Wilson v Bourke and Anor (Appeal) - [2021] ACAT 34

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

WILSON v BOURKE & ANOR (Appeal) [2021] ACAT 34

AA 32/2020 (XD 767/2020)
Catchwords: APPEAL – ownership of a dog – whether joint tenancy of separated wife and husband – or sole ownership of husband – on death of husband, claim of ownership by wife – disputed by daughter of husband – oral evidence by wife of joint trip to purchase the dog and joint contribution – evidence of sole ownership by husband from documents of registration and other evidence – onus of proof – nature of appeal

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 8, 15, 16, 17, 79, 82
Companion Animals Act 1998 (NSW) ss 70, 71, 72
Evidence Act 2011 ss 63, 140

Cases cited:Brown v Dunn (1894) 6 R 67
Giusida Pty Limited v Commissioner for ACT Revenue [2016] ACTSC 275
Mansour v Dangar [2017] ACAT 49
Pesec v Neo International Pty Ltd [2020] ACAT 99
Saeedi v Carnell [2015] ACTSC 84
Smith v Chen [2019] ACAT 58

List of

Texts/Papers cited: J W Carter et al, Helmore Commercial Law and Personal Property in NSW (10th ed, 1992)
Dennis Pearce, Administrative Appeals Tribunal (4th edition, 2015)
Duncan Sheehan, The Principles of Personal Property Law (Hart, 2011)

Tribunal: Acting Presidential Member R Orr QC

Date of Orders:  23 April 2021
Date of Reasons for Decision:         23 April 2021
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          AA 32/2020
(XD 767/2020)

BETWEEN:
MARIE WILSON
Appellant

AND:
NATASCHA BOURKE
First Respondent
BEN HOITINK
Second Respondent

APPEAL TRIBUNAL: Acting Presidential Member R Orr QC

DATE:23 April 2021

ORDER

The Tribunal orders that:

The appeal is dismissed.

………………………………..

Acting Presidential Member R Orr QC

REASONS FOR DECISION

These proceedings concern a civil dispute application for return of a dog called Pico. The claim is by Marie Wilson (Ms Wilson, original applicant, or appellant) against Natascha Hoitink Bourke (Ms Bourke or first respondent) and Bernard Hoitink (Mr Bernard Hoitink or second respondent) (jointly, respondents) who were the adult children of Ms Wilson’s former partner Bernardus (Ben) Hoitink (Mr Ben Hoitink), who died in April 2020. Mr Ben Hoitink and Ms Wilson were apparently married in 1994, separated on a final basis in about 1997, but continued to live in separate parts of a property in Canberra, ACT, until January 2020. It seems divorce proceedings were underway when Mr Ben Hoitink died. Pico was purchased in 2008, well after they had separated, but by whom is the key issue in these proceedings. Pico is currently in the possession of Ms Bourke in New South Wales.[1]
[1] Statement of Ms Bourke dated 2 September 2020; financial agreement dated 8 March 2010 attached to the response by Ms Bourke; transcript of proceedings (original tribunal) 11 September 2020 pages 22-23
There was a hearing of this matter on 11 September 2020 (original hearing), and in a decision on that day Senior Member Katavic of the tribunal (original tribunal) dismissed the application by Ms Wilson for the return of Pico to her. The reasons for doing so are set out from page 64 of the transcript of proceedings on 11 September 2020 (original decision), and are summarised below. Ms Wilson now appeals against that decision.

Summary of this appeal tribunal decision

In the original hearing, Ms Wilson gave oral evidence of an expedition by her and Mr Ben Hoitink to purchase Pico, and that she paid him in cash half the purchase price. There were no documents to support this arrangement. She generally helped care for and fed, and shared possession of, Pico.
But Mr Ben Hoitink was registered as sole owner of Pico on the NSW Companion Animal Register as evidenced by a Certificate of Identification issued in May 2008. There were indications he thought Pico was solely his. Ms Bourke has now registered her ownership of Pico in NSW, apparently as executor of Mr Ben Hoitink’s estate.
On this basis the original tribunal could not be satisfied that Ms Wilson had been a co-owner of Pico, such that she is now the surviving sole owner. It was said that Ms Wilson had not discharged the relevant onus of proof that she is now the sole owner of Pico.
Ms Wilson appeals that decision. In order to succeed in this appeal, Ms Wilson had to show there was an error of fact or law. An appeal tribunal will not lightly substitute its own findings of fact for those of the original tribunal. Given the competing evidence before, and the finding of, the original tribunal, this Appeal Tribunal does not find such an error, and therefore does not allow the appeal.

