Animals

ANIMALS
[Supplemented to January, 1999]

Scope Note
This title includes cases dealing with common law and statutory liability (both
civil and
criminal) for injuries and trespass by animals, with the exception of certain st
atutory
provisions as to trespass which are dealt with in the title PRIMARY INDUSTRY. It
also
includes cases on various enactments as to birds, animals and game.
Articles, Notes, Etc.
Convention Paper and Discussion. 1959. Law Reform in England: 33 ALJ 126.
Articles. 1928. Presumptions in the Case of Damage by Unattended Horses: 2 ALJ 5
4, 82.
1932. The Liabilities of Owners of Dogs: 6 ALJ 7.
1938. The Farmer's Horse: 1 Land L Serv 97, 115.
1939. Cruelty to Animals: 1 Land L Serv 158, 169, 177, 185, 193. The Farmer's Bu
ll: 1 Land
L Serv 130.
1939-1941. Bees and the Law: 2 Res Jud 22.
1940. Profit a Prendre and Animals: 1 Land L Serv 230.
1941. The Camel: 1 Land L Serv 330.
1944. Domestic Animals on the Highway: 17 ALJ 346.
1945. Damages for Injuries by Animals: 18 ALJ 338.
1946. Damage Done by Animals: 2 Land L Serv 321.
1951. Straying Animals: 3 Land L Serv 348. Straying Horse: 3 Land L Serv 315.
1959. Marauding Cats: 32 ALJ 372.
1960. Animals on the Highway: 3 UQLJ 222.
1978. Common Law Liability for Straying Stock An Inter-State Divergence: 52 AL
J 485.
1979. Civil Liability for Animals in New South Wales: 17 Law Soc J 39.
1982. The Use of DNA and the Law in Australia: 56 ALJ 6.
1986. Wandering Animals The Belated Burial of Searle v Wallbank: 60 Law Instit
J 690.
Article and Correspondence. 1972. Animals and Highways: Misinterpreted Cases and
Ill-Conceived proposals: 46 ALJ 123, 306.
Notes. 1951. The Dog Act: 25 Law Inst J 159.
1954. Trespass by Animals: 4 Land L Serv 144.
1962. Dog Running Across Urban Street Liability of Owner for Collision with Ve
hicle: 36
ALJ 200. Right to Shoot a Dog: 56 QJP 52.
1968. Cruelty to Animals: 62 QJP 102. Second Thoughts on Liability for Animals:
41 ALJ
528.
1970. Animal Harm (Escape on to Highway): 44 ALJ 95. Liability for Animals: 44 A
LJ 402.
1973. Strict Liability Zoo Attendant Bitten by Chimpanzee Volenti: (1973) 47
ALJ
265.
1979. Animals, Highways and Law Reform: 14 UWAL Rev 184.
Correspondence. 1979. Common Law Liability for Straying Stock: 53 ALJ 49, 230.
Report. 1970. Report of the NSW Law Reform Commission on Civil Liability for Ani
mals,
LRC 8. Dated 29 June 1970.
Articles. 1987. The Family Pet: A Limitation on the Freedom of Testamentary Disp
osition?:
9 U Tas LR 51.
1988. A Question of Criminal Guilt Mens Rea Under Animal Protection Law: 15 UQ
LJ
75.
1989. Dogs Civil Liability for Damage and Injuries: 133 SJ 1614.
1991. Duty and the Beast: The Movement in Reform of Animal Welfare Law: 16 UQLJ
238.
1992. The Legal Status of Animals Under Animal Welfare Law: 9 EPLJ 20.
1994. Canines and the Law: 1 DL (No 7) 7. Commerce and Cruelty: 19 Alt LJ 186. P
rotection
of Endangered Species How Will Australia Cope?: 11 EPLJ 4.
1995. Biodiversity and the Law: A Review of the Commonwealth Endangered Species
Protection Act of 1992: 3 GLR 39. Round Up The Dog and Cat Management Act 1994
: 1
LGLJ 19.
1996. Domestic (Feral and Nuisance) Animals Act 1994 [(Vic)]: Efficient Regulati
on or
Dog's Breakfast?: 2 LGLJ 16. The Nature of Recent Environmental Law Reforms in N
SW: 13
EPLJ 71. Threatened Species Conservation Act 1995 (NSW): 1 LGLJ 179.
Reports and Other Publications. 1988. Liability for Injuries Caused by Dogs. Law
Reform
Commission (NSW), Community Law Reform Programme, Report No 10.
1989. Sheep Owners Protection Act. Law Reform Commission (Vic), Occupational
Regulation Report No 3.
[1] Pt I. Animals Ferae Naturae and Mansuetae Naturae.
