred not to have them at that stage. We were in drought. In the winter time, in Glen Innis (sic) being the summer rainfall, lot of graziers desperate for feed and get grazing permits on the stock route in the winter. The stock route was bare at that time and I’d preferred he’d not to come back because he mentioned he was wanting to go on the stock route when the sheep were cleared of lice. If he had of done neither his sheep or existing people on the stock route would have existed, they would have died.”

100 On 1 October, an instruction was issued under the name of Mr Montgomery, directed to Mr Smith, requiring that a close watch be kept on the sheep moved to “Nassau” and “Rosemeadow” from the stock route, that Mr Perrett be reminded of his obligations under the stock movement order, (no straying and no further movement without written permission), that there be verification, if possible, that the lice infestation was only light, and that there be an awareness of any developing welfare problems as a result of starvation. The instruction also noted that the situation should be documented or recorded from day to day.

101 It was Mr Montgomery’s evidence that they were dealing with the problem of a large number of lice infested sheep being returned to properties in the region at a time of drought, increasingly cold weather and insufficient feed supplies.

102 Mr Perrett asserted that the weather at this time of the year was the most favourable for shearing and dipping, and that there was sufficient feed available on the properties, particularly because they had been spelled of sheep for some time while they were out at Moree. He suggested that they had returned to Glen Innes in fat condition, and that the feed on “Abbotsford” which he described as “magnificent” included 31 acres of oats which had been sown on 11 May. Mrs Perrett also said that they came back in “prime condition”. It was Mr Smith’s assessment, however, that they were in “store or lower store condition” when they came back to Glen Innes, and that they deteriorated thereafter, particularly the lambs.

103 On his case, these sheep could have been shorn and dipped at “Abbotsford”, or on “Glen Athol”, or on the Newberry’s property, and then returned to “Rosemeadow” and “Nassau”, or to further agistment, before being returned to the stock route, rather than being kept in quarantine for a further 14 months or so, during which time most of them were killed or rendered valueless by the actions which were later taken.

104 According to Mr Perrett Mr McRae took his 250 head of sheep directly home to Armidale from the TSR. His sheep, he said, were in good condition and he received $12 for the lambs, $6 for the rams and $4 for the ewes, whereby, on 3 October, he sold them through the Armidale saleyards. These sheep, and his property “Beechwood”, were not placed under quarantine, even though the sheep had been included in the mob on the Moree TSR for approximately 4 months. A stock movement order (03093) was issued by Mr Hovenden in relation to these sheep, which were described as 700 mixed sheep. The order did however include requirements that they be “moved to owner’s property to be sold if possible”, and that the Armidale Board be advised of their arrival.

105 Mr McRae said that he had 700 sheep in the mob but only took back about 300 of them. The balance, he said, were taken back with the plaintiffs’ sheep. He did not support Mr Perrett’s claim that some 2000 dead lambs and 200 dead ewes were left behind. Mr Perrett denied keeping 300 of Mr McRae’s sheep, claiming that the only suggestion which he made to this effect was a claim that he was missing two ewes with lambs. Mr McRae’s sheep, he said, were very different from his, being South Hampshire rams and Merino weaner wethers.

106 Mr Williams also provided diary entries relating to the various events of relevance, between 26 June 1991 and 15 October 1991, which were broadly consistent with his evidence. He said, in his affidavit:

At no time did I feel or hold or display any bias or malice against Mr Perrett on any matter associated with them in the carrying out of my duties with the Moree Rural Lands Protection Board. I always acted on the facts and evidence before me at that time and not on what may have or not have been. I did not have any discretionary power to act in any way other than I have stated. I always attempted to carry out my duties in a professional and appropriate manner taking into account the legislative requirements and the subjective circumstances faced by the Perretts.”

107 Once the sheep were loaded on trucks for their return to Glen Innes, his involvement in the case effectively ceased. Mr Hovenden similarly had no further involvement with them, the relevant subsequent dealings being confined to Messrs Smith and Montgomery.

108 It was Mr Perrett’s evidence that he believed that Mr Williams had been out to get him, and that this was a view which he had reached at the time of the footrot inspection. He did not hold any such view in relation to Mr Hovenden, who he expected would have dealt with him fairly and honestly. He agreed that he had made no complaint to him about Mr Williams. He also agreed that he made no request of him to be allowed to leave the sheep on agistment at Moree, and made no mention to him in relation to the conversation which he said he had with Messrs Kilner and Boland.

(b) 2 October 1991 to Mid March 1992 – Management at “Nassau” and “Rosemeadow”

109 On 2 October, a report was received at the Glen Innes Board from a drover, Mr Cooke, to the effect that there were sheep, which appeared to belong to the plaintiffs, wandering unattended up and down the Pinkett Road.

