Ross v Adams (An Inspector of the RSPCA) - [2019] SASC 48

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
ROSS v ADAMS (AN INSPECTOR OF THE RSPCA)
[2019] SASC 48
Judgment of The Honourable Justice Doyle
29 March 2019
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
ANIMALS - VARIOUS STATUTORY PROVISIONS - DOGS - REGISTRATION, IDENTIFICATION OF OWNERS AND SEIZURE AND DESTRUCTION
Appeal from an order made by a Magistrate authorising that a number of dogs seized by an inspector of the RSPCA be sold, destroyed or otherwise disposed of as the Minister thinks fit.
An RSPCA inspector seized a number of dogs from the appellant, a dog breeder. The appellant was charged with 17 offences under the Animal Welfare Act 1985 (SA) (the Act). The inspector also applied for the above forfeiture order under s 31C(2) of the Act. The Magistrate granted the application, reasoning that it would be unreasonable or impractical for the dogs to be retained in the RSPCA shelter pending determination of the criminal proceedings against the Minister.
Held (per Doyle J):
1. The appellant has not established that the Magistrate failed to afford the appellant procedural fairness, failed to take into account any relevant considerations, erred in his conclusion that it was unreasonable or impractical for the dogs to continue to be retained by the RSPCA until the conclusion of the criminal proceedings, or otherwise erred in the exercise of his discretion under the Act.
2. Appeal dismissed.
Animal Welfare Act 1985 (SA) ss 28, 31C(2), 32A, 34B; Animal Welfare Regulations 2012 (SA) s 5; Magistrates Court Act 1991 (SA) ss 10, 10AB, 10B; Magistrates Court Rules 1992 (SA) rr 4, 29, referred to.
Theofylatos v Animal Welfare Authority [2013] NTSC 61; Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598; Hamra v The Queen (2017) 260 CLR 479; Spanos v B & K Paton Pty Ltd [1998] SASC 6879; Hollow v Maragozidis [2001] SASC 375; FA & SP Holland Pty Ltd v Bayside Insurance Brokers Pty Ltd [2014] SADC 138; Sali v SPC Ltd (1993) 67 ALJR 841, considered.

ROSS v ADAMS (AN INSPECTOR OF THE RSPCA)
[2019] SASC 48
Magistrates Appeal

DOYLE J: This is an appeal from an order by a Magistrate pursuant to s 31C(2) of the Animal Welfare Act 1985 (SA) (the Act) authorising that a number of dogs seized from the appellant (Mr Ross) on 23 October 2018, and their issue, be sold, destroyed or otherwise disposed of as the Minister thinks fit.
Background
Mr Ross is a dog breeder from Lameroo. On 23 October 2018, 15 dogs were seized from a facility operated by Mr Ross and Ms Fitzpatrick. Ten of the dogs seized were adult dogs; the remaining five were puppies.
On 11 January 2019, Ms Adams (an inspector under the Act, employed by the RSPCA) filed an information in the Magistrates Court alleging 17 offences by Mr Ross and Ms Fitzpatrick under the Act, committed between 19 July 2018 and 23 October 2018. The alleged offences consisted of six counts of failing to comply with a direction or requirement in an animal welfare notice under s 31B(2) of the Act, 10 counts of ill treatment of an animal under ss 13(1) or (3) of the Act, and one count of non-compliance with s 5 of the Animal Welfare Regulations 2012 (SA).
The information included notification that orders would be sought for various veterinary and boarding expenses, and requiring that Mr Ross and Ms Fitzpatrick surrender any animals currently owned (s 32A(1)(b)), forfeit to the Crown those that have been surrendered or seized (s 32A(1)(c)), and forbidding Mr Ross and Ms Fitzpatrick from acquiring, or having custody of, any animals until further order (s 32A(1)(d)).
On the same day, Ms Adams (hereafter, the applicant) also filed an application seeking a forfeiture order under s 31C(2) of the Act, authorising that the dogs be sold, destroyed or otherwise disposed of as the Minister sees fit.
Section 31C(2) provides:
(2)     If, on application by an inspector, a magistrate is satisfied that—
(a)     an animal has been seized and retained under this Act; and
(b)     legal proceedings under this Act relating to the animal are pending; and
(c)in the circumstances, it is impractical or unreasonable for the animal to    continue to be retained until the proceedings have been concluded or    otherwise terminated,
the magistrate may make an order authorising that the animal be sold, destroyed or otherwise disposed of as the Minister thinks fit.
The application document was signed by the applicant, and identified her as an employee of the RSPCA, and an inspector appointed under s 28 of the Act. The application was filed in the criminal proceedings that were filed the same day against Mr Ross and Ms Fitzpatrick (as summarised above). It named both Mr Ross and Ms Fitzpatrick as persons the subject of the order sought. However, Ms Fitzpatrick subsequently disclaimed any ownership interest in the dogs and did not participate in the hearing of the application, and so can be ignored for present purposes.
