Schischka v Royal New Zealand Society for the Prevention of Cruelty to Animals
[2025] NZHC 2763
•22 September 2025
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CIV-2024-470-200 [2025] NZHC 2763
UNDER the Animal Welfare Act 1999
BETWEEN CHERYLYNNE JOY SCHISCHKA
Appellant
ANDROYAL NEW ZEALAND SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS
Respondent
Hearing:12 May 2025 (Heard at Hamilton)
Appearances: Appellant in person (via VMR)
N H Brown for the Respondent
Judgment: 22 September 2025
JUDGMENT OF GAULT J
This judgment was delivered by me on 22 September 2025 at 4:00 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
……………………………………
Parties / Solicitors:
The Appellant
Mr N H Brown, BVA Ltd, Palmerston North
SCHISCHKA v ROYAL NEW ZEALAND SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS [2025] NZHC 2763 [22 September 2025]
[1] Ms Schischka appeals the reserved judgment of Judge J P Geoghegan in the District Court at Tauranga dated 19 September 2024,1 making an enforcement order sought by the Royal New Zealand Society for the Prevention of Cruelty to Animals (SPCA) under s 143 of the Animal Welfare Act 1999 (the Act). The enforcement order required Ms Schischka, among other things, to reduce the number of cats in her care to three and to provide specified care for them. The remainder were to be sold or rehomed, surrendered to the SPCA, or humanely euthanised.2
[2]Ms Schischka’s grounds of appeal are that:
(a)she was never served with a notice under s 130 of the Act;
(b)the Judge refused to consider the relevant evidence supplied by her – a USB stick containing information about the SPCA; and
(c)the evidence relied upon by the SPCA (in the affidavits of an inspector and a veterinarian) was untrue.
Background
[3] Ms Schischka loves cats. She had approximately 40 cats, together with some dogs, at her property in Papamoa.
[4] Following complaints from members of the public regarding concerns for the animals, inspectors from the SPCA attended the property on more than one occasion in 2023 and provided Ms Schischka with advice and education concerning caring for her cats.
[5] On 11 January 2024, inspectors together with animal control officers from Tauranga City Council and police attended the property to assist in the execution of a search warrant under the Dog Control Act 1996. The inspector sighted a number of outdoor crates (with tarpaulins over them) housing cats. The inspector was concerned
1 Schischka v The Royal New Zealand Society for Prevention of Cruelty to Animals
[2024] NZDC 22773.
2 The full terms of the enforcement order are attached as Annexure 1.
about over-crowding, dirty litter trays, dirty water or lack of water. Inside the dwelling there were further crates housing a cat and kittens.
[6] On 30 January 2024, the SPCA executed a search warrant at the property given the number of cats and the scale and severity of the over-crowding and dirty living conditions. The SPCA decided to seize the 39 cats and two German Shepherd puppies.
[7] On 9 February 2024, one of the kittens had to be euthanised due to unreasonable pain and distress. Ms Schischka had been contacted in relation to this kitten.
[8] Ms Schischka commenced proceedings seeking the return of her cats, and the SPCA commenced proceedings seeking an enforcement order. The SPCA applied to strike out Ms Schischka’s application.
District Court decision
[9] The two applications were heard together. By the time of the hearing, Ms Schischka had not filed any notice of opposition to the application for the enforcement order, nor clarified her own application.
[10]At the hearing, Ms Schischka sought to adduce a USB. The Judge said:3
At the hearing, Ms Schischka endeavoured to produce a USB stick which she stated contained information about “what the SPCA is really like”. I declined to permit Ms Schischka to produce the USB on the basis firstly, that she had had plenty of time to file evidence if she wished to do so and secondly, that the SPCA should not be taken by surprise by the filing of late evidence. From Ms Schischka’s broad description of the contents of the USB it would also seem that the contents were irrelevant. In any event, Ms Schischka made no submissions other than the broad assertion that her animals were loved and well-treated and she wished to have them returned.
[11] The Judge struck out Ms Schischka’s application as not disclosing either a cause of action nor the relief sought.
3 Schischka v The Royal New Zealand Society for Prevention of Cruelty to Animals, above n 1, at [13].
[12] Turning to the application for an enforcement order, the Judge referred to the affidavits of Ms Hall, an SPCA inspector, and Ms Perry, a registered veterinarian. The Judge said that even if he were to have regard to the affidavit filed by Ms Schischka in respect of her application, it would not constitute an adequate response in any way to the matters raised by Ms Hall and Ms Perry. The Judge said it amounted to no more than general comments stating she had looked after the cats’ needs, which was not borne out in the evidence. In any event, the Judge approached the application by the SPCA on the basis it was a formal proof hearing.