110 On 3 October, Mr Smith, and a labourer, Mr Davidson, drove out to “Nassau” and reported observing 200-300 ewes moving along the road. They went onto that property, where they spoke to Mr Perrett. They returned together in the Board utility to where the sheep had been seen, observing on the way, 500 to 600 ewes and lambs strung out over 8 kilometres or so. Mr Perrett accepted that they were his sheep, and suggested that they had escaped from “Rosemeadow”, as a result of someone leaving the gate open. Mr Perrett suggested that there was a large pile of dead sheep and lambs on a contour bank at “Nassau”, where the sheep had been unloaded, and also at “Rosemeadow”, which Mr Smith saw at the time of this visit. Mr Smith denied seeing other than a few dead lambs.

111 Mr Smith conducted a formal interview with Mr Perrett at “Rosemeadow”, which was documented, concerning possible breaches of the Moree Stock Movement order (03092) in the course of which Mr Perrett agreed that he would get the sheep off the road within 4 hours. He stated to Mr Smith that he had bought 1000 ewes with lambs back to “Rosemeadow”, and 3000 sheep to “Nassau”. When asked what he proposed to do with them, Mr Smith recorded him saying that he intended to sell them, to Kilcoy, (Queensland) if he could take them across the border. Mr Smith made the following recommendations in a report which followed this attendance:

1. Mr Perrett be formally advised as to his responsibilities and obligations under the Stock Diseases Act and Regulations regarding straying stock.

2. Mr Perrett be advised to take all reasonable effective actions to ensure his sheep do not stray from any of his properties making all his boundary fences of a high sheep proof condition and chain and lock all external gates.

3. Should his sheep in the future be found to be straying outside the boundaries of his properties, he renders himself liable for immediate prosecution to the maximum of $10,000.

4. We will stretch a point and ask for special permission from QLD to have his sheep allowed to be consigned to a QLD Abattoir, subject to the Director of Veterinary Services Queensland’s approval. If Mr Perrett makes all arrangements to sell his sheep in the next week or so. To make his properties a more viable stock carrying proposition.

5. Immediate action should be taken to inform Mr Perrett of the above.

112 At this time, Mr Perrett agreed, “Rosemeadow” and “Nassau” were both in severe drought, and that there was no paddock feed available. He complained that, in this respect, Mr Hovenden had earlier misled him when, in response to his question concerning the conditions at Glen Innes, before moving the sheep back, he had said, “they were good out there”, and that he would be “all right”. Mr Hovenden denied having any such conversation with Mr Perrett.

113 Mr Perrett said that between about 4 October and 7 October he asked Mr Montgomery, on several occasions, to inspect the sheep for lice, but said that these requests were refused, even though he explained that he believed his sheep to be free of lice, and pointed out that the Bank was “breathing down his neck”.

114 On 4 October, he said, Mr Montgomery refused to inspect the sheep, observing “… I cannot undo what they did at Moree.” Mr Montgomery had no recollection of being asked to reinspect sheep that had already been inspected.

115 On 5 October, Mr Montgomery gave Mrs Perrett, at “Nassau”, two letters, the first of which contained a caution as to the need to ensure that the stock did not stray, and in this regard pointing out their obligations to make the boundary fences “of a high sheep proof condition”, and to chain and lock all external gates. The consequences of a prosecution under the Stock Diseases Act were mentioned. The letter continued:

ith much persuasion and a great deal of effort by inspectors in the Glenn Innes R.L.P.B. the NSW Department of Agriculture, official permission has been obtained to enable movement to take place. (Please apply to J. Montgomery (067)322378 before Tuesday 8-10-91 or after that date to J. Smith, Ranger or the Glen Innes RLPB office about the special conditions which must apply).”

116 The second letter constituted a warning in relation to the provisions of the Prevention of Cruelty to Animals Act, in the event of the plaintiffs failing to provide the stock with adequate grazing, supplementary feed and access to water. The letter also recorded the concerns of Messrs Smith and Montgomery “over the effects of inadequate feed being available to the sheep on (the) properties”. This letter concluded:

Clearly arrangements should be made quickly to have the sheep sent for slaughter. If you see a problem developing with sheep losses please contact J Montgomery … J Smith … or Glen Innes RLPB office).

117 By way of a footnote, Mr Montgomery recorded:

No stray stock anywhere along the route on Saturday at visit and in consequence no interview with intent to prosecute.

118 Following the 2 October conversation, Mr Montgomery said that he made some inquiries of potential purchasers for the plaintiffs’ sheep, including Kilcoy, Guyra Meat Packing Co, and Wallangara Meat Exports.

119 On 8 October, Mr Smith sent a report to the District Veterinarian at Glen Innes advising that his enquiries had revealed that Mr Perrett had not contacted Kilkoy Abattoirs, or its buyer Mr Campbell, but also noting that Mr Campbell had indicated to Mr Meehan that he would buy only if the sheep were declared lice free, in which case he would only be interested in a portion of the top crossbred lambs. Some possible alternative buyers, who had been contacted, were identified, namely Guyra Meat Packing, Wallangarra Meat Exports Queensland and Associated Buyers Brisbane.