After referring to the seizure of 15 dogs (10 adult dogs and five puppies) from Mr Ross on 23 October 2018, and the fact that the dogs were currently being cared for by the RSPCA, the application made reference to a report from an independent veterinarian, Dr Tracey Henderson, who was present on the day the dogs were seized, and had examined the animals. The application said that her opinion was that the animals were suffering at the time of seizure, and continued to suffer in the shelter environment; and that she considered that the 10 adult dogs should be humanely euthanized given the seriousness of their condition.
The application stated that four of the female adult dogs seized had since given birth to a number of puppies. Five of these puppies had been still born or died soon after birth, and another four had been humanely euthanized by a veterinary surgeon under s 34B of the Act. However, 23 puppies (including those seized on 23 October 2018) remained under the treatment and care of the RSPCA at its Lonsdale shelter.
The application said that it was in the best interests of the animals that some (if not all) of the adult dogs be humanely euthanized, and that the rest of the dogs be re-homed from the shelter to a new family or rescue facility. It said that if the order sought was not made, this would not only prolong the suffering of the dogs, but also that the condition of the dogs was likely to worsen – which would adversely affect any attempt to safely re-home or relocate them. It also said that keeping the dogs at the shelter involved incurring daily care costs which the RSPCA was being required to bear, and which it would be unlikely to recover from Mr Ross. Further, the dogs were taking up valuable resources while at the shelter. They required special care and handling due to their condition, and were causing disruption to the day-to-day business of the shelter.
It was said that in all of the above circumstances, it was “impractical or unreasonable” (within the meaning of s 31C(2)(c)) of the Act for the dogs to continue to be retained by the RSPCA.
The first return of the application was on 15 January 2019. The order sought by Mr Ind (who appeared for the applicant) was opposed by Mr Lloyd (who appeared for Mr Ross). Submissions were made by both parties. Mr Lloyd objected to the order being made on that occasion without any evidence. In reliance upon the decision in Theofylatos v Animal Welfare Authority,[1] he said that procedural fairness required that he be given an opportunity to call evidence. He referred to an inspection of the dogs by a veterinarian he had arranged for the following day.
[1] Theofylatos v Animal Welfare Authority [2013] NTSC 61.
The matter was adjourned to 23 January 2019 to enable Mr Ross to have the dogs examined by his experts (Dr Girling, a veterinary surgeon; and Mr Yeo, a dog trainer and handler).
When the matter returned to Court on 23 January 2019, the applicant tendered the report from Dr Henderson. Mr Lloyd, on behalf of Mr Ross, tendered letters from Dr Girling and Mr Yeo in relation to their examination of the dogs, and an affidavit of Mr Ross. This evidence was received by the Magistrate without objection, and without any person being called to give evidence or being required for cross-examination. The matter otherwise proceeded on the basis of the application document and submissions made on behalf of each of the parties.
In the submissions made on behalf of the applicant during the hearings on 15 January 2019 and 23 January 2019, it was contended that the first two limbs of s 31C(2) could not be disputed, and that the third limb should be assessed by reference to the intention or purpose of the legislation (namely, the promotion of animal welfare), and not based upon commercial matters such as the worth of the dogs to the owner. It was further submitted that the seizure of the dogs was not a spontaneous or random seizure, but rather had occurred after several visits over the space of weeks in which expiation and animal welfare notices had been issued. The dogs had been assessed by experts prior to their seizure.
It was submitted that the dogs continued to suffer in the shelter environment, despite the medication and care they were receiving, including from RSPCA vets, nurses, behaviourists and animal husbandry staff. The applicant relied upon the Dr Henderson report in support of the allegations about the condition of the dogs. The report, while undated, was provided on 20 December 2018. It was 53 pages in length and addressed in detail not only the condition of the dogs at the time of the seizure, but also the assessments and treatment that had occurred during the seven weeks the dogs had been at the RSPCA shelter. The conclusions and recommendations of the report were set out in pages 46 to 51 of the report and were ultimately to the effect that the adult dogs were considered too mentally damaged to be safely re-homed, and had been recommended for humane euthanasia. There was a good chance, however, that the puppies could be safely and successfully re-homed.
Submissions were also put on behalf of the applicant to the effect that the costs of caring for the dogs were continuing to accumulate, and were currently in the order of about $50,000 for expenses including medication, vet care and shelter. The applicant also contended that the shelter was intended to be a short term stay option only, but that it was not considered appropriate to return the dogs to Mr Ross because the applicant could not be satisfied that further harm would not occur. It was submitted that despite Mr Ross only having a licence to house 100 dogs, the inspections had identified in excess of 300 dogs at his facility. Other submissions were put about Mr Ross’ history of offending in relation to animal welfare matters, and complaints by members of the public about dogs purchased from him.