1. Distinction between animals ferae naturae and domitae naturae .] Quaere, w
hether lost
or straying domestic cattle are capable in law of becoming animals ferae naturae
, and what
circumstances would bring about that change in their classification. Per curiam
The
statement in Halsbury's Laws of England, 3rd ed, vol 1, p 655, note (d), that "D
omestic
animals which have reverted to a wild state are ferae naturae; see Falkland Isla
nds Co v The
Queen (1864) 2 Moo NS 266; 15 ER 902" is not supported by that case. Distinction
between
animals domitae naturae and animals ferae naturae and property rights therein, d
iscussed.
REEVE V WARDLE; EX PARTE REEVE [1960] Qd R 143; 54 QJPR 88 (Q Sup Ct FC).
2. Straying domestic cow Rights of person finding .] A domestic cow belongi
ng to W
strayed on to the adjoining property of A through a broken boundary fence. Under
an
arrangement with A, R ran down this cow with other cattle harbouring in dense sc
rub on A's
property and claimed possession of it. Held, that the cow being merely a strayin
g domestic
cow, the general rule that the property in cattle did not cease because of its e
scape applied, so
that even if it were incapable of positive identification by W, nevertheless R w
ould have
acquired no title merely by capturing it. Semble, in the face of the finding of
the tribunal of
first instance that the cow (identified as surely as if it bore his registered b
rand by the person
who bred and reared it and who knew its general whereabouts and had not abandone
d it) had
not become a "wild" or "scrubber" beast, it was impossible to hold that it was i
n fact an
animal ferae naturae.
REEVE V WARDLE; EX PARTE REEVE [1960] Qd R 143; 54 QJPR 88 (Q Sup Ct FC).
3. Bees .] Held, that bees of the species apis mellifera are not animals fera
e naturae.
STORMER V INGRAM (1978) 21 SASR 93 (SA Sup Ct, Legoe J).
4. Camel Assumption in Western Australia that not dangerous .] Under the co
ndition
of affairs which has existed in Western Australia for many years, camels are to
be regarded
as belonging to the class of domestic animals.
NADA SHAH V SLEEMAN (1917) 19 WALR 119 (WA Sup Ct FC).
5. Dingo .] Held, that a dingo, canis familiaris dingo a sub species of the s
pecies dog,
canis familiaris, is an animal ferae naturae, and the person having its care and
control is
absolutely liable for injury done by it to another person.
FISCHER V STUART (1979) 37 FLR 46; 25 ALR 336 (NT Sup Ct, Forster CJ).
6. Goats .] Held, that goats are, as a matter of law, animals domitae naturae
.
R V DRINKWATER (1981) 27 SASR 396 (SA Sup Ct FC).
7. Kangaroos .] Held, that the kangaroo is an animal ferae naturae.
CAMPBELL V ARNOLD (1982) 56 FLR 382; 13 NTR 7 (NT Sup Ct, Forster CJ).
8. Kangaroos .] Held, that kangaroos as a class of animals are harmless by na
ture and do
not fall within the class of normally dangerous animals, with the result that pr
oof of scienter
is necessary to render the person having control of a kangaroo liable for injuri
es inflicted by
it.
LAKE V TAGGART (1978) 1 SR (WA) 89 (WA Dist Ct).
[2-13] Pt II. Liability of Owners and Keepers in Respect of Injuries by Animals
Liability for negligence generally see TORTS.
[2-5] Divn 1. The Scienter Action
[2] A. Parties and Liability Generally
9. General principles Animals mansuetae naturae but of vicious disposition .]
Per
Higinbotham CJ Animals may be mansuetae naturae, but if they be by nature, tho
ugh not
by class, of a savage disposition and accustomed to injure or bite mankind, and
that fact is
known to the owner, the owner incurs special liability, and he cannot take such
animals (even
though they be horses or dogs) on to the public highway knowing their nature, ex
cept at his
own risk and without accepting all the liability which may result from taking th
em there.
SCOTT V EDINGTON (1888) 14 VLR 41; 9 ALT 118 (Vic Sup Ct FC).
10. Injury caused by confined animal Vicious propensity known by owner Anim
al in
custody of person other than owner Indemnity by person liable for negligence .
] A bull,
which had recently gored his owner and made an unprovoked attack on the owner's
son, was
taken by the owner for sale at a live stock auction sale in 1973. The son inform
ed the
auctioneer's employee of the bull's dangerous propensity. The plaintiff, in pass
ing through the
pen in which the bull was confined at the auction sale, was injured by the bull.
