Ryan v RSPCA SA Inspectorate Inc - [2018] SASC 53

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
RYAN v RSPCA SA INSPECTORATE INC
[2018] SASC 53
Judgment of The Honourable Chief Justice Kourakis
26 April 2018
ANIMALS - VARIOUS STATUTORY PROVISIONS - PREVENTION OF CRUELTY TO ANIMALS - OFFENCES - CAUSING UNNECESSARY PAIN AND CRUELLY ILLTREATING
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - FROM INTERLOCUTORY DECISIONS
Appeal against a decision of a Magistrate of the Port Pirie Magistrates Court dismissing an interlocutory application brought by the appellant seeking summary relief against the respondent in a form of an order that it return to her 23 Pomeranian dogs it had seized.
Held (dismissing the appeal):
1.     The Magistrate did not err in his discretion in dismissing the interlocutory application (at [8]).
2.     The controversy between the RSPCA and Ms Ryan involves complex questions of law and fact, which are not capable of resolution in chambers and can only be determined after an evaluation of the competing evidence at trial (at [8]-[50]).
Held (dismissing the interlocutory application brought in this Court):
1.     Questions of apprehended harm are factual questions which can only be determined at trial (at [53]).
Animal Welfare Act 1985 (SA) ss 3, 28, 31A, 31B, 34B; Magistrates Court (Civil) Rules 2013 (SA) rule 8, referred to.
Spencer v Commonwealth (2010) 241 CLR 118; Fancourt and Anor v Mercantile Credits Ltd (1983) 154 CLR 87; Ceneavenue Pty Ltd & Ors v Martin & Ors (2008) 106 SASR 1, applied.

WORDS AND PHRASES CONSIDERED/DEFINED
"Unnecessary harm", "may if urgent action is not taken"

RYAN v RSPCA SA INSPECTORATE INC
[2018] SASC 53
Magistrates Appeal: Civil

KOURAKIS CJ: This is an appeal against a decision of a Magistrate made in the Port Pirie Magistrates Court on 5 January 2018, dismissing an interlocutory application brought by the appellant seeking summary relief against the respondent in the form of an order that it return to her 23 Pomeranian dogs it had seized.
Ms Cheryl Doudle is an employee of the Royal Society for the Prevention of Cruelty to Animals and an inspector appointed pursuant to s 28 and for the purposes of the Animal Welfare Act 1985 (SA) (the Animal Welfare Act). On 3 May 2017 she attended Ms Ryan’s rural property at Baroota (the Baroota property), located in the mid-north of the State where, exercising her powers under the Animal Welfare Act, she seized 23 chickens, 23 Pomeranian dogs and four German Shepherd dogs, all the property of Ms Ryan. One of the German Shepherds was euthanized on site,[1] and the other three were euthanized at a later date, to end the suffering caused by age-related arthritis. Two of the chickens have since died of causes unrelated to the way in which they were kept and arrangements have recently been made to return the remaining chickens to Ms Ryan. Many other dogs and other animals were left on the Baroota property.
[1] The course of action was within the powers of a veterinarian under s 34B of the Animal Welfare Act 1985 (SA).
On 13 September 2017 Ms Ryan brought proceedings in the Magistrates Court against RSPCA SA Inspectorate Inc (the RSPCA)[2] seeking the return of the animals that were seized. On 29 September 2017, Ms Ryan made an interlocutory application seeking summary relief by way of an order directing the RSPCA to return the animals. The RSPCA accepts that the Pomeranian dogs remain in its custody.
[2] The claim was first brought against the RSPCA but by later amendment against the RSPCA Incorporated SA Inc.
Section 31A of the Animal Welfare Act provides that an inspector appointed under it may, if he or she suspects on reasonable grounds that an animal is suffering unnecessary harm, seize and retain that animal for treatment and care. Harm is defined by s 3 of the Animal Welfare Act to mean ‘any form of damage, pain, suffering or distress (including unconsciousness), whether arising from injury, disease or any other condition’.
The RSPCA’s defence to Ms Ryan’s action is that the Pomeranian dogs are being cared for by it in order to safeguard them from unnecessary harm which they would suffer if they were returned to Ms Ryan. On the interlocutory application the RSPCA contends that its defence is reasonably based and that the action should be allowed to proceed to trial in the ordinary way.
The RSPCA particularises the unnecessary harm the Pomeranian dogs would suffer if returned to Ms Ryan to be:
·dental damage;
·skin conditions caused by flies or fleas; and
·gastrointestinal infections.