Mr Ross relied upon his affidavit, and the letters from his two experts. Through Mr Lloyd, he put submissions in opposition to the orders being made. It was submitted that the criminal charges against him were being disputed, and that the disposal of the dogs would jeopardise his defence of the criminal proceedings. It was submitted that the dogs were of considerable value to him, and could be housed in a third party kennel at Mr Ross’ expense. It was also pointed out that the Minister had not responded to Mr Ross’ invitation to intervene, or otherwise indicated what would happen to the dogs were an order to be made.
After hearing the parties’ submissions on 23 January 2019, the Magistrate further adjourned the application to 4 February 2019. On that occasion, the Magistrate heard further submissions from Mr Ross in opposition to an order being made, including referring to the lack of response to the Minister and seeking an adjournment to give the Minister a further opportunity to respond.
The Magistrate declined to adjourn the matter further, and on 4 February 2019 made an order in the terms sought by the applicant, and delivered his reasons for decision.
The Magistrate’s reasons
The Magistrate’s reasons commenced by noting that the RSPCA was caring for 33 dogs at its Lonsdale shelter (being the 10 adult dogs seized plus 23 puppies (including the five that were seized)). The Magistrate recounted the background, in terms similar to the above.
His Honour referred to the expert report from Dr Henderson, and the expert reports from Dr Girling and Mr Yeo, noting that they “disagree on a number of matters – the severity of the behavioural or medical conditions of the dogs which are the subject of the application, the cause of those conditions and the appropriate treatment”; but that there was common ground that it was not in the dogs’ welfare or interests that they remain for any extended period of time in their current shelter conditions.
The Magistrate noted that it would be a number of months before the charges against Mr Ross were finalised, and in all likelihood in excess of six months.
The Magistrate also noted that Mr Ross had been attempting to persuade the relevant Minister to have the dogs moved from the RSPCA shelter to a third party breeder at Mr Ross’ expense pending finalisation of these proceedings; and that Mr Ross had sought time to pursue these attempts further. However, as the Magistrate explained in refusing any further adjournment of the application, the Minister’s powers under the Act were not presently engaged. The Minister’s discretion under s 31C(2) of the Act to sell, destroy or otherwise dispose of the dogs was not enlivened until the Court made an order authorising that this occur (which was the order the applicant was seeking). And the only other relevant power the Minister had was under s 32A of the Act, which assumed a finding of guilt and an order forfeiting the dogs.
The Magistrate also observed that the Court itself did not have power to order that the dogs be relocated to some third party breeder.
Having accepted the opinions of Dr Henderson and Dr Girling to the effect that it was not in the dogs’ welfare or interests to remain in the shelter for an extended period, the Magistrate considered that it was important that an order be made to dispose of the dogs as soon as possible. In granting the application, his Honour reasoned:
I am satisfied that there are grounds for the making of a disposal order pursuant to s 31C; that it would be unreasonable to continue to hold the dogs in their current circumstances until the resolution of these proceedings given the time frame I indicated earlier. There are two reasons for that. The principal and main reason is the welfare of the dogs. That is the purpose of the Animal Welfare Act and it is clear that the current circumstances in which they are being kept is not a desirable way in which they should be kept for an extended period of time. Those dogs which can be either sold or re-homed should be as soon as possible. Secondly, and not irrelevant though less significant reason, is that currently the RSPCA are holding the 33 dogs in a facility that I am advised accommodates about 100 dogs. That is a significant practical responsibility. In any event the first reason, the welfare of the animals, is a sufficient reason to make an order under the Act, which I do.
The order ultimately made by the Magistrate was in the following terms:
… pursuant to Section 31C Animal Welfare Act, 1985, that the animals seized by the RSPCA on 23^rd October 2018 from one or both Defendants, and their issue (totalling 33 dogs), authorizing that the animals be transferred into the care of the Minister to be sold, destroyed or otherwise disposed of as the Minister thinks fit.
The appeal
In his second notice of appeal, Mr Ross relies upon six grounds of appeal:[2]
1.   The application was not heard and determined in accordance with the requirements of an action in the civil jurisdiction and the Magistrates Court (Civil) Rules 2013 (SA).
2.   The order was defective.
3.   Mr Ross was denied procedural fairness.
4.   The Magistrate made findings that were not supported by the evidence.
5.   The Magistrate failed to have adequate regard to Mr Ross’ interests, the interests of justice and the welfare of the animals.
6.   The Magistrate erred in the exercise of his discretion.
[2]    As re-numbered by me.
Most of the grounds of appeal are expressed in such general terms, or at such a level of abstraction, that it is difficult to address them in any meaningful way. They do not identify any particular error or errors that it might be contended the Magistrate made.