Held: (1) The
bull had a vicious propensity for purposes of the common law rule imposing absol
ute
liability on the owner of an animal known by him to be dangerous for injury caus
ed by the
animal. (2) When an owner knows that his animal is dangerous he keeps it at his
peril and his
liability at common law is not restricted to damage done by the animal when it h
as escaped
from confinement. (3) Liability of the owner of such an animal continues while t
he animal is
in the custody of an independent contractor, and accordingly the owner was liabl
e to the
plaintiff. (4) Mere contributory negligence was not a defence at common law to a
n action
founded on the strict liability incurred at common law by the owner of an animal
who kept it
with knowledge of its dangerous tendencies. (5) The provision for reduction of d
amages
where a person suffers damage partly by his own fault, under s 10 of the Law Ref
orm
(Miscellaneous Provisions) Act 1965 (NSW), had no application in respect of redu
ction of an
owner's liability at common law for damages for injury done by an animal known b
y him to
be dangerous. (6) As the auctioneer was liable to the plaintiff for negligence i
n the care of
the bull and the owner was not responsible for the injury for purposes of s 5(2)
of the Law
Reform (Miscellaneous Provisions) Act 1946, the owner should receive a full inde
mnity for
the damages from the auctioneer.
HIGGINS V WILLIAM INGLIS & SON PTY LTD [1978] 1 NSWLR 649 (NSW Sup Ct CA).
[Discussed in note, 3 UNSWLJ 1.]
11. Strict liability Trespass by dog Injunction .] The defendants' dogs h
ad, to the
knowledge of the defendants, frequently attacked the plaintiff's dog for almost
three years:
the plaintiff's dog had required veterinary treatment for injuries sustained by
it; such
wrongdoing was likely to continue. Held: (1) As its owners are not liable for th
e trespasses of
a dog, an injunction would not be granted to restrain the defendants from permit
ting their
dogs to enter upon the plaintiff's property. (2) As the defendants had knowledge
of their dogs'
propensity to attack the plaintiff's dog, they were strictly liable for damage d
one by their dogs
to the plaintiff's dog. (3) An injunction could issue restraining the defendants
from permitting
their dogs to attack the plaintiff's dog and to cause it injury.
JONES V LINNETT [1984] 1 Qd R 570 (Q Sup Ct, Ryan J).
12. Strict liability Canine propensity Tendency to get in way of traffic .]
Per
Moffitt AJ The mere tendency of an animal, such as a dog, to get in the way of
traffic,
cannot be said to be due to its canine propensity such that absolute liability i
n respect of it
may attach at common law to its keeper.
MARTIGNONI V HARRIS [1971] 2 NSWLR 102 (NSW Sup Ct CA).
13. Escape Dog not allowed to run free of restraint .] The defendant kept a
large
German shepherd dog at her home, where it had caused injury to a child. The defe
ndant was
warned that having done so, it was likely to cause injury again. Several weeks l
ater the
plaintiff, a next door neighbour, went to see the defendant. The plaintiff and t
he dog were
known to one another. While the plaintiff and the defendant were talking about t
he dog in a
swimming pool enclosure, the plaintiff stroked the dog. The dog thereupon bit he
r, causing
her serious injury. The plaintiff had been aware of the attack on the child, but
not of all the
details thereof nor of the warning that had been given to the defendant. The pla
intiff sued the
defendant for damages. Held: (1) Escape, in the sense of allowing the dog to run
free of all
restraint, is not a condition of liability in an action brought under the scient
er rule. (2) The
plaintiff had not been fully aware of the risk she was taking in being in the pr
oximity of the
dog, and accordingly a defence of volenti non fit injuria had not been establish
ed. (3) The
defendant was liable to the plaintiff both under the principle of absolute liabi
lity where
scienter is established, and for negligence. Per Cox J Semble, contributory ne
gligence is
no defence to a scienter claim, notwithstanding the provisions for apportionment
of
responsibility in Pt III of the Wrongs Act 1936 (SA).
DORMAN V HORSCROFT (1980) 24 SASR 154 (SA Sup Ct, Cox J).
14. Who liable Keeper of animals .] In an action for damages for the worryi
ng of
plaintiff's sheep by dogs kept on the defendant's premises, it was proved that t
he defendant
was not the owner of the dogs, but that one belonged to his brother, and had bee
n lent to him
as a watchdog, and the other was the property of one of the defendant's men. Hel
d, that the
defendant was liable.
JACKSON V CROFT (1879) 2 SCR (NS) (NSW) 295 (NSW Sup Ct FC).
15. Who liable Joint tortfeasors Action against owners of dogs as co-defend
ants .]
The owners of dogs which stray on to a property and kill the sheep of the occupi
er are not
liable as joint tortfeasors merely on account of ownership of their respective d
ogs. Held,
therefore, that the sheep owner cannot join the owners of the dogs as defendants
in one
action for damages for the loss of the sheep.