Original hearing

A civil dispute application was made by Ms Wilson on 22 July 2020 (application) and an application for interim orders on 27 July 2020 (interim application). These applications included a number of supporting statements and documents.
A response to the civil dispute was made by Mr Bernard Hoitink on 24 August 2020, who indicated that he did not want to be involved in the proceedings and was neutral. A response to the civil dispute was also provided by Ms Bourke dated 2 September 2020 (response), who disputed the claim, and attached a number of documents. There was a statement by Ms Bourke dated 2 September 2020 which set out her position and attached more documents (statement of Ms Bourke).
The application was heard on 11 September 2020 before Senior Member Katavic. Ms Wilson gave evidence, as did her daughter Ms Kaye Wilson. Ms Bourke also gave evidence. The application was dismissed with reasons on that day.[2]

Original decision

[2] The reasons are set out at the transcript of the proceedings (original tribunal) 11 September 2020 pages 64-67

In summary terms, the original decision found that both Ms Wilson and Mr Ben Hoitink cared for Pico and that possession was shared, at least for the most part. But the original tribunal could not be certain that Ms Wilson paid for half of the purchase price, or half of Pico’s care and maintenance; there was said to be no documentary evidence to support these propositions. The original tribunal was satisfied that Ms Wilson likely purchased food for Pico. It was said that unfortunately Mr Ben Hoitink had died and was not able to provide evidence. The original tribunal stated that while it seems that Ms Wilson and Mr Ben Hoitink may have genuinely believed that they were owners of Pico, jointly or separately, she could not rely on belief to substantiate the claim. Pausing here, as discussed below, the two competing propositions were that while Mr Ben Hoitink was alive, Ms Wilson and Mr Ben Hoitink owned Pico as joint tenants, or that Mr Ben Hoitink alone owned her.
The original tribunal gave some weight to the documentary evidence. Mr Ben Hoitink was registered as sole owner of Pico on the NSW Companion Animal Register. There was Certificate of Identification issued in about May 2008.
Ms Wilson did register Pico in the ACT on 21 January 2020, nominating herself as Pico’s sole owner, notwithstanding that Mr Ben Hoitink was still alive at that time. This registration was therefore inconsistent with the position she has taken in these proceedings, that she and Mr Ben Hoitink were joint owners. As the original tribunal noted, this registration nominated a microchip number which was incorrect. (As discussed below, evidence was provided in this Appeal Tribunal, which I accept, that this has now been corrected.)
Ms Bourke has now registered her ownership of Pico in NSW as executor of Mr Ben Hoitink’s estate.
On this basis the original tribunal held that she could not be satisfied that Ms Wilson was a co-owner such that she is now the surviving sole owner. It was said that Ms Wilson had not discharged the relevant onus of proof that she is now the sole owner of Pico.

Appeal

An amended application for appeal was made dated 28 October 2020 (appeal). This set out a number of appeal reasons. The appeal was heard on 22 December 2020. A corrected ACT certificate of registration, originally dated 21 January 2020 but with a new date of 10 September 2020, was provided and accepted as evidence in the appeal. This showed Ms Wilson as the registered owner of Pico in the ACT with the correct microchip number.
The appeal was dealt with as a review under section 82(b) of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act). Ms Wilson therefore needs to establish an error of fact or law in the original decision in order to succeed.[3]

Legal context

[3] ACAT Act section 79(3)