Ms Ryan contends that the very veterinary reports on which the RSPCA relies shows that the Pomeranian dogs were not suffering any unnecessary harm at the time they were seized, and would not suffer any unnecessary harm if returned to her.
I would dismiss the appeal. The controversy between the RSPCA and Ms Ryan involves complex questions of law and fact, which are not capable of resolution in chambers and can only be determined after an evaluation of the competing evidence at trial.[3] For the reasons which follow, the Magistrate was right to dismiss Ms Ryan’s interlocutory application.
[3] Spencer v Commonwealth (2010) 241 CLR 118.
Summary Judgment in Principles
Rule 8 of the Magistrates Court (Civil Rules) 2013 (SA) (MCR) provides:
8.(1)     Where a party wishes to obtain –
(a)summary judgment in, or the disposal of the whole or part of, an action; or
(b)immediate relief,
he or she may do so on interlocutory application accompanied by an affidavit specifying –
(c)that there is no reasonable basis for the action or defence.
(2)     The Court may –
(a)enter judgment accordingly;
(b)grant the whole or part of the relief sought, and order that the action continue in relation to the part not disposed of;
(c)make an order for an early trial; or
(d)make any other order.
(3)     The Court may enter a summary judgment based on an Enforceable Payment Agreement verified by an affidavit.
In Ceneavenue Pty Ltd and Others v Martin and Others,[4] with respect to r 232(2) of the Supreme Court Civil Rules 2006 (SA) which provides that summary judgment may be given for a plaintiff if there is no reasonable basis for defending the applicant’s claim, Debelle J said:[5]
[92]For these reasons, r 232(2)(a) does not represent a significant departure from the previous practice in relation to an application for summary judgment by a plaintiff on the ground that the defendant has no arguable defence. On an application for summary judgment by a plaintiff, the court will examine whether the asserted defence is real or fanciful. It will consider whether the defence is bona fide. It will assess whether the defendant has a real as opposed to a fanciful case. It will have regard to the injunction in Fancourt which is in similar terms to that in Agar v Hyde. The applicant for summary judgment must show that it is clear that the other party has no arguable case. The test does not require the court to determine whether the defendant will succeed. Instead, the court must consider only whether the ground or grounds relied on by the defendant are reasonably arguable. The test in r 232(2)(a) is not, I think, materially different from the test whether there is a real question to be tried.
[4] (2008) 106 SASR 1.
[5] Ceneavenue Pty Ltd and Others v Martin and Others (2008) 106 SASR 1 at [92].
A summary judgment is final and the power to give it should be exercised with great care. It should not be exercised unless it is clear that there is no real question to be tried.[6] An order should not be made if the application requires consideration of apparently complex questions of fact.[7] On the other hand, a defence may have no reasonable prospect of success even if it cannot be said that it is hopeless or bound to fail.
[6] Fancourt and Another v Mercantile Credits Ltd (1983) 154 CLR 87 at 99.
[7] Spencer v Commonwealth (2010) 241 CLR 118 at [26].
The Animal Welfare Act
Section 31A(1) of the Animal Welfare Act provides:
31A—Special powers relating to animals
(1)An inspector may examine an animal and its living conditions and, if the inspector suspects on reasonable grounds that the animal is suffering or may if urgent action is not taken suffer unnecessary harm, do 1 or more of the following:
(a)     provide treatment and care for the animal;
(b)     cause the living conditions of the animal to be modified;
(c)     seize and retain the animal for treatment and care.
The proper construction of subparagraph (c) must be informed by the section’s controlling clause. The provision of treatment or care in the place where an animal is found, the modification of the living conditions in which it is found, or the seizure and taking away of the animal, are only authorised to the extent that the animal is suffering, or may suffer, from unnecessary harm. The treatment provided after an animal is taken away must therefore also be for the purpose of preventing the animal suffering unnecessary harm. Likewise, retaining custody and care of an animal is only authorised if it would suffer unnecessary harm if it were returned to its owner.
What is or is not harm is, of course, a question of fact. However, it is important to bear in mind that it is inherent in the life cycle of all animals that there is a deterioration in health with age and also as a consequence of the very activities of living.
The question of what harm is ‘unnecessary’ must be informed by the inevitability of declining health and, ultimately, death. There is a normative judgment inherent in the term ‘unnecessary’. That judgment concerns the living conditions which the community expects its members to provide to animals in their care. The longevity and quality of the life of animals, like humans, may be extended and improved by ever increasing expenditure, but the concept of unnecessary harm implies a reasonable limit on the standard of the living conditions which the community expects its members to provide to animals.