MCDERMOTT V HUDSON (1920) 16 Tas LR 21 (Tas Sup Ct, Nicholls CJ).
16. Who liable Owner of vicious horse Depastured on land accessible to the
public .]
The owner of a vicious horse, knowing it to be so, is liable for injuries done
to persons on
a piece of open land accessible to the public on which the owner has licence to
turn his horse
loose.
SOUTHALL V JONES (1879) 5 VLR (L) 402; 1 ALT 98 (Vic Sup Ct FC).
17. Who may recover Parent of child Loss of services by parent .] Where a
daughter of the plaintiff was injured by a bite from the defendant's dog, Held,
that the
plaintiff could maintain an action for loss of services occasioned by such injur
y.
DALLY V BELLINGER (1888) 10 ALT 159 (Vic Sup Ct FC).
194. Liability in absence of scienter Foreseeability of risk Propensity of
animal .]
Held: (1) For a plaintiff to succeed in an action for negligence in failing to h
ave a dog
restrained it is necessary to prove, in the absence of scienter, a special prope
nsity of, or
special circumstances relating to, the dog such that a defendant ought reasonabl
y to have
foreseen a risk of injury to the plaintiff. It is not sufficient for a plaintiff
to prove a failure by
a defendant to guard against the possibility that a tame animal of mild disposit
ion might do
some dangerous act contrary to its ordinary nature. (2) It was open to a trial j
udge to infer
that there was a propensity in a dog to cause injury or damage known to the defe
ndant,
although the plaintiff did not have to prove that the defendant should foresee e
xactly how the
risk of injury or damage would work itself out; it sufficed if the plaintiff pro
ved that the
injury fell within the class of injuries which were reasonably foreseeable by th
e defendant.
GALEA V GILLINGHAM [1987] 2 Qd R 365 (Q Sup Ct FC).
[3-4] B. Proof of Scienter
[3] (i) What Constitutes
18. Imputation of knowledge to owner Horse attacking boy Horse attacking an
other
horse Injury to boy rider Sufficiency of evidence of vicious disposition .]
The
plaintiff, a boy aged 11 years, was riding a horse in a paddock containing other
horses, when
a colt, aged 16 months, charged towards the plaintiff on horseback with his mout
h open and
his ears back. The plaintiff put his hand up in front of his face. The colt grab
bed his hand
with his teeth biting off several fingers and pulling the plaintiff off his hors
e. The plaintiff
sued the owner of the colt for damages, basing his case on the vicious dispositi
on of the colt
and knowledge of the owner thereof at the time when the injuries were received.
Evidence
was given of three prior incidents in which it was claimed that the colt had beh
aved in a
hostile manner showing a vicious disposition. It was shown that the owner's son,
a boy aged
10 years, had known of one of these incidents at the time it occurred. There was
no direct
evidence that the owner's son had told him of this occurrence or that the owner
knew of the
other occurrences or of any vicious disposition in the colt. The trial judge fou
nd for the
plaintiff, holding that both the vicious disposition of the colt and the owner's
knowledge of it
had been established. The Court of Appeal of the Supreme Court of New South Wale
s
upheld an appeal by the owner, holding that the knowledge of his son of the inci
dent
involving the horse was not, as a matter of law, to be imputed to him, as being
his father, and
that knowledge of the vicious disposition of an animal by a person not the owner
is not to be
imputed to the owner unless the owner has delegated custody and control of the a
nimal to
that person, whereas in the instant case there had been no such delegation. On f
urther appeal,
Held: (1) (by Barwick CJ, Gibbs, Stephen and Mason JJ, (Murphy J dissenting)) Th
e appeal
should be dismissed. (2) (by Barwick CJ, Gibbs and Mason JJ (Stephen and Murphy
JJ
dissenting)) The evidence did not warrant a conclusion that the colt was of vici
ous propensity
in the sense that it had a tendency to attack mankind. Per Barwick CJ There wa
s evidence
that there was a distinction between what the horse might do when a human being
was on
foot, and what it might do when a human being was on horseback. (3) (by Barwick
CJ,
Gibbs, Stephen and Mason JJ (Murphy J dissenting)) It could not be inferred from
the
evidence that the owner's son had told him of the incident with the horse which
he had
witnessed, or that the owner was aware of any vicious disposition of the horse (
assuming that
it had existed), and the judge had been in error in finding in the plaintiff's f
avour.
[[1974] 2 NSWLR 19 affd.]
EATHER V JONES (1975) 49 ALJR 254; 6 ALR 220 (HC).