There are a number of matters which were apparently accepted in the original proceedings and this appeal, and which seem to be correct. A domestic animal can be owned as a good (sometimes also called a chattel or personal property). As such, a dog can have several co-owners. This can involve a joint tenancy, where each co-owner has the same rights and they are treated as a single owner; when one joint tenant dies, the other simply acquires his or her ‘share’. Or this can be a tenancy in common, in which each tenant in common has an undivided share, which share can survive the death of the co-owner and pass to another person. All things being equal, the law has a preference for a joint tenancy of goods. If there is co-ownership here, it is therefore likely a joint tenancy.[4] This case was apparently claim for legal ownership; no claim was made for an equitable interest.[5] Proceedings can be brought in the tribunal for return of goods, such as a dog, which a person owns.[6] The tribunal does not have jurisdiction to determine matters under the Family Law Act 1975 (Cth), or the Probate and Administration Act 1898 (NSW), both of which may have been relevant here.
[4] Smith v Chen [2019] ACAT 58 at [7]-[20]; Duncan Sheehan, The Principles of Personal Property Law (Hart Publishing, 2011), pages 4-7; J W Carter et al, Helmore Commercial Law and Personal Property in NSW (10^th ed, 1992) pages 58-62
[5] Further, no issue was raised in relation to the statutory adjustments in section 210 of the Civil Property Act 2006 (ACT) and section 26 of the Conveyancing Act 1919 (NSW), and these do not appear to be relevant in the circumstances here
[6] ACAT Act, section 15 (definition of “goods application”), section 16(d) and section 17. Traditionally such claims were made on the basis of the torts of conversion or trespass to goods
In the original hearing and in this appeal the key issue was whether Pico was owned by Ms Wilson and Mr Ben Hoitink as joint tenants, and therefore on his death full ownership passed to Ms Wilson, or whether Pico was wholly owned by Mr Ben Hoitink, and this ownership has passed on his death as part of his estate.

Was there evidence of co-ownership of Pico?

The appellant argued that it was clearly established that she had co-ownership of the dog, contrary to the finding of the original tribunal. In this regard she relied on her sworn evidence in relation to the sharing of the purchase price, sharing of the care, and sharing of possession, which was said to have been rejected by the original tribunal without proper basis.
It is clear that Ms Wilson told her side of the story to the original tribunal who had regard to this evidence. She gave sworn evidence that she searched for a suitable dog, identified and talked to the seller, negotiated a price, went with Mr Ben Hoitink to Sydney to collect Pico from the seller, and that she gave Ben half the purchase price in cash and he paid the seller.[7]
[7] Transcript of proceedings (original tribunal) 11 September 2020 pages 10-11
Her evidence was that both she and Mr Ben Hoitink fed Pico, and that Pico slept in either her part of the house or his, possibly more at his, until “things got bad and he would lock her away from me … about 12 months ago.”[8] She provided a number of statements from people who knew her which stated that she and Mr Ben Hoitink shared Pico. She also stated that she and Mr Ben Hoitink had had a similar arrangement in relation to a previous dog.[9]
[8]Transcript of proceedings (original tribunal) 11 September 2020 page 13
[9] Transcript of proceedings (original tribunal) 11 September 2020 pages 21-22
I also note, following on from the quote in paragraph [21], that it seems to have been accepted by Ms Wilson that her relationship with Mr Ben Hoitink deteriorated significantly in 2019-20, that he kept Pico from her, and that he left the property they shared in January 2020, taking Pico with him to NSW.[10]
[10] Application; transcript of proceedings (original tribunal) 11 September 2020 pages 13, 20-21, 26-28
Ms Wilson said that Mr Hoitink took Pico to the vet and paid with his bankcard and she paid him half the cost in cash.[11]
[11] Transcript of proceedings (original tribunal) 11 September 2020 page 14
But as the original tribunal noted, Mr Ben Hoitink could not tell his story, since he had died. In order to assess his position, it was therefore necessary for the original tribunal to have regard to documentary evidence, and the evidence of Ms Bourke, which I discuss below. No evidence was provided by the person who sold Pico. No documentary evidence was provided of the arrangement between Ms Wilson and Mr Ben Hoitink concerning the provision of money by Ms Wilson, or the purchase and ownership of Pico.