However, in the course of his written and oral submissions, counsel for Mr Ross alleged a number of more specific errors. I consider that they may be distilled as contentions to the effect that the Magistrate erred:
(i)in permitting the order under s 31C(2) of the Act to be sought by way of application made in the criminal proceedings against Mr Ross, rather than as separate civil proceedings;
(ii)in making an order in terms that the animals be “transferred into the care of the Minister” to be sold, destroyed or otherwise disposed of as the Minister thinks fit, when s 31C(2) of the Act does not contain reference to the words in inverted commas;
(iii)in making an order that referred to the animals being seized “by the RSPCA”;
(iv)in making an order that did not identify the animals the subject of the order;
(v)in making an order in respect of some animals that had not been seized from Mr Ross, but rather were the issue of such animals;
(vi)in proceeding on the basis of “evidence” from the bar table, rather than requiring that matters be formally proved by affidavit evidence;
(vii)in denying Mr Ross procedural fairness by not affording him a further adjournment and an opportunity to have a “trial”;
(viii)in not requiring evidence, or making findings, that the animals had been (validly) seized and retained by an inspector under the Act, as required by s 31C(2)(a);
(ix)in not requiring evidence as to the current state of the dogs, the circumstances in which they were being kept and the costs associated with this, and the practicalities of a third party caring for the dogs;
(x)in failing to make any express finding that it was impractical or unreasonable for the animals to continue to be retained until the proceedings had been concluded;
(xi)in finding that the Minister’s powers were not engaged until an order is made under s 31C(2);
(xii)in not requiring evidence as to what might happen if an order were made, including hearing from the Minister;
(xiii)in failing to take into account, or at least have adequate regard to, Mr Ross’ interests, the interests of justice and the welfare of the animals;
(xiv)in failing to take into account numerous other relevant considerations including the condition of the animals at the time of making the order, how they were being cared for or treated, their prognosis, why they could not be retained (or placed with a third party or returned to Mr Ross), the “not so heinous” nature of the allegations against Mr Ross, and the RSPCA’s delay in bringing the application; and
(xv)in exercising his discretion to make the order.
While not all of these alleged errors fall neatly under the grounds of appeal relied upon by Mr Ross, they can be loosely grouped on the basis that contention (i) relates to ground 1, contentions (ii) to (v) relate to ground 2, contentions (vi) to (ix) relate to grounds 3 and 4, and contentions (x) to (xv) relate to grounds 5 and 6.
Consideration

In my view, most of Mr Ross’ contentions on appeal have little merit. Many focus upon matters of form, and tend to ignore both the substance of what occurred before the Magistrate, and the desirability and appropriateness of proceedings such as the present being conducted in as efficient and practical manner as the justice of the case permits. In addition to this, in several cases they are contentions made for the first time on appeal. To the extent that these matters could have been addressed by the applicant in the hearing before the Magistrate had complaint been made at the time, they are not matters properly raised on appeal.[3]
[3] Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598 at [51].
Against this general background, it is appropriate to address individually the grounds that I have managed to distil from Mr Ross’ submissions.
Ground 1: Application should have been brought in civil proceedings
In relation to contention (i), I am not persuaded that the applicant was required to bring the application in civil proceedings instituted in the Civil (General Claims) Division of the Magistrates Court.
The application sought an exercise of the Magistrates Court’s jurisdiction to make an order under s 31C(2) of the Animal Welfare Act. This is an example of the statutory jurisdiction that s 10(1) of the Magistrates Court Act 1991 (SA) recognises may be conferred upon the Magistrates Court. This statutory jurisdiction is dealt with separately in the Magistrates Court Act from the conferral of the Court’s civil and criminal jurisdictions (in ss 8 and 9 respectively of the Magistrates Court Act).
Further, under s 10(2) of the Magistrates Court Act provides that the rules may assign a particular statutory jurisdiction (other than one specifically assigned by another Act to a particular Division) to either the Civil (General Claims) Division or the Criminal Division of the Magistrates Court. To this end, r 4 of the Magistrates Court Rules 1992 (SA) contains various rules governing the assignment of the Court’s statutory jurisdiction to the Civil and Criminal Divisions of the Court. However, none these addresses or assigns the Court’s statutory jurisdiction under s 31C(2) of the Animal Welfare Act.
In the absence of any specific rule assigning this head of statutory jurisdiction to either the Civil or Criminal Division of the Court, the applicant relies upon r 29 of the Magistrates Court Rules (which appears in Section B of those rules, being the rules relating to the exercise of the Court’s jurisdiction in its Criminal Division). The applicant relies in particular upon r 29.01, which provides that the jurisdiction of the Court pursuant to s 10 of the Magistrates Court Act may be invoked by an application complying with Form 23. This was the procedure and form used by the applicant.
Counsel for Mr Ross, on the other hand, contends that in the absence of any rule specially assigning the jurisdiction under s 31C(2) of the Animal Welfare Act to the Criminal Division of the Court, the application ought to have been instituted in the Civil Division on the basis that the nature of the jurisdiction was inherently civil. It was said to be inherently civil because it sought forfeiture of property owned by Mr Ross, with that forfeiture not being dependent upon any criminal conviction.