Moreover there is also a marked difference, as one of the veterinary surgeons who provided a report in this matter observed, between conditions in rural and city locations. Ms Ryan, in responding to criticism of the conditions in which she kept the Pomeranians, argued that her dogs like to tear up bedding and lie in the dirt. I observe that it is also notorious that they like to bury bones. Is it the case that diseases and other conditions inherent in an animal’s natural habitat and lifestyle are now considered to be unnecessary, but that the diseases of urban confinement, including psychological diseases, are now considered to be a necessary result of urbanisation? Of course, in applying the Animal Welfare Act, courts will make decisions on the particularity of the case before them. Much may depend on the particular breed and health of the animal and the detail of the conditions in which the animal is, or will be, kept. Nonetheless, the normative standard to be applied will involve a consideration of the broad question of community expectations.
Application of the phrase ‘may if urgent action is not taken suffer’ is also problematic. The degree of likelihood and the immediacy of the possible harm must be factored into an assessment of whether or not that condition is satisfied. Otherwise the reach of s 31A of the Animal Welfare Act could not be kept within sensible limits.
The ultimate question on this appeal is therefore whether the RSPCA’s defence that the Pomeranian dogs were suffering, and would, if returned, suffer unnecessary harm, has a reasonable basis. That question in turn involves both the factual question whether there is a real evidentiary basis to its claims of harm, and the mixed question of law and fact whether the RSPCA has an arguable case that the harm is unnecessary.
The Evidential Material
On the interlocutory application before the Magistrate, the evidence of poor health of the Pomeranian dogs and the conditions on the Baroota property which had contributed to their maladies came primarily from the affidavits of Ms Doudle and a veterinary surgeon, Dr Chelsea Smart.
Ms Doudle deposed that when she attended Ms Ryan’s property on 3 May 2017 the enclosures in which the dogs were kept were littered with rotting bones and uncollected faeces.[8] Ms Doudle deposed that the fur coats of the Pomeranians were generally dirty and dusty. The bedding provided was dirty and in a deteriorated state. The dogs had dug holes in which to lay in the dirt floor of the enclosures. Their food and water bowls were dirty. The sides of many of the water bowls were caked with a green slime. It should be noted however that Ms Ryan claims that the slime is difficult to control when using bore water. The rooves of shelters within the enclosures were full of overhanging cobwebs and the walls were covered in dirt.
[8] The build-up of faeces primarily concerned a large enclosure in which the German Shepherds were kept, a small area of which was effectively used as a toilet by the German Shepherds.
On the day of the inspection, Ms Doudle issued Animal Welfare Notices (notices) requiring improvements to the living conditions of more than 40 dogs which were left on the property.
The notices were issued pursuant to s 31B of the Animal Welfare Act. Section 31B provides that an inspector who believes on reasonable grounds that the provision of an animal welfare notice is warranted may, by written notice given to the owner of the animal, direct him or her to:-
·Provide the animal with such food, water, shelter, rest or treatment as the inspector thinks necessary; or
·Ensure that the animal is exercised in accordance with the stipulations in the notice; or
·Direct or require the owner to take other action specified in the notice that the inspector considers necessary for the improvement of the animal’s welfare.
It is an offence to fail to comply with the notice.
One of the notices issued by Ms Doudle required the removal of faeces and rotten bones on a weekly basis, provision and access to fresh, clean water, and removal of hazards like loose wire from the large German Shepherd enclosure. Another notice required that the Pomeranians housed in smaller enclosures be exercised for a minimum of 30 minutes per day.
A report of Dr Smart, who accompanied Ms Doudle on her inspection of the premises on 3 May 2017, was also received on the interlocutory application. Dr Smart had recently graduated from the University of Adelaide in 2016. She attended at the request of Ms Doudle, but was not employed by the RSPCA. Dr Smart observed four geriatric German Shepherd dogs on the property. Three of them were suffering degenerative osteoarthritic joint disease. They did not show any sign of dental disease. They were seized and taken away by the RSPCA inspectors. A fourth German Shepherd dog remained free ranging and did not appear to have osteoarthritic disease. Another geriatric white German Shepherd dog was not able to walk and was in ‘sternal recumbency on a soiled pillow on a dirt floor with no access to fresh food or water’. The dog suffered from marked muscle atrophy over the hips and hind limbs. Dr Smart decided that the most humane treatment was to euthanase the dog onsite rather than to attempt to move her.