120 A letter advising of these possible contact buyers was sent to Mr Perrett that day. Mr Perrett said that these sheep were breeding stock with young lambs and were not suitable for slaughter. He also said that Mr Smith had acted without his authority in speaking to buyers.

121 On 11 October 1991, Mr Williams formally reported to Mr King the Director of Veterinary Services at Newcastle his finding of lice in a woolly lamb which had stood out from the rest of Mr Perrett’s mob, when inspected on the Moree TSR.

122 On 14 October, Mr Smith sent a letter to the District Veterinarian, noting that the carrying rating of “Nassau” was 535 dry sheep equivalent (DSE) and that of “Rosemeadow” was 508 DSE. The report went on to note that the extra 4000 sheep would have been on the properties for a minimum of 12 days, in addition to any other sheep that had been pastured there; that it seemed very little attempt had been made to sell the sheep, despite personal representations to Guyra Meat Packing Company; and that the buyer for that company had been trying unsuccessfully to contact Mr Perrett. Mr Smith recommended that, by reason of the 400 per cent overstocking, and inability to move the sheep onto public land, for the welfare of the stock:

(a) Mr Perrett should be informed that within 7 days if he has not reduced his sheep numbers by 3500, taking into account the overstocking, and drought situation, and for the welfare of the sheep, the Chief of the Division of Animal Health will be requested for authority in the form of an Order to muster the properties and dispose of the stock.

(b) Legal action may also be considered.

123 The report was endorsed by Mr Montgomery to the effect: “Decided instead to hand the case over to the RSPCA directly”, and that it was expected that urgent action was required.

124 Mr Perrett said that, at about this time, Mr Smith informed him personally that he had to reduce sheep numbers by 3500, because he was overstocked and because there was a drought, otherwise legal action would be taken or they would be destroyed. He said that he asked for permission to take the sheep to “Abbotsford” to shear and dip them there, because he lacked the necessary facilities at “Nassau” and “Rosemeadow”, but said that this request was refused by Mr Smith, who mentioned that there were Abattoirs, to whom they had spoken, that would buy them, naming those possible buyers. Mr Perrett said that he protested, indicating that he would get nothing for the sheep while they were under quarantine, the difference, he suggested, being $7 per head as against $30-$50 per head. Mr Smith denied that there was a conversation in these terms. He did acknowledge, however, mentioning possible buyers to Mr Perrett. He said that to sell his sheep freely, Mr Perrett had only to shear and dip them. Otherwise, if untreated, he could sell them to abattoirs.

125 On 17 October Mr Montgomery arrived at “Nassau” with Rosemary Harmer of the RSPCA to inspect the sheep. According to the Perretts they were in “fat” or “fine” condition. Ms Harmer noted, however, that there were too many sheep on the property, and Mr Montgomery could not recall them being in fat condition. Mr Perrett added that he again made a request of Mr Montgomery to check the sheep for lice, but he refused to do so. Each of the plaintiffs said that Miss Harmer asked Mr Montgomery why he would not inspect the sheep. Mr Montgomery could not recall any such conversation, but conceded that he could have raised the possibility of Gordon Campbell of Kilcoy buying some of the sheep, as Mr Perrett said occurred on this occasion.

126 At some stage, during this month, there being a deal of uncertainty or inconsistency as to the sequence of events, Mr Perrett said that Mr Montgomery did call out at “Nassau”, and indicated that he would inspect the sheep if they were yarded. According to Mr Perrett, some 40 sheep were examined without any lice being found. When he asked for a clearance certificate, Mr Montgomery replied, on his account, that he could not issue one.

127 However, a report prepared later, which was signed on behalf of Mr Montgomery (dated 6 November 1991) but which, on his account, was composed by Mr Smith, confirmed the finding of a “light lice infestation” on an inspection of sheep at “Nassau”, dated, in this document, as having occurred on 17 October 1991. In his evidence he questioned this date, notwithstanding the date of the report, suggesting that in fact it was on 19 November, 1991 that he found lice on the sheep, that being a date coinciding with an article which he had caused to be published in the Glen Innes Examiner of that date.

128 He accepted that his diary for each of these days contained no mention of him attending at “Nassau”, or of finding lice on either occasion, the relevant entries for 19 November in fact suggesting that he had spent the day at the office in Inverell. He explained this on the basis that his diary was written up after the event and was not always accurate, and upon the further basis that office entries also embraced visits to properties in the area.

129 Mr Perrett said that, at some time during this month (he suggested 17 October), he pointed out to Mr Montgomery that he was being pressed by the Bank, and was relying on the sheep to pay them out. He said that he asked for permission to take the sheep to “Abbotsford”, where he had facilities to handle them, pointing out that they were in need of crutching, because of the risk of fly strike. According to him, Mr Montgomery said that he could have permission to take the fly blown sheep to “Abbotsford” by truck. Mr Montgomery did not recall this conversation.

