Supreme Court
New South Wales
Medium Neutral Citation: RSPCA NSW (Inspector Milton) v Elliott [2012] NSWSC 585 Hearing dates: 4 May 2012 Decision date: 01 June 2012 Jurisdiction: Common Law Before: Schmidt J Decision: 1. The appeal is upheld.
2. Bartley LCM's decision is set aside.
3. The matter is remitted to the Local Court to be determined according to law.
4. Unless the parties approach within 7 days, the Court's order as to costs is that the first defendant must bear the plaintiff's costs, as agreed or assessed.
Catchwords: APPEAL - appeal against Local Court decision - charges under s 5(3)(c) and 8(1)Prevention of Cruelty to Animals Act 1979 - definition of 'person in charge' in s 4 - greyhounds - greyhounds not owned by defendant - whether his Honour misunderstood and misapplied the decision Song v Coddington - construction of term 'person in charge' - whether appeal raised an error of law - error established - appeal upheld - costs Legislation Cited: Control Act 1982 (Cth)
Crimes (Appeal and Review) Act 2000
Export Prevention of Cruelty to Animals Act 1979
Prevention of Cruelty to Animals (General) Regulation 1996
Public Service Act 1999 (Cth)Cases Cited: David Morse (Office of State Revenue) v Chan [2010] NSWSC 1290
Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1
Kostas v HIA Insurance Services Pty Limited [2010] HCA 32; (2010) 241 CLR 390
Marshall v Director-General Department of Transport [2001] HCA 37; (2001) 205 CLR 603
Residual Assco Group v Spalvins [2000] HCA 33; (2000) 202 CLR 629
Song v Coddington [2003] NSWSC 1196; (2003) 59 NSWLR 180Category: Principal judgment Parties: Courtney Louise Milton, RSPCA NSW (Plaintiff)
Johanna Elliott (First Defendant)
The Honourable G Bartley LCM (Second Defendant)Representation: Counsel:
Mr P Bodor QC and Mr M Gallagher
Mr J Sheller and Mr G O'Mahoney (First Defendant)
Solicitors:
Smythe Wozniak Legal (Plaintiff)
Greg Walsh & Co (First Defendant)
File Number(s): 2011/318960 Publication restriction: None Decision under appeal
- Jurisdiction:
- 9109
- Date of Decision:
- 2011-09-09 00:00:00
- Before:
- Bartley LCM
Judgment
On 9 September 2011, Ms Elliott was acquitted of 23 offences laid by the plaintiff under s 5(3)(c) and s 8(1) of the Prevention of Cruelty to Animals Act 1979 ('the Act'). By summons filed in October 2011 under s 59(2)(a) of the Crimes (Appeal and Review) Act 2001, the plaintiff appeals the decision of Bartley LCM acquitting Ms Elliott of those offences, as involving an error of law. His Honour concluded that it had not been shown that Ms Elliott was 'a person in charge' of the greyhounds in question, applying a decision of Greg James J in Song v Coddington [2003] NSWSC 1196; (2003) 59 NSWLR 180 as to the proper construction of that term.
The plaintiff did not suggest that his Honour was not bound to apply the decision in Song, or that it was wrongly decided. The case pressed was that his Honour misunderstood and misapplied the decision in
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- Case
- [2012] NSWSC 585
- Decision Date
CaseChat Overview and Summary
The court found that there was an error of law in the Local Court's interpretation of the term 'person in charge'. The court held that the Local Court judge had misunderstood and misapplied the decision in Song v Coddington, leading to an incorrect application of the law. The court emphasised that the term 'person in charge' should be given its ordinary meaning and should not be narrowly interpreted. The court held that the Local Court judge had failed to consider the broader context in which the term 'person in charge' was used, resulting in an error of law. Consequently, the appeal was upheld, and the decision of the Local Court was quashed.
The court ordered that the appeal be upheld and that the decision of the Local Court be quashed. The matter was remitted to the Local Court for rehearing, with the direction that the term 'person in charge' should be interpreted in accordance with its ordinary meaning. The court also ordered that costs of the appeal be paid by the respondent, Elliott.
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