I am not satisfied that the application was inherently civil in nature, or was otherwise necessarily to be brought in the Civil Division. To my mind, this submission overlooks the statutory nature of the jurisdiction, which (as I have explained) is dealt with separately in the Magistrates Court Act from the Court’s civil and criminal jurisdictions.
Further, and in any event, while the order sought would result in the destruction or forfeiture of Mr Ross’ property rights in respect of the dogs, this was in a context where the dogs had been seized and were being retained on account of allegations of criminal offences under the Animal Welfare Act, and where one of the orders sought in the criminal proceedings against Mr Ross was forfeiture of the dogs. Indeed, the exercise of power under s 31C(2) is predicated upon the existence of “legal proceedings under this Act”. While there are other types of legal proceedings that may be brought under the Animal Welfare Act, a typical situation apparently contemplated by s 31C(2) is legal proceedings in the nature of a criminal prosecution for offences under the Animal Welfare Act. In my view, while an application for forfeiture has a civil aspect to its character, it can also be seen as related to, or ancillary to, the criminal prosecution of Mr Ross under the Animal Welfare Act.
In my view, there is therefore nothing in the inherent nature of the application that prevented it being instituted in the Criminal Division of the Court. Rather, I consider that the terms of r 29.01 quite naturally applied to the application, and permitted it to be instituted in the Criminal Division of the Magistrates Court. Even if it might also have been appropriately commenced in the Civil Division, given the absence of any specific assignment of this statutory jurisdiction to any particular Division of the Court, I am nevertheless satisfied it was permissible and appropriate for the application to have been instituted in the Criminal Division of the Court.
Finally, even if the application was one that ought properly to have been instituted in the Civil Division of the Magistrates Court, I do not think this avails Mr Ross on this appeal.
It was put by counsel for Mr Ross that jurisdiction is conferred on the particular Divisions of the Magistrates Court, with the result that proceedings instituted in the wrong Division are without jurisdiction. I do not agree with this construction of the Magistrates Court Act; at least not in the context of the application in the present case.
The jurisdiction under s 31C(2) of the Animal Welfare Act is conferred on the Magistrates Court, not on a particular Division. The Magistrates Court Act does contain some provisions which prescribe the manner in which the Court’s jurisdiction is to be exercised or administered through the various Divisions. Where proceedings are commenced or conducted in a manner that does not conform to these prescriptions, and the non-conformity is not addressed by the Magistrate through an order under s 10AB or s 10B of the Magistrates Court Act (which enable the Court to hear and determine a matter on the basis it is sitting in another Division), then it may be that this will result in orders made by the Court in the ‘wrong’ Division being set aside. Even if not lacking jurisdiction in the strict sense, if the error is one that goes to the very nature and substance of the procedure by which the matter is to be conducted, then the error may require that outcome. Such orders have been made, for example, when a claim was wrongly treated and heard as a claim in the Court’s Civil (Minor Claim) Division, given the obvious significance of this error to the manner in which the matter was heard (inquisitorial and without representation, versus adversarial and with representation), and to the rights of review or appeal (review by the District Court, versus appeal to the Supreme Court).[4]
[4] See, for example, Spanos v B & K Paton Pty Ltd [1998] SASC 6879 at [53]-[55]; Hollow v Maragozidis [2001] SASC 375 at [26]; FA & SP Holland Pty Ltd v Bayside Insurance Brokers Pty Ltd [2014] SADC 138 at [35]-[37].
But here any irregularity in the form or procedure adopted was not one that went to jurisdiction, or was otherwise of this fundamental nature. Mr Ross has not suffered any prejudice by reason of the application being pursued in the Criminal Division of the Magistrates Court rather than its Civil Division. The application was made in writing, and in a form that identified the terms of the order sought, and the section of the Animal Welfare Act under which the order was sought. The application also set out in writing the grounds on which the orders were to be sought. The application was brought in proceedings in which Mr Ross was a party, and was served on Mr Ross. Mr Ross appeared, and was legally represented, at all three hearings in relation to the matter. Mr Ross did not ever suggest that the application should have been brought in separate proceedings in the Civil Division of the Magistrates Court. Had he done so, any irregularity might relatively easily have been cured – for example, by reason of an order made under s 10B of the Magistrates Court Act.
For these reasons, and to the extent there was any irregularity in the form used, or the procedure adopted, by the applicant, I do not think it is a complaint properly raised on appeal, or that otherwise provides a basis for the appeal to be allowed.
Ground 2: Order defective
In relation to contention (ii), I do not think that the inclusion of the words “transferred into the care of the Minister” in the order made by the Magistrate is of any moment. While the impugned words were unnecessary, and a departure from the articulation of the relevant power in s 31C(2) of the Act, I do not think they altered the meaning of the order in any material way, or otherwise made the order one that was outside of, or beyond, the Magistrate’s powers.