130 A report from Mr Smith, of 22 October, suggests that he called at “Nassau” on 18 October, and informed Mrs Perrett that the District Veterinarian had advised that special permission to move the sheep on hoof from “Nassau” and “Rosemeadow” to “Abbotsford” could possibly be obtained from the Regional Director, but that all boundary fences at “Abbotsford” would first have to be made stock proof. He advised that he had informed her that when the fences had been made “completely and securely sheep stock proof”, he and Mr Montgomery would inspect them to establish compliance, whereafter Mr Montgomery would consider issuing an order for movement. The recommended movement conditions, which he noted in this letter, would be as follows:-

24 hours prior to movement, all neighbours on both sides of the road, would be notified of movement from property of origin to Abbottsford.

2. Starting time of each journey must before 7 am and completed by 6 pm.

3. Competent drovers must be in front of and behind the stock and the stock must be confined between these two drovers at no more than 1 km apart.

4. Stock must not be moved in dribs and drabs.

5. All stock from Rosemeadow to Abbottsford that you desire to move, must be moved in one movement only.

6. All stock from ‘Nassau’ to ‘Abbottsford’ that you desire to move must be moved in one movement.

7. Stock from Rosemeadow and Nassau unless you desire to move them on the same day to Abbottsford must have separate Order for movements and separate notification to those neighbours between those properties and Abbotsford.”

131 A copy of this letter, Mr Montgomery said, was sent to Mr Perrett, it being a “key requirement” for any move of the sheep to “Abbotsford”, that there be a repair and upgrading of the perimeter fencing to prevent “lice affected sheep straying.”

132 Mr Perrett said that, following his discussions with Mr Montgomery, sheep requiring attention were progressively moved from “Nassau” and “Rosemeadow” to “Abbotsford” by Messrs Meehan, Newberry, Barnes, Kingsley and by himself. On each occasion of an anticipated removal, he said that he phoned Mr Montgomery for permission. It seems that in some instances, stock were moved without any written order. One such written order, 02730, was however identified as having been issued by Mr Montgomery for the movement of 450 sheep between 16 and 17 November, 1991.

133 On Mr Perrett’s estimate, some 600 merinos and 400 crossbreds suffered from flystrike during the quarantine period, which could not be effectively treated because of the quarantine restrictions, leading to a loss of $28 and $14.40 per fleece for the merinos and crossbreds respectively. He suggested, however, that transport costs had been occasioned in the order of $6480, which would suggest that more sheep had in fact been moved for treatment, despite the quarantine.

134 Mr Tim Newberry confirmed moving sheep from “Rosemeadow” and “Nassau” to “Abbotsford” between November 1991, and April 1992, and assisting in their treatment for flystrike. He added that he saw a number of sheep that had died from flystrike. He said that when he carted sheep for the plaintiff he frequently checked them for lice, but found no symptoms of any such condition.

135 Mr Meehan said that he, on about 21 October, being tired of the difficulties occasioned by his sheep being quarantined, and because the Perretts were running out of feed, he removed them from “Nassau”, taking them back to his property, “Glen Athol”. He also collected the smaller number of his sheep that were on “Rosemeadow”. Once back on “Glen Athol”, he said, as a precaution, he kept all of those sheep separated from the remainder of his flock for some months. He gave evidence to the effect that he did not find any problem with lice in these sheep, or with their progeny, or with the remainder of his flock, when they were eventually amalgamated. He said that “Glen Athol” was not placed under quarantine even though, in the course of a discussion with Mr Smith, within a few days of the movement of his sheep, he informed him of it.

136 This conversation occurred, he said, when he was pulled up by Mr Smith and confronted with an allegation that he had been transporting sheep to “Abbotsford” for Mr Perrett. He said that when he inquired of Mr Smith whether he wanted to inspect his sheep for lice, he declined the offer. He confirmed the experience, which was otherwise accepted to be the case, that if sheep in a mob have lice then it is likely to be passed to the remainder.

137 Mr Smith denied that Mr Meehan disclosed moving his own sheep from “Nassau” to “Glen Athol”, suggesting instead that their conversation related only to the investigations which he was making in relation to possible unauthorised movements of stock to “Abbotsford”.

676 As the evidence in relation to the events in July shows, the concern of the Board and Department at this stage primarily related to the condition and welfare of the sheep, a concern which had led to Ms Harmer being notified and asked to attend the property.

677 There was evidence from Mr Smith, Mr Montgomery, Mr Lynn, Mr Gallagher, and Mr Davidson which was corroborative of the presence of dead, injured, and distressed stock on the property, as well as of the absence of feed. There was also evidence from them concerning the presence of loose dogs, and of sheep that had been tangled up in wire, and attacked by crows and dogs.

678 The shootings on 3 July, it was shown, occurred at a time when not only was Ms Harmer present, authorising and directing the destruction of sheep in consultation with Mr Montgomery, but there was also present Stuart McLelland from the Department of Agriculture. Additionally, there was photographic evidence of the scene, which, in my view, generally supports the description which the defence witnesses gave as to the very poor condition of the sheep.