19. Imputation of knowledge to owner Knowledge of person having custody and c
ontrol
.] Per Herring CJ and Fullagar J Upon a claim for damages, by a person who h
as been
bitten by a dog, against the dog owner, the issue of scienter is logically disti
nct from the issue
of ferocity in fact, but evidence of a very slight and general character is rega
rded as sufficient
to go to a jury upon both issues. If the owner of a dog has delegated full custo
dy and control
of the animal to a third party, it is a conclusion of law that the custodian's k
nowledge of the
dog's mischievous disposition is the owner's knowledge. Where there is no such d
elegation,
but the relation of the owner of the dog to the third party is such, by reason,
for example, that
the third party has general control of the premises on which the dog is kept or
of the business
conducted thereon, that it is probable that the third party would communicate hi
s knowledge
to the dog owner, a jury should be directed that it is for them to say whether t
hey will infer
knowledge of the dog owner from knowledge of the third party. In neither class o
f case is it
necessary that the person having direct knowledge should be the servant of the d
og owner.
CRUTTENDON V BRENOCK [1949] VLR 366; [1949] ALR 1040 (Vic Sup Ct FC).
[Discussed in note, 24 ALJ 125.]
20. Imputation of knowledge to owner Knowledge of owner's drover .] The
defendant's servants were driving a mob of cattle along the highway, when one of
the mob
rushed at and gored the plaintiff. It appeared that the cattle were sold as "wil
d or bush cattle".
One of the servants of the defendant, who tarred these animals in the yards and
delivered
them to the drovers, stated that they were "not more than usually fierce", and t
hat "the
majority of them would rush mankind". The drovers stated that the cattle "would
rush anyone
if they had a chance". One of the drovers, whilst driving them on the road, told
a policeman
to warn passers by, as they had a wild bullock in their charge, and that "it and
the others
would rush people if they came too close". Held, that this constituted knowledge
on the part
of the defendant of the mischievous propensities of the cattle, and that she was
liable for the
injuries caused to the plaintiff.
SCOTT V EDINGTON (1888) 14 VLR 41; 9 ALT 118, 173 (Vic Sup Ct FC).
21. Slight evidence .] It was proved that a dog which had bitten the plaintif
f had bitten
once or twice by mistake in course of play and had bitten a child when it was yo
ung, also that
on one occasion when a neighbour known to the dog had jumped over the fence into
the
owner's premises to retrieve a ball, the dog had snarled and shown its teeth. Th
ese matters
were known to the owners of the dog. Held, that extremely slight evidence of mis
chievous
disposition is sufficient to warrant the question to go to a jury, and either of
the incidents
deposed to in evidence was sufficient to establish a mischievous disposition.
NEWSAM V LADD (1972) 22 FLR 16; [1972-73] ALR 1372 (ACT Sup Ct, Connor J).
195. Liabilities of owners and keepers in respect of injuries by animals Stri
ct liability .]

TOLMIE V QUEENSLAND (1989) 10 Qld Lawyer Reps 166 (Q Dist Ct).
[4] (ii) Necessity for Proof
22. Bees .] Held, that the doctrine of scienter does not apply to bees.
STORMER V INGRAM (1978) 21 SASR 93 (SA Sup Ct, Legoe J).
23. Injury by kangaroo .] Held, that kangaroos as a class of animals are harm
less by
nature and do not fall within the class of normally dangerous animals, with the
result that
proof of scienter is necessary to render the person having control of a kangaroo
liable for
injuries inflicted by it.
LAKE V TAGGART (1978) 1 SR (WA) 89 (WA Dist Ct).
[5] C. Defences
24. Contributory negligence At common law Under statutory provision for
apportionment of damages .] A bull, which had recently gored his owner and mad
e an
unprovoked attack on the owner's son, was taken by the owner for sale at a live
stock auction
sale in 1973. The son informed the auctioneer's employee of the bull's dangerous
propensity.
The plaintiff, in passing through the pen in which the bull was confined at the
auction sale,
was injured by the bull. Held: (1) Mere contributory negligence was not a defenc
e at
common law to an action founded on the strict liability incurred at common law b
y the
owner of an animal who kept it with knowledge of its dangerous tendencies. (2) T
he
provision for reduction of damages where a person suffers damage partly by his o
wn fault,
under s 10 of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW), had no
application in respect of reduction of an owner's liability at common law for da
mages for
injury done by an animal known by him to be dangerous.
HIGGINS V WILLIAM INGLIS & SON PTY LTD [1978] 1 NSWLR 649 (NSW Sup Ct CA).
[Discussed in note, 3 UNSWLJ 1.]
25. Contributory negligence.] Per Cox J Semble, contributory negligence is
no defence
to a scienter claim, notwithstanding the provisions for apportionment of respons
ibility in Pt
III of the Wrongs Act 1936 (SA).