Dr Smart observed two adult Pomeranian dogs and nine puppies in an outdoor pen about four square metres in size. The dogs were ‘adequately healthy’ but some showed signs of flea infestation, flea allergy dermatitis, general dermatitis and matted coats. Those dogs were not seized. Three puppies found housed inside the house on the premises appeared in good health and were not seized. Another adult Pomeranian dog was seen in a cage with her puppies and left there.
Housed in the backyard of the property were 15 animal runs which Dr Smart identified alphanumerically with the prefix letter B followed by a number. The runs numbered B1 and B2 were large outdoor enclosures fenced by chicken wire with open rooves and dirt floors. The floors were littered with debris, including animal carcasses (meat bones) and general rubbish. In B1 there were three adult German Shepherd dogs, estimated to be less than two years of age. They were ‘adequately healthy’. B2 housed four adult German Shepherd dogs. They were ‘adequately healthy’, but some had lesions on the tips of their ears akin to fly or flea bites. There was inadequate water in B1 and B2. The water was stagnant and appeared dirty. Those animals were not seized.
Nine runs, identified as B4 to B12, each housed three Pomeranian dogs except for B7 which housed only two Pomeranian dogs. These runs were an aviary-type, each sharing side walls and air spaces. The sides of the runs were solid iron to a height of approximately 30 cms and from that level extended upward in wire mesh. The runs were constructed such that there was a sheltered area towards the back of the enclosure while the front was more open to fresh air and sunlight. The runs ran east to west with the sheltered area to the west and were approximately one metre wide by five metres deep. The floors of the runs were dirt and were littered with animal carcasses (meat bones in various states of decay), faeces, rocks and general rubbish. The water supplied was stagnant and insufficient for the number of animals in each run.
After an individual examination of each dog, Dr Smart concluded that all of the dogs in B4 to B12 were ‘adequately healthy’. However, Dr Smart observed that the unspecified number of Pomeranian dogs in runs B4 to B12 suffered the following afflictions:
Health issues noted were: flea infestation; alopecic patterns suggestive of flea allergy dermatitis; generalised dermatitis; matted coats; periodontal disease. In my opinion, the former four issues occurred in direct response to adverse living conditions; namely squalor and parasitic infection. While the latter (periodontal disease) is likely a combination of nutrition and breed disposition due to poor mouth/dental conformation.
The Pomeranian dogs in runs B4 to B8 were not seized. However, the 12 Pomeranian dogs in runs B9-B12 were seized. Dr Smart explained the seizure of the 12 Pomeranian dogs in runs B9 to B12 as follows:
In my opinion the living conditions in runs B9-B12 were detrimental to animal welfare and warranted seizure, as these were much dirtier than other runs. All animals in runs B9-12 were seized by RSPCA inspectors (total seizure: N = 12) on the grounds of poor living conditions. In my opinion, with treatment for parasites, grooming and dental work; these dogs would be suitable for rehoming.
Dr Smart reported that 11 Pomeranian dogs were also seized from runs B13 and B14, which housed six and five dogs respectively. These runs were also an outdoor style run with dirt floors which were littered with similar debris to runs B4 through to B12. There was no fresh food available, the water was stagnant and was of insufficient quantity. Adequate rest areas and bedding were not supplied. Each dog was individually physically examined. Dr Smart again reported that all were ‘adequately healthy’ but noted more serious health issues with those dogs including:
·flea infestations;
·alopecic patterns suggestive of flea allergy dermatitis;
·generalised dermatitis;
·matted coats; and
·periodontal disease.
Dr Smart concluded that the living conditions of the 11 Pomeranian dogs were detrimental to their welfare such that seizure was warranted.

Dr Emma Clough is a veterinary surgeon employed by the RSPCA. She examined the 23 Pomeranian dogs on 4 May 2017.
All of the dogs examined by Dr Clough had a Body Condition Score (BCS) of no less than 4.5/9 and most achieved a score of 5/9, with two achieving a score of 6/9. Having regard to the variation in the actual weight of the dogs in absolute terms, it is implicit that the BCS takes into account the body structure of the breed of the dog and is most probably based on the visible and palpable fat layers of the dog. The numerical scale runs from one to nine, presumably with the lower numbers indicating a dog is undernourished and higher numbers indicating obesity. If that is so, all of Ms Ryan’s Pomeranian dogs were probably at, or close to, ideal weight.