679 Mr Sackett’s report hardly assisted the plaintiffs’ case in so far as he asserted, from the photographs, that 50% of the sheep had a condition score of less than 1.5 (on a scale of 1 to 5), and that most of the rest had a score of 1.5, such that they require supplementary feeding or access to good quality pasture. Absent a management plan to at least maintain, if not increase their live weight, he said, this “would be an animal welfare issue”.

680 A post-mortem examination of one of the diseased sheep also indicated the presence of worms and depleted kidney fat reserves.

681 That there was a genuine concern in relation to the surviving sheep, and not wanton and unnecessary destruction, was also supported by the fact that upon Ms Harmer's instructions, the survivors were drenched using drench purchased by her. Even in this minor detail, Mr Perrett attributed bad faith to those present, suggesting that his drench had been used, and that his drench gun had been taken. That assertion I find to be untrue, as do I find his suggestion that the sheep were shot merely to assist the Bank.

682 Again these causes of action are not made out.

7. The Feeding of "toxic" Hay Causes of Action

683 These causes of action, which were pursued against Mr Smith and Mr Montgomery, included claims based in negligence, trespass to goods and to land, and misfeasance in a public office. As to the latter, it is alleged that they knew that they had no power to enter the property and to feed the sheep. It is not however, alleged that they knew the hay was toxic.

684 There is a fundamental problem in the way of the plaintiffs, in that I am satisfied on the evidence, that the decision to buy hay, and its actual purchase, was made by the RSPCA on Ms Harmer's authority. Neither Mr Montgomery or Mr Smith had anything to do with this decision. It is true that Board workers helped roll it out, over various days, but there is no reason to suppose that any of them was acting other than for humane reasons, in response to RSPCA's intervention.

685 I am, in any event, unpersuaded that hay was "toxic". It may not have been of the best quality, which was understandable since the area was in drought, and hay was in short supply. It was, however, supplied from an independent commercial supplier in Glen Innes, and it was not considered by the Board workers who saw it to be of inedible or toxic appearance.

686 No complaint was made about it by the plaintiffs, even though the perfect opportunity to do so was available to Mr Perrett when he consulted Mr Shands for advice as to the feeding of the sheep. I reject Mr Perrett's account of showing him a sample of hay, and I accept Mr Shands’ diary as indicating that there was no conversation along the lines attributed to him by Mr Perrett. Another opportunity for complaint, which was not taken up, arose when Ms Harmer asked Mrs Perrett to pay for the hay.

687 No analysis was ever made of the hay, no photograph was taken of it and no evidence was called to show that it could have killed the sheep. While Mr Seaman’s affidavit suggested that soya bean hay is of poor feed quality and of insufficient quality to maintain liveweight, and can contain potentially toxic levels of nitrates, that situation, he said, was usually associated with green leaf material which was not present here. Mr Sackett’s report would tend to confirm the view that this hay mainly consisted of dried stalk.

688 Accordingly I do not accept the plaintiffs’ evidence that it was mouldy or toxic, or that it appeared to have been "sitting out in the elements for four years."

689 I have a doubt about the evidence that was given by Mr Perrett, Mr Newbury and Mr Meehan as to the availability of other feed in a shed. Had such a supply of feed been available, it is at least questionable why the stock were in the poor condition which was observed. Even had there been such feed available, which went unnoticed by Ms Harmer and the others, it would not make good this claim, since I am satisfied that the acquisition and feeding out of the RSPCA hay was done in good faith.

690 I am satisfied, to the contrary of the evidence of the plaintiffs, that the sheep deaths on "Abbotsford" in June and July were entirely due to neglect and inadequate fodder, as well as to the bouts of cold weather which could only have weakened the sheep further, requiring the humane destruction of some, and leading to the unassisted death of others. Of some importance in this respect were the later observations of Mr Montgomery, that the drenched sheep had appeared to have put on condition, after responding to be Milvern drench and to the supplementary fodder, and the laboratory confirmation of worm infestation in the ewe which had been subjected to a post-mortem examination.

691 While something of a question remains in relation to the disappearance of the adult dogs, it was for the plaintiffs to prove that they were either shot or taken by one or other of the defendants, in order to make this claim good. The evidence does not permit such a finding, as the plaintiffs conceded in their closing submissions.

692 These claims are accordingly not made good.

8. Conclusion

693 Having regard to my specific findings in relation to each of the complaints which were levelled at Messrs Williams, Smith, and Montgomery, I am not persuaded that any relevant wrongdoing was made out. Although in those circumstances it is not necessary for them to have resorted to statutory immunity, it is clear that bad faith having been eliminated, it would provide a defence in relation to those acts which fell within the compass of the legislation by which it was conferred, had the tort of negligence been available.

694 It follows that there must be a verdict for each of the defendants.

F. Damages

695 The losses for which the plaintiffs claim damages fall into two categories, which were conveniently identified by the defendants, as constituting specific sheep losses and losses for sheep not accounted for. Those claims, or the quantification of them, however differ between the defendants.