Was the original hearing unfair?

The appellant argued that the original hearing and an aspect of the appeal were unfair for a number of reasons. First, in this appeal, by direction dated 16 November 2020, Ms Bourke was ordered to provide a response to the list of errors provided by the appellant, any proposed further evidence, and submissions, to the appellant and the tribunal, but she did not do so. Ms Bourke said she was in hospital at the time of the order, she had no new evidence, and in effect she simply maintained the position she had taken at the original hearing.[12] At the appeal hearing she did in fact maintain the position she had taken at the original hearing, based on the evidence she had put to the original hearing. In these circumstances I do not think there was any unfairness or disadvantage to Ms Wilson in this regard.
[12] Transcript of proceedings on 22 December 2020 pages 9-10
Second, it was said that the original tribunal erred in allowing the second respondent to withdraw from the proceedings without the consent of the applicant. As noted above at paragraph [8], the second respondent indicated that he did not want to be involved in the proceedings and was neutral. He was not compelled to participate, give evidence or make submissions, but took the potential increased risk of a finding against him when he did not participate. It is true that at the original hearing there was some discussion of events in January 2020, and some dispute about these, which the second respondent may have been able to clarify, but these were not relevant to the original tribunal’s decision, nor are they relevant to this appeal tribunal’s decision. I do not think that this course involved any error by the original tribunal or that this resulted in any unfairness to Ms Wilson.
Most significantly, Ms Wilson argued that her evidence should have been accepted because it was not challenged in cross-examination by the respondent, and referred to the decision in Brown v Dunn (1894) 6 R 67 where it was said at page 70 to be “absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct …[their] attention to the fact by some questions put in cross-examination …”.
A number of comments can be made about this argument. First, the original tribunal did not find that the appellant lied; rather that a range of evidence needed to be taken into account in determining whether she had established that she had been a co-owner. As noted the terms of the original decision were that the tribunal could not be certain, and that Ms Wilson had not discharged the relevant onus of proof, as to co-ownership. Second, the respondent generally took the position that she did not know the details of the purchase, but that other factors led her to the position that Mr Ben Hoitink had been the sole owner of Pico. In the statement of Ms Bourke she said that: “In 2008 my father and Marie [Ms Wilson] were living completely separately and to my knowledge did not purchase a pet jointly.” Rather, “Pico was registered on the National Data base in 2008 with Bernardus Hoitink as the only registered owner”. She said her father “was adamant … he was her sole owner and he would not give her up for anything”. She said that her father had asked her to look after Pico if anything happened to him. [13]
[13] Statement of Ms Bourke at [1]-[3]
Ms Bourke did put to Ms Wilson that her father had registered Pico in only his name.[14] She also raised this with Ms Wilson’s daughter.[15]
[14] Transcript of proceedings (original tribunal) 11 September 2020 pages 29-30
[15] Transcript of proceedings (original tribunal) 11 September 2020 pages 37-38
Ms Bourke also gave oral evidence. Her evidence did not go into the purchase, and she admitted in cross-examination that she did not know anything about the purchase. The lawyer for Ms Wilson in the original hearing accepted that the respondent had no knowledge of the circumstances in which Pico was purchased.[16] But Ms Bourke said Pico was always with her father; he said to her the dog was like his child; and he asked her to look after Pico if anything happened to him. She said that she always understood, and all the documentation said, that Pico had always been in her father’s name.[17] She said the relationship between her father and Ms Wilson was “very volatile” and it was a very bitter separation.[18] She admitted Ms Wilson had a strong attachment to Pico.[19]
[16]    Transcript of proceedings (original tribunal) 11 September 2020 page 56
[17]    Transcript of proceedings (original tribunal) 11 September 2020 page 43
[18]    Transcript of proceedings (original tribunal) 11 September 2020 pages 44-45
[19]    Transcript of proceedings (original tribunal) 11 September 2020 page 49
In these circumstances, I do not think that there was fundamental unfairness to Ms Wilson in the conduct of the original hearing. Ms Bourke had maintained a consistent position that she was principally relying on what her father told her and the documentation; in her cross-examination of Ms Wilson she asked about the documentation. On the basis of the documentation and what her father had told her, she did not think there had been joint ownership, but admitted she did not know anything about the events surrounding the actual purchase.
Ms Bourke is not a lawyer. None-the-less she has consistently put her position in the documentation and conduct of the original hearing. Ms Bourke’s position would have been readily apparent to Ms Wilson and her lawyer. There was no unfairness to Ms Wilson in the failure to cross-examine her about the purchase.