It is difficult to be comprehensive about the state of the teeth of the Pomeranian dogs examined by Dr Clough because she did not make a note of the dentition of every dog. Tartar build-up, which may cause tooth or gum disease, is graded on a scale from zero to four. Eleven of the Pomeranian dogs were assessed at grade 1 or 2 tartar build-up. Other dogs were simply described as within normal limits. Several dogs had grade 4 tartar on one or a number of their teeth. A ‘mild’ wearing of teeth was observed in some dogs. Marked dental wear was observed in others. One dog had all but one of her incisor teeth missing, another had no incisor teeth at all. Several dogs had the roots of their teeth visible but no pulp was exposed.
Dr Clough opined that the animals with the most severe dental disease were also underweight, indicating a disease was limiting their ability to eat properly due to pain and/or difficulty prehending food. However it is difficult to understand how Dr Clough reached that conclusion given the BCS score to which I earlier referred.
Many of the dogs had dry seborrhoea skin conditions, often around the rump or lumbar area. One dog was noted as having ‘military’ dermatitis. Several dogs had live fleas or flea dirt in their coats. One had alopecia of her caudal thighs, a condition associated with flea allergic dermatitis. One dog, which was treated with a shampoo for the seborrhoea, demonstrated that she was very pruritic after shampooing and a short course of anti-inflammatory steroids was given. Dr Clough’s report explains that the causes of skin disease include climatic conditions and environmental allergens and fleas. Dr Clough reported that 16 of the 23 dogs examined had skin disease. She concluded that fleas were the inciting cause of the dermatitis she observed. Dr Clough explained that fleas were commonly found in dirt flooring especially where adequate flea control measures were not taken and a large number of animals were kept in close proximity.
Dr Clough also reported that several of the dogs had matted coats and faecal soiling around their anal area. Several of the dogs had diarrhoea or loose stools.
Ms Doudle visited Ms Ryan’s property again on 14 June 2017. She found that conditions had improved but that there was still a build-up of faeces and rotting bones in the enclosures. Some of the water containers had been cleaned but many were still coated in thick green slime. Ms Doudle issued three further notices. With respect to the Pomeranian dogs, the notices required that:
·all faeces must be removed;
·all bones and rubbish must be moved;
·the dogs must have access to fresh, clean water; and
·the dogs be exercised for a minimum of 30 minutes per day.
Ms Doudle re-attended the property on 7 September 2017. The living conditions of the remaining German Shepherd dogs had improved but, in Ms Doudle’s opinion, were still not compliant with the notices she had issued. Several dogs were still infested with fleas. Ms Doudle advised Ms Ryan to clean the water bowls of the Pomeranian dogs as the bowls were still caked in green slime.
Ms Doudle did not issue any further notices on 7 September 2017 while she was on the Baroota property. However, for reasons which are not adequately explained in her affidavits, notices were issued on 19 September 2017.
In an affidavit sworn on 11 December 2017 Ms Doudle deposed to her continuing belief that the Pomeranian dogs were in need of care:
I continue to hold the view that the Pomeranians will be at risk if they were returned to the APPLICANT. Despite numerous Animal Welfare Notices and verbal directions that the APPLICANT has had over the years and more recently during 2017, she has not sufficiently improved living conditions. I am concerned that [a Swiss Shepherd with poor mobility] condition is similar to the four German Shepherds seen during the May 2017 inspection. Despite the seizure and subsequent euthanasia of these German Shepherds, the APPLICANT continues to deny that there was a problem.
…
Further, the APPLICANT continues to have a large number of horses, foals and dogs in her care, and I believe she does not have the sufficient support and facilities to be able to provide proper and adequate care.
Dr Ward is a full time employee of the RSPCA and a veterinary surgeon. He did not inspect Ms Ryan’s property but deposed to the likely effects on the health of the dogs of conditions of the kind described by Ms Doudle and Dr Smart. He deposed that dirt floors generated a high risk of infestation with infectious agents. Dr Ward explained that adequate fly and flea control is impossible in outdoor accommodation in a dry and seasonally hot geographical location. Dr Ward deposed that persistent fly bites caused ear margin dermatitis. I observe however that Dr Clough did not record any evidence of that condition on the Pomeranian dogs. Dr Ward described the effect of fleas on dogs as follows:
Fleas caused skin irritation and dermatitis in a number of the dogs that were seized. The lifecycle of the flea is such that the larval stages that live off the dog survive well in dirt areas and they cannot easily be eliminated in such an environment. Flea treatment of these dogs (a number of which had significant burdens) seem to be totally inadequate. Fleas can also transmit intestinal tape worms.