696 The losses in the first category relate to:

(a) The losses occasioned as a direct result of the order for removal of the stock from the Moree TSR, and their transport back to Glen Innes - claimed against Mr Williams, the Moree Rural Lands Protection Board and the State.

(b) The losses occasioned as a direct result of the second dipping - claimed against Mr Montgomery, the Glen Innes Board and the State.

(c) The losses occasioned as a result of the shootings - claimed against Mr Smith and Mr Montgomery, as well as against the Glen Innes Board and the State.

697 The losses in the second category consist of:

(a) Losses attributable to the imposition of, and continuation of, quarantine - claimed against Mr Smith and Mr Montgomery, and against the Glen Innes Board and the State.

698 The economic loss claim, as calculated by Mr Browning in his supplementary report of 9 March 2003 was as follows:

(a)	Expected proceeds of lamb sales;	$122,522.42
(b)	Cost of replacement of adult sheep after allowance for normal deaths;	414,826.00
(c)	Cost of trucking from Moree TSR to Glen Innes;	9,838.00
(d)	Cost of trucking sheep between properties for flystrike treatment;	6,480.00
(e)	Loss of sheep dogs;	9,500.00
(f)	Loss of turnip crop.	2,922.50
$566,088.92

Net proceeds of sheep and lamb sales;	$14733.45
Wool sales	19223.60
$33,957.05
$532,131.87

699 A further claim was initially made, in relation to economic loss, for "the forced sale, replacement loss, and loss of the use" of “Nassau”, and “Rosemeadow”, in a sum of $63,043, and for expenses in relation to the bank litigation of $122,616.52, as well as for unspecified interest on the bank loans. It is not entirely clear, save for the bank litigation expenses claim (which was expressly abandoned) whether the remaining aspects of this heading of loss are still pursued, since they were not the subject of any specific closing submissions.

700 Each aspect of the claim for damages was placed in issue, commencing with the calculation of the numbers of sheep that were lost on the stock route at Moree, and their initial return to Glen Innes, those that were lost at the time of the second dipping, and those that died as a result of malnutrition and fly strike. The difference between the parties can be seen from the reconciliation tables which each prepared, of the sheep and lamb numbers, taking into account those that were transported to the stock route and those that were lambed there, as well as the claimed losses and disposals at various dates thereafter.

701 The plaintiffs’ evidence concerning the sheep losses in their final reconciliation, differs to some extent from the figures which were initially supplied to Mr Browning and which formed the basis for his original assessment. For example, in that reconciliation, the number of sheep deaths due to fly strike and malnutrition appears to have altered.

702 As I have already observed, I disbelieve the evidence which the plaintiffs gave as to the number of sheep that died on the TSR, and as a consequence of the second dipping, even assuming (contrary to the facts as I find them to be) that the sheep were unnecessarily ordered to be taken off the stock route, or were poisoned due to a toxic dip.

703 There is some certainty as to the number of sheep that were sold at various times and transferred to Mr Tucker, since stock movement orders were prepared in relation to them.

704 The only other area in which there is any degree of certainty relates to the number of sheep that were destroyed by the Board officers, but their deaths were due to a humane response and were not the result of any fault that could be attributed to the defendants.

705 The spreadsheets prepared by the defendants are substantially based upon stock movement orders or contemporary records. The plaintiffs did not themselves keep any running records or stock counts, or any precise ongoing tally of deaths. Since I am generally not prepared to accept their evidence as reliable or credible, I would be forced back to the defendants’ reconciliation, if it were necessary to assess damages.

706 The next area of contest for an assessment would relate to the values which the plaintiffs and the defendants placed upon the sheep at various times. In this respect they made reference either to the actual sales that were effected in relation to those of the plaintiffs’ sheep that were sold, or to estimates that were made upon the basis of their assumed condition, (particularly their weight) and market data. The differences in opinion concerning these aspects are recorded in the experts’ reports, but any decision as to the appropriate value would vary according to the time or times at which fault could be demonstrated. This would have an impact on both the losses alleged to have occurred as a direct result of the move from the stock route, and the alleged wrongful restriction of the sheep by reason of continued quarantine.

707 The evidence does show in this respect that rams were purchased for an average price of about $36 per head, and that the ewes were purchased for an average price of only $1.57 per head. They comprised small lots of sheep of mixed ages and bloodlines, and the prices paid would tend to suggest that they were not necessarily of prime quality, despite Mr Perrett’s contentions to the contrary. Additionally the evidence shows that there were sales during the period October 1991 to May 1992 of approximately 1900 head of sheep and lambs, from which some guidance as to their value could be ascertained. That fact also indicates that the sheep were at least saleable for slaughter (some immediately, and the ewes with lambs when they had reached a suitable age), although obviously below the prices which the plaintiffs claimed could otherwise have been obtained for them. The gulf between the prices paid, and the values assessed by Mr Moad for replacing ewes “joined and in forward to fat condition” was very considerable (Merino ewes $65, x-bred ewes $74); as were his estimates for the wethers ($63) and rams ($30).