Should the evidence of Ms Wilson have been accepted?

The major argument of the appellant was that the original tribunal should have accepted that there was joint ownership, based on her evidence of the purchase and the joint care of Pico, rather than relying on the documentary evidence.
This documentary evidence was principally a Certificate of Identification reflecting the NSW Companion Animal Register from 2008, said to be issued in accordance with section 72 of the NSW Companion Animals Act 1998 (Companion Animals Act). It shows “Bernard Hoitink” as the owner of Pico.
The Companion Animals Act provided in 2008, and now, as follows. It noted that registration is for life, presumably of the dog, and does not have to be renewed (note under section 70). Two or more persons can be registered as joint registered owners of a companion animal.[20] A person who in or in connection with an application for registration makes a statement or gives information that the person knows is false or misleading in a material particular is guilty of an offence.[21] In my view, the fact that Mr Ben Hoitink would have been committing an offence in registering Pico in his name alone, if in fact Pico was jointly owned, supports the respondent’s case.
[20] Companion Animals Act section 71
[21] Companion Animals Act section 71(4)

Section 72 of the Companion Animals Act then states in part:
(3) The certificate of registration is evidence that the animal is registered and that the registration information shown on the certificate is that entered on the Register. Information entered on the Register is presumed (in the absence of evidence to the contrary) to be correct.
Note – In this way, the certificate of registration can be used as evidence of (for example) the name of the registered owner of an animal and the address at which it is ordinarily kept.
Therefore, registration itself gives rise to a presumption of ownership, in this case by Mr Ben Hoitink alone, though this presumption can be rebutted by evidence to the contrary.[22]
[22] See also Saeedi v Carnell [2015] ACTSC 84 in relation to registration, and in that case non-registration, under the ACT legislation
There is also a Confirmation of Registration from the Australasian Animal Registry dated 15 April 2009 which shows “Bernard Hoitink” as owner. The respondent also provided a desexing certificate dated 6 August 2008 issued by a vet in the ACT showing “Mr Hoitink” alone as owner.
The original tribunal held that “having regard to all the evidence and, in particular the registration documents from NSW from 2008, I cannot be satisfied that the applicant was the co-owner such that she is now the surviving sole owner.”[23] The original tribunal noted that the applicant bore an onus of proof, which had not been discharged. In summary, this appears to have been on the basis that the documentary evidence gave rise to a significant doubt about co-ownership.
[23] Transcript of proceedings (original tribunal) 11 September 2020 page 67
In order to succeed in this appeal, Ms Wilson has to show there is an error of fact or law. An appeal tribunal will not lightly substitute its own findings of fact for those of the original tribunal.[24]
[24]See Mansour v Dangar [2017] ACAT 49 at [22]; Giusida Pty Limited v Commissioner for ACT Revenue [2016] ACTSC 275 at [35]-[38]
There is no provision in the ACAT Act in relation to onus of proof. However, in relation to civil claims such as this case, the applicant as the moving party generally bears the onus of proof to the civil standard, namely on the balance of probabilities. That is, the applicant needs to show that their version is more probable than not.[25] In my view, the original tribunal’s reliance on this principle was not an error.
[25] Pesec v Neo International Pty Ltd [2020] ACAT 99 at [31]; Evidence Act 2001 (ACT) section 140(1). In contrast in administrative review proceedings in the tribunal it is generally thought that concepts of onus of proof are inappropriate: see Dennis Pearce, Administrative Appeals Tribunal (4th edition, 2015) at [9.34]
The tribunal need not comply with the rules of evidence, rather the tribunal may inform itself in any way it considers appropriate in the circumstances.[26] These provisions are generally seen as being facultative, not restrictive, and their purpose is to free tribunals, at least to some degree, from constraints applicable to courts under the rules of evidence. The material relied on by the tribunal does however need to be relevant and logically probative and fairly presented.[27]