There is no recorded evidence of intestinal tape worms affecting the Pomeranian dogs.
Dr Ward expressed the opinion that dirt encrusted bones had caused excessive wear on the teeth of some of the Pomeranian dogs and had caused gum disease, periodontal disease and tooth loss on others.
Dr Ward concluded that if the Pomeranian dogs were returned to Ms Ryan’s property they would be placed at risk of dental damage, and flea and fly irritation conditions. Dr Ward also warned that the poor hygiene and, in particular, leaving large amounts of faeces in the runs, created a high risk that the dogs would be infected with intestinal pathogens including hookworm, giardia, and the most potentially devastating of such diseases, gastroenteric parvovirus. Parvovirus is passed from dog to dog by faecal to oral contact and is an extremely hardy and persistent organism.
Ms Ryan adduced evidential material from veterinary surgeons who had treated her animals in the past in support of her application for summary judgment.
A note from the veterinary surgeon, Dr Roger Absalom, supported the return of the dogs to Ms Ryan. Dr Absalom stated that Ms Ryan had always followed his advice about the treatment of animals in her care. Dr Absalom, who had visited Ms Ryan’s property and had inspected her animal enclosures, made the following observations about them:
Whilst the enclosures differ from what might be expected in a town or city setting, they are consistent with what might be, and is, seen on a rural, working property.
Dr Absalom spoke of the care and compassion Ms Ryan showed for her animals.
Ms Ryan also relied on an affidavit of another veterinary surgeon, Dr Michael Adams. He had not visited the property but deposed that he had treated up to five of the dogs which were seized by the RSPCA. Dr Adams attended the RSPCA animal shelter in Lonsdale on Wednesday, 27 September 2017 to examine the Pomeranian dogs. He observed that seven of the dogs had mild dental disease and five had moderate dental disease generally consistent with age. No overt oral discomfort was detected. He supported the return of the dogs to Ms Ryan. Dr Adams expressed concern that the dogs were fitted with Adaptil collars for behavioural management. Adaptil collars release a pheromone known as Dog Appeasing Pheromone (DAP) that is used to manage canine anxiety. Dr Adams observed that all of the dogs responded very positively to Ms Ryan.
Ms Ryan also tendered, without opposition, a letter from Ms Jacqueline Rudan who describes herself as a veterinary naturopath. She had not examined the Pomeranians. Her letter was a criticism of the RSPCA for selectively seizing Ms Ryan’s dogs because of fleas and dirty teeth when those conditions were very common. I place no weight on her letter.
The intervention of the RSPCA in a case in which the Pomeranian dogs were “adequately healthy”, their BCS in the ideal range, and were described by Dr Smart as adequately healthy, is surprising. It is also significant that rural veterinarian surgeons support the return of the animals. Some dogs were suffering from diarrhoea but no further serious gastrointestinal conditions were found. There is no evidence that the diarrhoea was attributable to, or any more prevalent or serious because of, the conditions in which the Pomeranian dogs were kept. Gastrointestinal issues have not affected the BCS of the Pomeranian dogs. If this were the only unnecessary harm apprehended I would have granted summary judgment for the return of the Pomeranians.
However, the wear on the teeth of a number of the Pomeranians and their poor dentition generally may be a more valid concern. It may be that the dentition of the Pomeranians is no worse than is generally the case for Pomeranians of an equivalent age in urban accommodation. On the other hand it may be that Pomeranians are not suited to the rural style runs in which they were kept. There is some evidence from which it could be inferred that the dirt floors have contributed to those conditions and that reasonable measures could be taken to reduce that harm. On that apprehended harm there are factual questions which can only be determined at trial.
A certain level of flea infestation and harm is a necessary incident of keeping many animals in a rural environment. However there is evidence from which it could be inferred that over the period in which Ms Ryan’s property was visited in late 2017, more could reasonably have been done to control the flea infestations. On that issue too a trial is necessary.
Conclusion
For the above reasons I dismiss the appeal.
On 5 February 2018 Ms Ryan brought an interlocutory application in this Court seeking the immediate return of the Pomeranians. The application was adjourned to be heard with the appeal. The appeal having been dismissed so too must that application.
Nonetheless on the face of the evidential material, and acknowledging that I have not had the benefit of seeing that evidence tested in the usual way, I observe that Ms Ryan appears to have a strong case for the return of the Pomeranians if she were to take the additional measures to which I have referred. I would therefore encourage the RSPCA and Ms Ryan to attempt to reach agreement on some practical minimum steps which would allow the return of the Pomeranians to her care.