[13] The Judge noted the SPCA’s submissions that the enforcement order would permit the SPCA to dispose of the excess cats Ms Schischka possessed but only as a last resort. In the first instance, the SPCA would take steps to rehome the cats. Euthanasia could only occur if Ms Schischka could not find an appropriate place for the animals to go. She would have 14 days from service of the order in which to rehome, sell, surrender or euthanise any cats in excess of the three she would be permitted to own. The Judge said the High Court has affirmed that reducing animal numbers is a legitimate use of an enforcement order, citing Royal New Zealand Society for Prevention of Cruelty to Animals v Murray and Parker v Langley.4
[14] The Judge accepted the SPCA’s submission that in the absence of the enforcement order the SPCA’s only other remedy to avoid inevitable harm to the animals would be to bring a prosecution and seek forfeiture and disqualification upon conviction or disposal under s 150 of the Act. He said it would be preferable for a civil remedy to be used in the circumstances. Accordingly, the Judge was satisfied that the grounds were made out for the enforcement order sought.
Approach on appeal
[15] On a general appeal by way of rehearing, “the appellate court has the responsibility of considering the merits of the case afresh”.5 The appellate court “must be persuaded that the decision is wrong”,6 but “[t]he weight it gives to the reasoning
4 Royal New Zealand Society for Prevention of Cruelty to Animals v Murray [2023] NZHC 712, [2023] NZAR 187 [SPCA v Murray]; and Parker v Langley [2021] NZHC 3144.
5 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [31], citing Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
6 Austin, Nichols & Co Inc v Stichting Lodestar, above n 5, at [13].
of the court or courts below … is a matter for the appellate court’s assessment”.7 Further:8
[16] Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. …
Discussion
[16] Ms Schischka represented herself on the appeal and submitted she had not been properly heard in the District Court. Her written and oral submissions on appeal reinforced that she loves her cats, which the SPCA did not dispute. In some respects, her submissions continued to criticise the SPCA in relation to unrelated matters, but she also submitted that cat cages were widely used, and that she and her son always put their pets’ needs first. She also expressed concern that she had been told by counsel in December that the SPCA still had her cats pending appeal when in fact most had already been rehomed (which I accept was an unfortunate misunderstanding).
[17] Much of the material Ms Schischka relied on does not assist her appeal. Applications for enforcement orders under s 143 of the Act are civil proceedings and the Criminal Procedure Act 2011 does not apply. S v Vector Ltd concerns private prosecutions and has no relevance.9 A s 130 notice is not a prerequisite to an application for an enforcement order. Further, the evidence indicates that a s 130 notice was issued to Ms Schischka on 12 April 2023.
[18] Section 143 provides that an inspector may apply to the District Court for an enforcement order requiring any person to comply with the provisions of the Act, regulations or a code of ethical conduct. The primary obligation provisions of the Act are ss 10 and 11. Section 10 requires that the owner of an animal, and every person in
7 Kacem v Bashir, above n 5, at [31]. No deference is required beyond the customary caution appropriate when seeing the witnesses provides an advantage because credibility is important: see Austin, Nichols & Co Inc v Stichting Lodestar, above n 5, at [13]; and Green v Green [2016] NZCA 486, [2017] 2 NZLR 321 at [31]-[32].
8 Austin, Nichols & Co Inc v Stichting Lodestar, above n 5 (footnote omitted). See also Kacem v Bashir, above n 5, at [32].
9 S v Vector Ltd [2020] NZSC 97, [2021] 1 NZLR 1.
charge of an animal, ensure the physical health, and behavioural needs of the animal are met in a manner that is in accordance with both good practice and scientific knowledge. Section 11 requires the owner of an animal that is ill or injured, and every person in charge of such an animal, to ensure the animal receives treatment that alleviates any unreasonable or unnecessary pain or distress being suffered by the animal. A failure to comply with ss 10 and 11 is a strict liability offence.
[19] Section 144 provides that the District Court may make an enforcement order on an application under s 143 only if the District Court is satisfied that the person in respect of whom the order is sought has been acting in contravention of the provisions of the Act or of any regulations made under this Act or of any code of ethical conduct or of any conditions imposed by an animal ethics committee in giving its approval of a project, or is likely to do so.
[20] The Judge was entitled to decline to accept the USB at the hearing. Ms Schischka had failed to file and serve her opposition material in time before the hearing. Further, criticism of the SPCA in relation to unrelated matters was not directly relevant. It could only be relevant to the credibility or reliability of the SPCA witnesses, but Ms Schischka had not filed any opposition and did not seek to cross-examine the SPCA witnesses on their affidavits. Criticism of the SPCA’s Australian equivalent was even less relevant.
[21] In addition, since the SPCA’s application proceeded by way of formal proof, Ms Schischka could have applied to the District Court to set aside the judgment. In any event, she chose to appeal and even on appeal the USB was not provided.