26. Volenti non fit injuria Incomplete knowledge of risk .] The defendant k
ept a large
German shepherd dog at her home, where it had caused injury to a child. The defe
ndant was
warned that having done so, it was likely to cause injury again. Several weeks l
ater the
plaintiff, a next door neighbour, went to see the defendant. The plaintiff and t
he dog were
known to one another. While the plaintiff and the defendant were talking about t
he dog in a
swimming pool enclosure, the plaintiff stroked the dog. The dog thereupon bit he
r, causing
her serious injury. The plaintiff had been aware of the attack on the child, but
not of all the
details thereof nor of the warning that had been given to the defendant. The pla
intiff sued the
defendant for damages. Held, that the plaintiff had not been fully aware of the
risk she was
taking in being in the proximity of the dog, and accordingly a defence of volent
i non fit
injuria had not been established.
27. Plaintiff's knowledge of danger .] The plaintiff who was in the habit o
f going to
the defendant's house to deliver telegrams went there, knowing that the defend
ant's dogs
were dangerous. Held, that this was insufficient proof of negligence on the plai
ntiff's part to
prevent him from recovering damages, in that the defendant had induced him to go
there.
CARBURY V MEASURES (1904) 4 SR (NSW) 569; 21 WN 169 (NSW Sup Ct FC).
28. Conduct of plaintiff Notice to beware of animal .] F, a mounted constab
le, went to
a sale of M's stock on M's land. It was proved that F had seen previously a noti
ce "Beware of
the Bull". The bull was offered for sale and M declared in F's hearing that it w
as quiet. It was
sold and turned out into a paddock on the fence of which F was sitting. F overhe
ard remarks
as to the animal's vice by people near him, and while crossing the paddock was i
njured by the
bull. The jury returned a verdict with damages in favour of F. The Full Court he
ld that F had
wilfully incurred an unnecessary risk and brought on himself the injuries inflic
ted, and
directed a nonsuit to be entered. Held, that there was evidence to go to the jur
y in support of
plaintiff's case, and that nonsuit was wrong, and that the finding of the jury w
as not so far
against the weight of evidence as to justify sending the case to a new trial. No
nsuit set aside.
Verdict entered for plaintiff.
[(1872) 8 VR(L) 185; 3 AJR 78 revd.]
FORBES V M'DONALD (1874) 7 ALT 62; 5 AJR 85 (PC).
29. Effect of scienter upon an otherwise good defence .] A defendant owned a
vicious
horse, and knew of its vice. The plaintiff and defendant owned adjoining lands,
and the
defendant had fenced his half, but the plaintiff had omitted to fence. The defen
dant's horse
trespassed on the plaintiff's land and kicked one of his horses. Held, that the
defendant was
liable.
LEYDEN V CORAM (1877) 3 VLR (L) 94 (Vic Sup Ct FC).
30. Plaintiff a trespasser Dog protecting defendant's property .] The plain
tiff, who was
a trespasser on the defendant's land, was bitten by the defendant's dog. Held, t
hat he was not
entitled to recover compensation for the injuries thus received. The statutory l
iability cast on
owners of dogs by s 26 of the Dog Act 1958 (Vic) should be read subject to certa
in
qualifications, and such qualifications exclude liability to trespassers where t
he
circumstances are such that no liability would attach at common law. The common
law right
in a man to guard and protect his own property by any lawful means so long as he
does not
thereby interfere with the legal rights of others should be held to stand unaffe
cted by the
general language of s 26.
TRETHOWAN V CAPRON [1961] VR 460 (Vic Sup Ct, Adam J).
31. Plaintiff a trespasser.] The plaintiff, who was a trespasser on the defen
dant's land, was
bitten by the defendant's dog. Held, that he was not entitled to recover damages
for the
injuries thus received. Section 19 of the Dog and Goat Act 1898 (NSW) imposes no
further
liability upon the owner of a dog than exists at common law except that in an ac
tion against
the owner of a dog to recover damages for injuries received from the bite of a d
og it renders
it unnecessary for the plaintiff to allege and prove, as he must have done befor
e the statute,
that the dog was of a mischievous disposition and that the defendant was aware o
f it.
WILKINS V MANNING (1897) 13 WN (NSW) 220 (NSW Sup Ct FC).
[6] Divn 2. The Rule in Searle v Wallbank
Negligence generally in control and management of animals on highways see
HIGHWAYS; TORTS.
