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Robertson v Vlahos

Robertson v Vlahos

Case [2010] QSC 424 12 November 2010

Prevention of Cruelty to Animals

Tampering with Seized Animals

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SUPREME COURT OF QUEENSLAND

CITATION:

Robertson v Vlahos [2010] QSC 424

PARTIES:

GERALDINE FOOI-FONG ROBERTSON

(plaintiff/ respondent)

v

LESLEY JOY VLAHOS

AND

ANASTASI VLAHOS

(defendants/ applicants)

FILE NO/S:

BS12451/08

DIVISION:

Trial

PROCEEDING:

Application for summary judgment

ORIGINATING COURT:

Supreme Court, Brisbane

DELIVERED ON:

12 November 2010

DELIVERED AT:

Brisbane

HEARING DATE:

24 August 2010

JUDGE:

Margaret Wilson J

ORDER:

CATCHWORDS:

ANIMALS – VARIOUS STATUTORY PROVISIONS – PREVENTION OF CRUELTY TO ANIMALS – OFFENCES – where RSPCA inspector executed warrant on plaintiff’s premises and seized 104 dogs pursuant to Animal Care and Protection Act 2001 (Qld) s144 – where seized dogs were taken to animal shelter – where only 100 dogs arrived at animal shelter – where defendants swore that plaintiff said she had hidden four dogs – where plaintiff then delivered four dogs into the care of the defendants – where defendants consented to RSPCA seizure of those four dogs – whether plaintiff tampered with seized animals pursuant to Animal Care and Protection Act 2001 (Qld) s149

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – SUMMARY JUDGMENT – whether plaintiff has "no real prospect" of succeeding pursuant to Uniform Civil Procedure Rules 1999 (Qld) r 293

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – JURISDICTION AND GENERALLY – SUMMARY DISMISSAL OF CLAIM – ABUSE OF PROCESS – where Magistrate found in proceeding challenging forfeiture of 104 dogs that the four dogs were among those seized – whether abuse of process for plaintiff to relitigate factual issue

Animal Care and Protection Act 2001 (Qld), ss 3(b)(i), 10, 122(1)(a), 142, 144, 149, 154(2)(c),156(2), 193-198, 202, 205, 215
Police Powers and Responsibilities Act 2000 (Qld), s 146(2)(d)

Uniform Civil Procedure Rules 1999 (Qld), rr 292, 293

AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at [33], cited
Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232, cited
Hunter v The Chief Constable of the West Midlands Police [1982] AC 529 at 541, cited
Neumann Contractors Pty Ltd v Traspunt No 5 Pty Ltd [2010] QCA 119, applied
Rogers v The Queen (1994) 181 CLR 251, cited
St John Shipping Corp v Joseph Rank Ltd [1957] 1 QB 267 at 283, cited
Reichel v Magrath (1889) 14 App Cas 665, cited
State Bank of New South Wales Ltd v Stenhouse Ltd (1997) Aust Torts Reports 81-423, applied
Walton v Gardiner (1992-1993) 177 CLR 378, cited

Yango Pastoral Co Pty Ltd v First Chicago Australia Ltd (1978) 139 CLR 410 at 413, cited

COUNSEL:

DRL Laws for the applicant defendants

The respondent plaintiff appeared on her own behalf

SOLICITORS:

McCarthy Durie Ryan Neil for the applicant defendants

MARGARET WILSON J: The plaintiff commenced this proceeding in December 2008, claiming $664,000 damages for breach of contract. The defendants have applied for summary judgment pursuant to r 293 of the Uniform Civil Procedure Rules.

The plaintiff’s claim

The plaintiff carried on the business of breeding Poodles at Buccan in Logan…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Robertson v Vlahos

Details

AGLC: Robertson v Vlahos [2010] QSC 424
Case: [2010] QSC 424
Decision Date: 12 November 2010

CaseChat Overview and Summary

In the Supreme Court of Queensland, Robertson, the plaintiff, was prosecuted by Vlahos, the defendant, under the Animal Care and Protection Act 2001 (Qld). The plaintiff was charged with tampering with seized animals contrary to s149 of the Act. The case arose after the Royal Society for the Prevention of Cruelty to Animals (RSPCA) executed a warrant on the plaintiff's premises and seized 104 dogs. The RSPCA took the dogs to an animal shelter, but only 100 dogs arrived. The defendants claimed the plaintiff admitted hiding four dogs, which were later delivered to the defendants. The defendants consented to the RSPCA seizing these four dogs. The plaintiff's case was dismissed on summary judgment, with the court finding that the plaintiff had no real prospect of success.

The primary legal issues before the court were whether the plaintiff tampered with the seized animals and whether the court should summarily dismiss the plaintiff's case. The court also needed to determine if it was an abuse of process for the plaintiff to relitigate the factual issue of whether the four dogs were among those seized. The court had to consider the relevant statutory provisions and the principles of abuse of process.

The court held that the plaintiff had no real prospect of succeeding on the merits of the case. The court found that the four dogs were among those seized and that the plaintiff's actions constituted tampering with the seized animals. The court further found that the plaintiff's attempt to relitigate the factual issue was an abuse of process. The court relied on the previous findings of the Magistrate in a proceeding challenging the forfeiture of the 104 dogs and held that the plaintiff was estopped from denying those facts. The court granted the defendant's application for summary judgment and dismissed the plaintiff's case.

The court ordered that the plaintiff pay the defendant's costs of the proceeding. The court also noted that the plaintiff's conduct in attempting to hide the four dogs constituted an offence under the Animal Care and Protection Act 2001 (Qld). However, the court did not impose any penalty on the plaintiff for that offence, as it was already subject to a separate proceeding.

Orders