[26] ACAT Act section 8
[27] Dennis Pearce, Administrative Appeals Tribunal (4^th edition, 2015) at [9.1]-[9.5]
The original tribunal had regard to the evidence provided by both the parties. The evidence was generally relevant and logically probative. The evidence of Ms Wilson was principally of events she witnessed and took part in. The evidence of Ms Bourke was principally documentary, and to a lesser extent was of events she witnessed and took part in. As the original tribunal noted, a key difficulty was that Mr Ben Hoitink had died so it was not possible to hear evidence from him. A conclusion was reached in effect that the documentary evidence cast significant doubt that there had been joint ownership, so that it had not been shown on the balance of probabilities that Ms Wilson had been a co-owner. This was not a case where there was no evidence that Mr Ben Hoitink had been the sole owner; there was clearly some evidence to support this possibility.
Given that there was an onus on the appellant, that the Tribunal need not comply with the rules of evidence but rather could inform itself in any way it considered appropriate in the circumstances, and that there was relevant, logically probative material on both sides, in my view the finding by the original tribunal that the documentary evidence and other evidence of the respondent had enough weight to prevent a finding of co-ownership did not involve an error of fact or law.
I note that even if the rules of evidence had been applied, it is clear that each party presented available, relevant and generally admissible evidence. Oral evidence such as that provided by Ms Wilson can generally be provided under the rules of evidence. Documentary evidence such as that provided by Ms Bourke can also generally be provided, as can her evidence of statements by her father, who had died.[28] The original tribunal assessed that evidence and attached the weight that appeared appropriate to it. There is no rule of law or evidence that oral evidence, such as presented by Ms Wilson, should be given greater weight than the documentary evidence and oral evidence presented by Ms Bourke.
[28] Evidence Act 2011 (ACT), section 63
On this basis, there is no error by the original tribunal in the assessment which it made, and which was open to it. On this basis that appeal is dismissed.
I note a number of other additional factors. First, there was no written agreement between the parties as to the basis of the purchase, notwithstanding that they had been separated “on a final basis” for some time when they purchased Pico.[29] This makes resolution of these issues very difficult.
[29] Financial Agreement attached to the response of Ms Bourke
Second, Pico has been in the possession of Mr Ben Hoitink, and then his children, in NSW, since at least January 2020. Ms Wilson said she did not challenge the taking in January 2020 because Mr Ben Hoitink was very sick and Pico would provide some comfort to him. This was a commendable position for her to have taken. But now, Ms Bourke has apparently dealt with Pico in accordance with the law of NSW and in the administration of her father’s estate, and registered ownership of Pico in her name. These circumstances may not prevent this tribunal from making the order sought, but respect for the legal processes which have been undertaken in NSW does suggest it should do so cautiously. Further, even if successful in these proceedings, there may be some difficulties in enforcing any order of this tribunal in NSW given these processes.
Thirdly, the original tribunal understood that the tribunal decision would present a distressing outcome for Ms Wilson. I do the same. There can be no doubt that Ms Wilson cared for and had a very strong attachment to Pico. Ms Bourke acknowledged this (see paragraph [30] above). At the appeal hearing there was some discussion of the possibility of mediation, in particular in light of the fact that there appear to be a number of other disputes between the parties. In my view, consideration should be given by the parties to such a mediation.
………………………………..
Acting Presidential Member R Orr SC

Date(s) of hearing	22 December 2020
Solicitors for the Appellant:	Mr J Colquhoun, Nelson & Hill Lawyers
First Respondent:	In person