Nor was the inclusion of the impugned words in the order reflective of any misunderstanding or misapprehension by the Magistrate of the exercise of the Court’s jurisdiction under s 31C(2) of the Act. That is particularly so given that, in paragraph [13] of his reasons, the Magistrate recited the order he intended to make in terms that did not include those words.
In relation to contention (iii), I do not think it matters that the order referred to the dogs having been seized by “the RSPCA”. The application was correctly brought in the name of the applicant (Ms Adams), as an inspector under the Act. The Magistrate commenced his reasons by correctly describing Ms Adams as the applicant. There was also no dispute below that Ms Adams seized the dogs from Mr Ross. In circumstances where Ms Adams was an inspector employed by the RSPCA, I do not think anything turns on the fact that on occasions, both later in his reasons and in his order, the Magistrate referred to the RSPCA rather than Ms Adams. I do not consider that this slip by his Honour was reflective of any relevant misunderstanding or misapprehension.
In relation to contention (iv), I also do not think it matters that the terms of the order did not identify the dogs the subject of the order. While it would have been better had the terms of the order identified the dogs in some way, I do not accept that there was, or is, any confusion about which dogs were intended to be captured by the order. The expert report of Dr Henderson identified each of the adult dogs individually by breed, gender, colour, weight, approximate age and microchip number. Both Mr Ross and his experts addressed the adult dogs individually in their evidence without any apparent confusion. The balance of the dogs were the issue of four of those adult dogs. There was no complaint or suggestion below of confusion about which dogs were the subject of the application. In the absence of any positive reason to think that there was, or is, any relevant confusion or ambiguity, I do not consider that this is a basis for interfering with the order made.
In relation to contention (v), it is true that most of the puppies the subject of the order were not physically seized from Mr Ross during the 23 October 2018 seizure. However, that does not mean that they were not validly included within the order made under s 31C(2) of the Act. It seems to me inherent in what occurred that the puppies born and retained at the RSPCA shelter were likely seized and retained (upon and from their birth) under the inspector’s powers pursuant to s 30(1)(f) or s 31A(1)(c) of the Act. If so, then they were dogs “seized and retained” under the Act for the purposes of s 31C(2)(a), and hence validly subject to an order under s 31C(2). As mentioned below, it would have been preferable had this matter been addressed in an affidavit filed by or on behalf of the applicant. But in the circumstances as they transpired below, and where the issue of the inspector’s power to seize and retain the puppies was not put in issue, I am not persuaded that it provides a proper basis to interfere on appeal.
Grounds 3 & 4: Denial of procedural fairness and lack of evidence
In response to contentions (vi) and (vii), I accept that it would have been preferable had the Magistrate required that the applicant provide affidavit evidence of the matters upon which she relied. While the Magistrate was right to appreciate that it was desirable that the application be dealt with expeditiously, and to focus upon the matters about which there was real dispute, I consider that this could have been achieved while at the same time requiring that the applicant put on affidavit material in support of the matters upon which she relied, and which were necessary to establish the basis for the Court’s exercise of power under s 31C(2) of the Act.
However, I do not accept that it was necessary, or even appropriate, to further adjourn the matter so that the matter might be conducted as a “trial”. To my mind, the Magistrate got the balance right by permitting an adjournment to enable Mr Ross to gather the expert evidence upon which he sought to rely, but by then proceeding to hear the matter. By its very nature, the application was relatively urgent, and a matter that ought to have been conducted in an efficient and expeditious manner. While the Magistrate did not ultimately hear any oral evidence, this was a function of the way in which the parties elected to proceed. Neither party required that the experts, or any other person, give oral evidence or otherwise be presented for cross-examination.
Despite my conclusion that it would have been preferable had the applicant been required to file affidavit evidence, I do not think this is a sufficient basis upon which to allow the appeal. In all the circumstances, I do not think there was any denial of procedural fairness or other error in the manner in which the proceedings were conducted.
The parties, including Mr Ross, acquiesced in an informal approach to the application. While Mr Ross did object to the application being determined without evidence at the first hearing (on 15 January 2019), the Magistrate acceded to this submission and adjourned the matter to permit Mr Ross an opportunity to have the dogs inspected by his own experts. When the hearing resumed on 23 January 2019, the parties were given an opportunity to, and did, tender the evidence upon which they relied. While the parties, and in particular the applicant, also relied upon several matters put from the bar table, there does not appear to have been any challenge to the Magistrate receiving this “evidence” from the bar table. While Mr Ross did maintain his opposition to the order being made, including on the basis that the evidence did not establish that it was unreasonable or impractical for the RSPCA to retain the dogs, there was no objection to the form or process of the hearing or to the Magistrate receiving some of the evidence from the bar table.
Mr Ross relies upon the decision in Theofylatos v Animal Welfare Authority[5] in support of his contention that he was denied procedural fairness. While that case contains a useful consideration of the relevant principles, including the decision of the High Court in Sali v SPC,[6] it ultimately turned on its facts and is distinguishable from the present case. In that case the owner of the animals was denied an adjournment to enable him to marshall his evidence in opposition to the order sought, whereas in this case Mr Ross was afforded (and took) that opportunity.