[22] Ms Schischka submitted that all the accusations were lies, that there were only two sick cats and she took cats to the vet if needed. She referred to a dispute with a neighbour, implying false complaint. She said she used the best blankets, and the cages were open during the day whereas the SPCA arrived before that, but she also said the cats had freedom until she realised they had no road sense. She said her plan was to build a cattery at her next property. In reply she said she had a large house, it did not matter that compatible cats slept in cages, they were out for fresh air, they slept for 18 hours a day and were in cages only a couple of waking hours.
[23] In saying this at the appeal hearing, Ms Schischka did not appreciate the difference between submission and evidence. Even allowing her some latitude as a self-represented litigant, such unsworn statements should not be admitted as evidence on appeal. Such evidence could and should have been provided in the District Court. If Ms Schischka wanted to pursue fresh evidence on appeal after the Judge noted that she provided only general comments that she had looked after the cats’ needs, she should have sought leave to file an affidavit on appeal. She was on notice in that respect since at least 4 February 2025 when the respondent served its submissions.
[24] In any event, Ms Schischka’s further assertions on appeal were insufficient to overcome the evidence of Ms Hall and Ms Perry, which was accepted by the Judge. The Judge was entitled to accept their affidavit evidence. The veterinarian Ms Perry considered that the person caring for the cats was not meeting the minimum standards in the Code of Welfare for Companion Cats. I accept that Ms Schischka loves her cats, and that she believes she was caring for them, but the evidence indicates they were not well cared for. There was evidence of overcrowding, lack of hygiene and chronic health issues.
[25] Mr Brown, for the SPCA, acknowledged some uncertainty regarding the appropriateness of enforcement orders requiring disposal of animals but submitted that an order limiting the number of cats and permitting disposal as a last resort is legitimately connected to the SPCA’s concerns about the welfare of the animals. He referred to the cases cited in the District Court, which he submitted have affirmed that reducing animal numbers is a legitimate use of an enforcement order – albeit in those previous cases this Court recommended legislative attention.10
[26] In Parker v Langley, Mr Parker appealed the District Court’s decision refusing to vary a temporary enforcement order requiring him to reduce stock. Edwards J considered there must be a reasonable nexus between the terms of the enforcement order, and the nature and context of the breach of the Act, regulations or code.11 She concluded there was power to make a destocking requirement in an enforcement order but in that case the substitute order made in advance of non-compliance was
10 Parker v Langley, above n 4, at [56]; and SPCA v Murray, above n 4, at [92].
11 Parker v Langley, above n 4, at [97].
beyond the scope of the Court’s power.12 Such a temporary enforcement order differs from the enforcement order granted in this case following a finding of non-compliance.
[27] In SPCA v Murray, the District Court had declined to make a disposal order under s 163 of the Search and Surveillance Act 2012 (the SSA). Eaton J agreed that s 163 may not be used to effect disposal of animals by the SPCA in circumstances where it has made the decision not to prosecute, due to the operation of s 151 of the SSA, which requires return to the owner once a decision is made not to prosecute.13 He dismissed the SPCA’s appeal but considered alternatives including an enforcement order.14
[28] In relation to enforcement orders, Mr Brown acknowledged that Eaton J’s comments could be construed as unfavourable to the SPCA’s ability to seek an enforcement order that includes disposal of animals:
[86] While a destocking order is available to the [SPCA], non-compliance with that order is a pre-requisite to the exercise of a remedial power. For a person to fail to comply with such an order, the animals must be in their possession. That, of course, is not the situation in this case. The [SPCA] had possession of the animals. In that scenario the animals would have to be returned to Ms Murray, an enforcement order served, followed by non- compliance with the order.
[29]I note that Eaton J continued:
[87] I adopt the conclusion of Edwards J in Parker, in respect of the protections afforded by the SSA:15
I do not consider Parliament intended for the statutory provisions relating to seizure and disposal of animals to be avoided simply by [the Ministry for Primary Industries Manatū Ahu Matua] electing to follow the enforcement route.
[88] In my view, though available, enforcement orders operate clumsily in the present circumstances and are not a viable long term solution to what is a lacuna in the statutory regime that appears to have emerged as the [SPCA]’s approach to prosecution has evolved and due to incongruities between the SSA and the [Act]. It is understandable that they are being utilised in the interim to achieve a pragmatic solution.
12 Parker v Langley, above n 4, at [119].
13 SPCA v Murray, above n 4, at [78].
14 Mr Brown advised that an enforcement order was applied for and granted in that case.
15 Parker v Langley, above n 4, at [123].
[30] This case differs from Murray in that a s 130 order preceded a search warrant and seizure of the animals, which all preceded the application for an enforcement order. The order was not a temporary enforcement order and the return of so many animals to Ms Schischka’s property would be inherently incompatible with compliance with the Act.