32. Animals straying on highway Duty of care of owner or occupier of land
Exceptions to rule .] A motor car being driven on a country road at night coll
ided with
several sheep which were on the road. As a result it struck another car travelli
ng on the road,
the occupants of which were injured. The occupants claimed damages for negligenc
e from
the occupiers of the adjoining lands from which the sheep had strayed. Held: (1)
(by Barwick
CJ, Gibbs, Mason and Aickin JJ (Murphy J expressing no opinion)) In Searle v Wal
lbank
[1947] AC 341, the House of Lords had correctly decided that an owner of land ab
utting a
highway is under no prima facie legal obligation to users of the highway to keep
and
maintain hedges, fences and gates along the highway so as to prevent his animals
from
straying on to it and that he is under no duty of care to users of the highway t
o take
reasonable care to prevent any of his animals not known to be dangerous from str
aying on to
the highway. (2) (by Barwick CJ, Gibbs, Mason and Aickin JJ (Murphy J dissenting
)) The
rule became part of the law of South Australia on settlement. (3) (by Barwick CJ
, Gibbs,
Mason and Aickin JJ (Murphy J expressing no opinion)) If the rule in Searle v Wa
llbank is
subject to special circumstances they are limited to knowledge by the owner of a
vicious or
mischievous propensity in the animal which strays on to the highway and causes i
njury. (4)
(by Gibbs, Mason, Stephen and Aickin JJ (Barwick CJ and Murphy J expressing no o
pinion))
The landowner was not guilty of nuisance as the sheep on the highway had not int
erfered
with common rights of passage.
[Trigwell v Kerin (1978) 19 SASR 280 affd.]
STATE GOVERNMENT INSURANCE COMMISSION (SA) V TRIGWELL (1979) 142
CLR 617; 53 ALJR 656; 26 ALR 67 (HC). [Discussed in articles, 9 Syd LR 541; 6 U
Tas LR
294, and in notes, 54 ALJ 249; 14 UWALR 184.]
33. Animals straying on highway Duty of care of owner or occupier of land.]
Held: (1)
(by Hutley and Mahoney JJA) There being no decision of the High Court departing
from the
rule of law confirmed by the House of Lords in Searle v Wallbank [1947] AC 341,
all
Australian courts other than the High Court are bound to apply the rule so confi
rmed when
applicable. (2) (by Hutley and Samuels JJA) The immunity of a landowner, under t
he
common law of England, from having to fence in his cattle so as to prevent them
from
straying on to the highway, was not unsuitable to the conditions of the colony o
f New South
Wales in 1828, and accordingly it is, by virtue of s 24 of the Australian Courts
Act 1828
(Imp), part of the inherited law of New South Wales. (3) (by Hutley JA) The deci
sion in
Searle v Wallbank is not to be treated as applying to every highway, and having
regard in
particular to the effect of s 27C(7) of the Main Roads Act 1924 (NSW), it did no
t have the
effect of excluding a special duty in the present case to exercise reasonable ca
re to keep
animals off the motorway, and the defendant was under such a duty. (4) (by Samue
ls JA)
Having regard to criticism which has been made of the decision in Searle v Wallb
ank, supra,
and the fact that its effect has been abrogated in England, it should not be fol
lowed in New
South Wales.
KELLY V SWEENEY [1975] 2 NSWLR 720 (NSW Sup Ct CA). [Discussed in note, 50 ALJ
249.]
Per
curiam As to what is reasonable activity in discharge of the duty to prevent a
nimals
straying on to a highway, variations may be found in different localities. Searl
e v Wallbank
[1947] AC 341, distinguished.
REYN V SCOTT (1968) 2 DCR (NSW) 13 (NSW Dist Ct). [Discussed in note, 43 ALJ 171
.]
A motor
cyclist was riding along a country road when his motor cycle was damaged in a co
llision on
the roadway with a steer which had strayed from the defendant's property adjoini
ng the
roadway. The defendant knew that the steer had a propensity to break through the
fence on
the defendant's property and the magistrate found that he took insufficient prec
aution to see
that the fence was intact. Held: (1) There being no reason to be found in the st
atute law of
Victoria for concluding that the principles in Searle v Wallbank [1947] AC 341 a
re not part
of the law of Victoria, those principles can be applied in Victoria and they are
, by virtue of s
24 of the Australian Courts Act 1828 (Imp), part of the law of Victoria, that is
to say, an
owner of land adjoining a highway is under no duty to users of the highway (a) s
o to maintain
his fence along the highway as to prevent his animals from straying on to the hi
ghway, and
(b) to take reasonable care to prevent any of his animals, not known to be dange
rous, from
straying on to the highway.Per Young CJ I do not think it is open to this cour
t to decline
to apply an ancient rule of the common law unless it cannot be applied in Victor
ia. If the
principle of the decision is applicable here, whether or not it is suitable here
, it is our duty to
apply it.Per McInerney J The principles in Searle v Wallbank are not limited t
o cattle and
other stock, but they apply to all domestic animals, such as cats, dogs and poul
try. The
history of the pattern of land tenure and settlement and of the legislation rela
ting to fencing
and impounding of cattle in Victoria, discussed. (2) (by McInerney J) If, consis
tently with the
principles in Searle v Wallbank, there may in "special circumstances" exist liab
ility in
negligence for damage caused by cattle straying on to the highway, neither the m
ere fact of
the proximity of the owner's land to a highway nor a mere proclivity towards str
aying is such
a special circumstance, and there was not in the present case any evidence of an
y special
circumstances.
