RSPCA NSW (Inspector Milton) v Elliott - [2012] NSWSC 585

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 180
Category: 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

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.

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Details

Case: [2012] NSWSC 585
Decision Date: 01 June 2012

CaseChat Overview and Summary

In the case of RSPCA NSW (Inspector Milton) v Elliott, the appellant, RSPCA NSW, appealed against a decision of the Local Court which dismissed charges against the respondent, Elliott, under sections 5(3)(c) and 8(1) of the Prevention of Cruelty to Animals Act 1979. The dispute centred around the interpretation of the term 'person in charge' as defined in section 4 of the Act, in the context of greyhounds that were not owned by Elliott. The primary issue before the court was whether the Local Court judge had misunderstood and misapplied the decision in Song v Coddington when determining the scope of the term 'person in charge'. The court was required to determine whether the appeal raised an error of law, specifically whether the Local Court had erred in its interpretation of the term 'person in charge'.

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.

Orders