708 Another area of contest concerns the plaintiffs’ calculations of a 100% lambing rate for the ewes during at least the first season on the stock route, and some imprecision or uncertainty as to the plaintiffs’ plans, as to how long the sheep would remain travelling stock, and as to when and under what conditions, they or their progeny would be shorn and/or sold. In that regard it was the plaintiffs’ case in relation to the lambs, that they would be allowed to fatten for sale during the following year. What was intended in relation to the remainder of the sheep remains unclear, there having been no evidence given at the trial to confirm the assumption of Mr Browning that 2500 Merino ewes would be agisted from February 1992, on lucerne pastures, at North Star before their sale in full wool, and that 2500 cross bred ewes would have returned to Glen Innes.

709 The 100% lambing rate, Mr Ivey pointed out, was well in excess of the average lambing rates across NSW for the years ended 31 March 1991 (84.2%) and 30 March 1992 (75.6%), and not a rate ascertainable for travelling stock.

710 The future was obviously very much dependent on the weather, the pastoral conditions on the stock routes and at Glen Innes, economic pressure from the Bank, wool prices, and sale prices through yardings, in the areas where the stock were at any relevant time. Additionally, there would need to be an allowance for the costs of keeping the sheep on the road, and for mortality rates somewhat in excess of the 1.5% rate adopted by the plaintiffs.

711 A degree of speculation would attach in relation to each of these matters, but I am of view that the assessment of Mr Browning was somewhat optimistic, since it seems to have assumed the existence or occurrence of conditions and events that were, at every point, most favourable for the plaintiffs.

712 Apart from the issues which arise in relation to the stock numbers, lambing rates, sale prices and so on, additional significant issues would remain in relation to causation and mitigation, the determination of which would again depend upon the event or events in respect of which liability was found to exist. Inter alia, they would concern matters such as delay on the plaintiffs’ part in repairing the fences, if contrary to their position, they were not stock secure; and the insufficiency (or otherwise) of the fodder provided, so far as that may have led the sheep to lose condition.

713 I am generally satisfied that problems do lie in the way of plaintiffs in relation to both causation and mitigation, arising, to a considerable extent, from their financial difficulties, and the drought conditions.

714 In that respect it is clear that, for a significant period from October 1991, the Glen Innes area was affected by drought, and that at least, during the middle months of 1992, the plaintiffs did not provide sufficient fodder for the sheep. There was evidence from Mr Ivey suggesting that the Moree district was also in drought during late 1991 and early 1992, although that is not readily apparent from the rainfall figures.

715 The plaintiffs elected to hold onto most of their sheep, rather than to reduce their losses by sale for slaughter, with the consequence that they lost further value and in many cases, died of malnutrition and/or fly strike. Those last mentioned losses were due to the plaintiffs’ neglect.

716 Any election not to take advantage of the opportunity to sell the sheep for slaughter immediately upon their return from the stock route, or subsequently, was a matter for decision by them. If there was any actionable wrong in relation to the events of September 1991, then the sale of the sheep would have reduced the resulting losses, and in the conditions prevailing, it would have been a reasonable response to the problem which the plaintiffs faced.

717 While I would normally endeavour to proceed to an assessment of damages in any case where the plaintiffs have failed on the liability issue, so as to avoid the need for a further hearing in the event of those findings being reversed on appeal, I do not consider it useful or feasible to do so here.

718 The problem lies in the circumstance that any such assessment would depend upon the time at which, or events in respect of which, I was found to be in error. For example, the damages payable, if the defendants were ultimately found to have been responsible for the plaintiffs’ losses, commencing with the events at the Moree TSR would, or could, differ significantly from those payable if liability was limited to the events related to the fencing requirements, or to those associated with the second dipping, or to those associated with the imposition of quarantine on one of the properties. Additionally, having regard to the separate claims brought, not all of which extend to the individual defendants, the potential liability of each could differ significantly.

719 The possible permutations and combinations which arise, and the need to consider the extent to which the plaintiffs mitigated their losses, would require a series of separate calculations.

720 Those calculations would also depend upon whether a cause of action was established in relation to some prior event, or relevant series of events, occurring within the various time phases, which I have identified, since liability found for one event would have a carry over effect for later events. To further complicate those calculations, questions do arise at each stage of the proceedings, of the possibility of a break in the chain of causation, as do mitigation issues. This relates, inter alia, to the plaintiffs’ impecuniousity (see for example The Liesbosch [1933] AC 449, Trans SPRL v Danubian Trading Co Ltd [1952] 2 QB 297; Australian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1987) 161 CLR 98; Fox v Wood (1981) 148 CLR 438; Burns v MAN Automotive (Australia) Pty Ltd (1986) 161 CLR 653 and Henville v Walker (2001) 206 CLR 459; as well as to whether the resulting problems were due to the plaintiffs’ fault, or were causally related to any fault on the part of the defendants.