[31] There is overlap between the threshold requirement for an enforcement order and the strict liability criminal offence for breach of s 10 of the Act. As Edwards J said in Parker, the enforcement regime is accordingly an alternative or additional pathway to criminal prosecution under the Act.16 As the Judge in this case noted, it is preferable for a civil remedy to be available rather than requiring a criminal prosecution, at least in a case such as this.
[32] In the circumstances of this case, I am satisfied that the enforcement order requiring Ms Schischka to reduce the number of cats within her care was within the scope of the Judge’s power under the Act. Unlike the predicament referred to in Murray, there was no need here for the SPCA to return the cats before applying for the enforcement order given what had already occurred. The enforcement order appropriately required compliance with the provisions of the Act and the Code of Welfare: Companion Cats. In providing options for the remainder of the cats to be sold or rehomed, surrendered to the SPCA or humanely euthanised, the order involved minimum interference with Ms Schischka’s property rights. The Judge did not err in granting the order.
Strike out
[33] As Mr Brown submitted, it is unclear whether Ms Schischka also seeks to appeal against the strike out of her proceeding. Even assuming she does, and through that proceeding also seeks return of her cats, any such appeal must also fail. Ms Schischka was given plenty of opportunity to amend her claim and the Judge did not err in striking it out.
16 Parker v Langley [2021] NZHC 3144 at [89].
Result
[34]The appeal is dismissed.
[35] If the SPCA seeks costs, a memorandum is to be filed and served within 15 working days, and any response is to be filed and served within a further 15 working days. I will then determine costs on the papers. Memoranda are not to exceed three pages.
Gault J
ANNEXURE 1
Full terms of the enforcement order
3
and that evidence of compliance must be provided to an SPCA kispector wlthin five buskiess days of compliance.
(c)By midnight on the 42nd day foIk›wing servlce of the order on the respondent, any felkie that remakis ki the respondent’s ownership, care, possession, or control must be dese¥e‹J and mlcrochlpped and evidence of thls is provided to an SPCA inspector wlthin five business days of compliance.
(d)Any felkie that remakis in the respondent’s ownership, care, possession, or control must recelve adequate quantities of food and nutrients to enable it to maintain goad heakh, meet its physiolagical demands and makitaki a bady condition of between of between 2.5 and 4 out of 5 as per the Cade of Welfares Companion Cats - Schedule II—Assessment of Body Condition of Cats.
(e)Any felkie that remains in the respondent’s ownership, care, possession, or control must have continuous access to wate that b paIatd›le and not harmful to its heakh.
(f)Any felkie that remains in the respondent’s ownership, care, possession, or control must not be kept in a wke dag crate, unless instructed to do so by a veterinarian.
(g)Any felkie that remains in the respondent’s ownership, care, possession, or control must receive an appropriate vaccInatI‹nt regime based on veterkiary advice. Evldence of thls b to be provided to kispectorswhen requested.
(h)Any felkie that remains in the respondent’s ownership, care, possession, or control must be regularly treated wlth appropriate,
new generation Rea and wofrn treatment (&ouec/o PLs or /VexGuord 5pecd'o) to prevent resistance or re-infection with Reas or worms.
(i)Any feline that remains in the respondent’s ownership, care, possession, or control must have its food and water bovd rinsed and dried daily, induding a weekly clean in hot soapy water, to prevent contamination that may pose a threat to the health and welfare of the cat.
(j)Any feline that remains in the respondent’s ownership, care, possession, or control must have its litter tray deaned, induding the removal of faeces and urine a minimum of once daily including having a weekly clean in hot soapy water, to prevent contamination that may pose a threat to the health and welfare of the cat.
(k)Any feline that remains in the respondent’s ownership, care, possession, or control that shows signs of ill heakh, including chronic pain, suffering and distress, or signs of deteriorating health, induding diarrhoea, upper respiratory tract infection or any other disease for longer than three days must be presented to a veterinarian at the earliest available opportunity to ensure rapid resolution of the problem.
(I)Any feline that remains in the respondent’s ownership, care, possession, or control must, if kept permanently indoors, have access to some enrichment in the form of toys, multi-level cat towers and scratching posts.
(m)If any of the three felines th at remain in the respondent’s ownership, care, possession, or control are replaced for any reason, the replacement feline must be in good heakh, vaccinated, de-sexed and microchipped. Evidence of this, including the microchip number, must
be provided to the SPCA whNn 2B days of the animals change of
a\v uersNp.
(n) The respondent gays all cosrs and expenses of rx›rn plying with tNs
order.
(a) The SPCA will, whhin reason, assist the respondent with the reha+YiIng or humane euthanasla of any exoess anbnab lf required.
0
3
1