[5] Theoflyatos v Animal Welfare Authority [2013] NTSC 61 at [20]-[23].
[6] Sali v SPC Ltd (1993) 67 ALJR 841 at [10]-[11].
In the circumstances, I do not accept that the general complaints in contentions (vi) or (vii) have been made out.
For reasons to be elaborated upon below in the context of some of the more specific grounds of appeal, I also consider there was a proper basis for the Magistrate to make the factual determinations he did. The real area of dispute was in respect of the requirement that the retention of the dogs be “unreasonable or impractical” under s 31C(2)(c). In that context, the Magistrate had before him written reports from three experts. It is apparent from his Honour’s reasons that he was significantly informed by this material, and in particular what he identified as the area of common ground between the experts – namely, that it was not in the welfare or interests of the dogs that they remain in the shelter for any lengthy period of time. The other significant matter was the extent of the impracticality or imposition associated with keeping the dogs at the shelter. While this was a matter that perhaps should have been the subject of affidavit evidence, in all the circumstances I do not consider that it was impermissible for the Magistrate to receive evidence about this issue in the informal manner in which he did.
In relation to contention (viii), for reasons related to those set out above, while it would have been preferable had he done so, I do not think it was erroneous of the Magistrate to proceed without affidavit evidence of the matters in s 31C(2)(a). It was reasonable, in my view, for the Magistrate to proceed on the basis that neither ss 31C(2)(a) or (b) were in dispute. The application document, signed by the applicant, said that the dogs were seized and were being cared for by the RSPCA; and the report of Dr Henderson referred to Ms Adams (described as “the lead RSPCA Inspector”) being present on the day of the seizure. While there was no affidavit evidence from Ms Adams confirming her role in seizing and retaining the dogs under the Act, by the same token, Mr Ross did not ever suggest below that these were matters in dispute. Dr Henderson’s report reveals that Mr Ross was present at the time of the seizure and hence would have been well placed to observe what occurred, and in particular to observe the role of Ms Adams. There did not, and still does not, appear to be any positive basis to challenge that Ms Adams was an inspector under the Act, and validly exercised her powers of seizure. If Mr Ross had wished to contest this, then he ought to have put it in issue in some way. If it had been put in issue, then Ms Adams would have had an opportunity to address the matter in the hearing before the Magistrate. I do not think this matter is properly raised on appeal given the way the proceedings were conducted below.
In relation to contention (ix), the Magistrate did receive some evidence as to the state of the dogs following their seizure. The report of Dr Henderson was not confined to the condition of the dogs as at the date of seizure. Rather it detailed the observations made by Dr Henderson based on her examination and treatment of the dogs over a period of seven weeks following their seizure, and hence through to at least mid-December 2018. The evidence of Dr Henderson was that the dogs remained in very poor health as at that date, and that it was inhumane for the dogs to remain in the RSPCA shelter. In addition to this, the Magistrate also received evidence from Mr Ross’ experts, based upon their examination of the dogs on 16 January 2019. While their views differed from those expressed by Dr Henderson in some respects, they agreed that it was inappropriate for the dogs to remain at the RSPCA shelter. It follows in my view that there was ample evidence to support the Magistrate’s conclusion as to the current state of the dogs and the appropriate or reasonableness (from an animal welfare perspective) of the circumstances in which they were being kept.

It is true that the only direct evidence as to the cost of the care being provided by the RSPCA was the reference to a figure of about $50,000 mentioned in submissions by the applicant. Again, it would have been preferable had this estimate of the costs incurred been deposed to in an affidavit from someone with direct knowledge of the costs incurred. That would be particularly so if precision about the costs were a matter of significance. Here, however, the precise cost does not appear to have featured in the Magistrate’s reasons. Certainly there was no express reliance upon any particular cost. And to the extent that the Magistrate was influenced by some general understanding of the level of costs being incurred, in my view the evidence of Dr Henderson as to the nature and extent of the care required by the dogs was ample basis for concluding that very significant costs were being incurred.
As for the practicalities of a third party caring for the dogs, I do not think this was a matter that the Magistrate was required to consider. The issue under s 31C(2) was whether it was unreasonable or impractical for the inspector (or the RSPCA) to retain the dogs. While it might in some cases be relevant to consider the practicalities of the inspector retaining an animal by having it cared for by a third party, there was no reason to think that this would be a viable or practical option in this case.
Mr Ross adduced some very general evidence to the effect that there was a third party breeder who could house the dogs at a cost of $2,000 that would be met by Mr Ross. However, given Dr Henderson’s view as to the poor condition of the dogs and the extent of the care they required it is difficult to see how this could reasonably or practically be achieved at some third party facility. In short, I do not accept that the Magistrate erred in reaching the conclusions he did despite the absence of any more detailed evidence as to the practicalities of a third party caring for the dogs.