721 The more appropriate course, if my liability findings are reversed, in whole in part, is for the matter to be returned for assessment, or inquiry, depending upon the basis, or bases, found for liability.

722 Otherwise there will be a verdict and judgment for the defendants. I will hear further argument as to costs.

**********

Last Modified: 05/12/2003

CITATION:	Perrett v Williams [2003] NSWSC 381
HEARING DATE(S):	25/2/03, 3/3/03-7/3/03, 10/3/03-12/3/03, 14/3/03, 19/3/03,
JUDGMENT DATE:	9 May 2003
JUDGMENT OF:	Wood CJatCL at 1
DECISION:	Verdict and judgment for the defendants. Further arguments as to costs to be heard.
CATCHWORDS:	NEGLIGENCE - Statutory Body - Duty of Care - Tort of Intimidation - Misfeasance in a Public Office - Trespass to Goods and to Land - Whether Vicarious Liability of the Boards and of the State.
LEGISLATION CITED:	Clean Waters Act 1970 Fisheries Management Act 1994 Law Reform (Vicarious Liability) Act 1983 Local Government Act 1993 Prevention of Cruelty to Animals Act 1979 Rural Lands Protection Act 1989 Stock Diseases Act 1923 Veterinary Surgeons Act 1986
CASES CITED:	Allen v Flood [1898] AC 1 Anns v Merton London Borough Council (1978) AC 728 Australian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1987) 161 CLR 98 Bayliss v Cassidy SC QLD, 18 September 1998 Brodie v Singleton Shire Council (2001) 206 CLR 512 Burnie Port Authority v General Jones Pty Limited (1994) 179 CLR 520 Burns v MAN Automotive (Australia) Pty Ltd (1986) 161 CLR 653 Caparo Industries Pty Ltd v Dickman (1990) 2 AC 605 Commonwealth of Australia v Connell (1986) 5 NSWLR 218 Commonwealth v Introvigne (1982) 150 CLR 258 Crimmins v Stevedoring Industry Finance Corporation (1999) 200 CLR 1 Deatons Pty Limited v Flew (1949) 79 CLR 370 Dorset Yacht Co Ltd v Home Office [1970] AC 1004 Fox v Wood (1981) 148 CLR 438 Garrett v Attorney-General [1997] 2 NZLR 352 Graham Barclay Oysters Pty Ltd v Ryan (2002) 77 ALJR 182 Henville v Walker (2001) 206 CLR 459 Hill v Chief Constable West Yorkshire [1989] AC 53 Hill v Van Erp (1997) 188 CLR 159 Hillman v Black (1996) 67 SASR 490 James v The Commonwealth (1939) 62 CLR 339 Julius v Lord Bishop of Oxford (1880) 5 App Cas 214 Kondis v State Transport Authority (1984) 154 CLR 672 Little v The Commonwealth (1974) 75 CLR 94 Lloyd v Grace Smith & Co [1912] AC 716 Morris v CW Martin & Sons Limited [1966] 1 QB 716 New South Wales v Paige [2002] NSWCCA 235 Northern Sandblasting Pty Ltd v Harris (1996) 188 CLR 313 Northern Territory v Mengel (1995) 185 CLR 307 Perre v Apand Pty Ltd (1999) 198 CLR 180 Plenty v Dillon (1991) 171 CLR 635 Pyrenees Shire Council v Day (1998) 192 CLR 330 Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 Rookes v Barnard [1964] AC 1129 Rowling v Takaro Properties Ltd [1988] AC 473 Sanders v Snell (1999) 196 CLR 329 Scott v Davis (2000) 204 CLR 333 Smith v Leurs (1945) 70 CLR 256 Sorrell v Smith [1925] AC 700 SPRL v Danubian Trading Co Ltd [1952] 2 QB 297 State of New South Wales v Lepore (2003) 77 ALJR 558 Sullivan v Moodie (2001) 75 ALJR 1570 Sutherland Shire Council v Heyman (1985) 157 CLR 424 Tame v NSW (2002) 76 ALJR 1348 Three Rivers District Council v Governor and Company of the Bank of England (No 3) (2000) 2 WLR 1220 Trobridge v Hardy (1955) 94 CLR 147 Yuen Kun Yeu v Attorney General of Hong Kong [1998] AC 175 X (Minors) v Bedfordshire County Council (1995) 2 AC 633
PARTIES :	Leslie John Perrett (P1) Mary Genevieve Perrett (P2) Wayne Richard Williams (D1) Moree Rural Lands Protection Board (D2) John Hardie Smith (D3) John Forbes Montgomery (D4) Glen Innes Rural Lands Protection Board (D5) State of New South Wales (D6)
FILE NUMBER(S):	SC 21224/95
COUNSEL:	Mr A McInnes QC (Plaintiffs) Mr P Taylor SC (Defendants) with Mr P Green
SOLICITORS:	James Solicitors (Plaintiffs) NSW Crown Solicitor (Defendants)