Grounds 5 & 6: Failure to consider relevant considerations or other error in exercise of discretion
In relation to contention (x), I do not accept that the Magistrate failed to make a finding that it was “impractical or unreasonable” for the animals to continue to be retained until the proceedings have been concluded. While these were disjunctive requirements such that it would have been sufficient that the Magistrate was satisfied of one of them, as it happens his Honour appears to have been satisfied as to both of them.
As is apparent from my earlier summary of the Magistrate’s reasons, and focussing upon the welfare of the dogs, his Honour concluded that it was unreasonable that they continue to be held in the shelter for the lengthy period of time likely before the criminal proceedings against Mr Ross will be completed. However, his Honour also went on to identify the significant practical responsibility or imposition upon the RSPCA of continuing to care for the dogs throughout that period.
In my view, there is no merit in this contended error.
In relation to contention (xi), I do not accept the challenge to the Magistrate’s reasoning to the effect that the Minister’s powers were not engaged until an order was made. But more importantly, I do not think that this was relevant to the decision to be made. Clearly the power under s 31C(2) was one vested in the Court. Either a basis for the exercise of that power by the Court was made out, or it was not. In my view it was.
Allied to this, and in relation to contention (xii), I do not think it was necessary for the Magistrate to hear from the Minister before making the order he did. While some general consideration of what might happen to the dogs were an order to be made might (and indeed did) inform the decision in a very general way, precisely what in fact will happen to the dogs is a matter for the Minister to determine in due course (assuming an order is made). The purpose of an order under s 31C(2) is to place the dogs in the control of the Minister, for the Minister to then to exercise his or her discretion as to whether and in what manner, to sell, destroy or otherwise dispose of the dogs.
As to contentions (xiii) and (xiv), I am not satisfied that the Magistrate failed to have regard to any circumstances or consideration that he was required to take into account either in forming his view that it would be unreasonable or impractical for the dogs to be retained pending conclusion of the criminal proceedings against Mr Ross, or in exercising his discretion to make an order under s 31C(2) more generally.
In my view the Magistrate correctly approached consideration of what would be unreasonable or impractical for the purposes of s 31C(2)(c), and the exercise of his discretion more generally, with a focus upon the welfare of the dogs, including what if anything could be done to best protect their welfare and the extent of the cost or imposition of doing so. I consider that the Magistrate addressed the matters directly relevant to these considerations – including the condition of the dogs both at the time of seizure and subsequently. For the reasons earlier set out, I do not think that the Magistrate was required to attach any weight to the possibility of a third party caring for the dogs in the circumstances of the present case. Nor do I think that the Magistrate was required to consider the possibility that the dogs being returned to Mr Ross. Given the dogs’ precarious condition, and the unresolved allegations of criminal ill treatment of the dogs by Mr Ross, that was not a reasonable or practical option.
In terms of the other matters that Mr Ross complains were overlooked by the Magistrate, and while the adequacy of the Magistrate’s reasons is not challenged, it is important to remember that a judicial officer’s obligation to give adequate reasons does not usually extend to a requirement that each and every matter relevant to the exercise of a discretion be expressly referred to in the reasons.[7] As a corollary of this, it cannot always be assumed from the failure to make express reference to a matter that it was not taken into account. That is particularly so in circumstances such as the present, where the Magistrate made reference to various of Mr Ross’ submissions and the reasons were delivered promptly after the hearing.
[7] Hamra v The Queen (2017) 260 CLR 479 at [42].
In any event, and turning to the matters that Mr Ross complains were overlooked by the Magistrate, I do not think the Magistrate was required to have regard to the interests of Mr Ross, either in terms of the commercial value of the dogs or their potential value to him as evidence in the criminal proceedings against him. Nor do I think that the Magistrate was required to have regard to the merits, or “not so heinous” nature, of the criminal charges against Mr Ross.
Finally, I do not think any delay by Ms Adams or the RSPCA in bringing the application was a matter of any moment to the ultimate decision to be made by the Magistrate. To the extent that the explanation for the delay was relevant, it was largely explained by the time taken for Dr Henderson to undertake the necessary assessments and treatment of the dogs, and to prepare her detailed report. In my view, the timing of the application was relevant only in the sense that the welfare of the dogs, and the reasonableness and practicality of continuing to retain them, fell to be assessed by reference to the circumstances as they existed at the time the application was heard and determined. That is what the Magistrate did.
That leaves contention (xv). As Mr Ross has not identified any alleged errors beyond those already addressed, I reject the general complaint in this contention.
In summary, I am not satisfied that Mr Ross has established that the Magistrate failed to take into account any relevant consideration, erred in his conclusion that it was impractical and/or unreasonable for the dogs to continue to be retained by the RSPCA until the conclusion of the criminal proceedings, or otherwise erred in the exercise of his discretion under s 31C(2) of the Act.
Conclusion
For the reasons set out above, I dismiss the appeal.