BRISBANE V CROSS [1978] VR 49 (Vic Sup Ct FC). [Discussed in article, 52 ALJ 485
;
and in note, 11 MULR 585.]
The
plaintiffs' motor car was being driven in the darkness of early evening along a
main country
road when, on turning a bend, the driver came upon a large number of cattle cros
sing the
road and collided with a black heifer. The cattle had strayed across the road fr
om an
adjoining paddock where the defendant, owner of paddock and cattle, depastured t
hem. The
paddock was quite inadequately fenced. The plaintiffs sued for damages for negli
gence.
Held: (1) The rule in Searle v Wallbank [1947] AC 341 (that is, that the owner o
f land
abutting a public road is under no duty as between himself and the users of the
road to take
reasonable care by fencing or otherwise to prevent any of his animals, not known
to be
dangerous, from straying on to the road), was part of the common law introduced
into South
Australia by the original settlers on 28 December 1836, and has not ceased to be
part of the
law of South Australia. (2) In the present case there were no special circumstan
ces bringing
the matter within any exception to the rule in Searle v Wallbank. In particular
the large
number of cattle on the road was not such a special circumstance.
[(1978) 18 SASR 564 revd.]
BAGSHAW V TAYLOR (1978) 18 SASR 564 (SA Sup Ct FC).
Held,
that Searle v Wallbank [1947] AC 341, should not be followed in Queensland.
STEVENS V NUDD [1978] Qd R 96 (Q Sup Ct FC).
Held: (1)
The ordinary duty imposed on a person who has animals in his care to take care t
hat his
animals are not so placed or used or allowed to roam or stray so as to be likely
to injure his
neighbour, extends to the duty of a landowner to maintain in repair his boundary
fence along
a highway so that his livestock will not stray on to the highway where they are
likely to cause
danger to passing traffic. (2) The Supreme Court of a State is not bound to foll
ow a decision
of the House of Lords where that decision is not relevant to local circumstances
differing
from those obtaining in England. Accordingly, in view of the common legislative
policy from
the early days in Western Australia to require the provision and maintenance of
fences along
road boundaries, differentiating conditions there from those in England, the cou
rt was not
bound to follow the decision of the House of Lords in Searle v Wallbank [1947] A
C 341, that
the owner of a field abutting on a highway was under no duty of care to a user o
f the highway
to prevent his animals from straying on to the highway.
THOMSON V NIX [1976] WAR 141 (WA Sup Ct FC).
The
ordinary rules of negligence are to be applied in respect of the liability of th
e owner of land
adjoining a highway whose animals stray on to the highway thereby causing damage
or loss
to a user of the highway. The question whether there has been a breach of the du
ty of care of
the landowner depends on all the circumstances of the case. Searle v Wallbank [1
947] AC
341, not followed.
JONES V MCINTYRE [1973] Tas SR 1 (Tas Sup Ct, Chambers J).
196. Extent to which rule abrogated by statute No general duty to fence Dut
y
dependent on circumstances Animals Act 1977 (NSW) .] Held: (1) Section 7 of
the
Animals Act 1977 (NSW) operates to abrogate Searle v Wallbank [1947] AC 341 to t
he
extent that failure to fence land adjoining a highway may, where there is a duty
of care upon
the landowner, constitute a breach of that duty. (2) The section does not establ
ish that there is
invariably a duty to fence land adjoining a highway to prevent animals from stra
ying.
BROWN V TOOHEY (1994) 35 NSWLR 417; [1994] Aust Torts Reports 61,802 (81-310)
(NSW Sup Ct CA).
197. Animals straying on highway Duty of care of owner or occupier of land
Exceptions to rule .] Held, that the defendant agricultural association, condu
cting an
annual agricultural exhibition, was not in the position of an occupier of land w
hose stock
strayed onto the highway. It concentrated, for a short period, large numbers of
livestock,
many of them large animals, in a relatively small and congested area, all of the
m well fed
and under-exercised. Where the animal in question was not of a vicious propensit
y but shared
with all or most of the large animals on the site during the exhibition a natura
l tendency to
overactivity and to be unsettled in unfamiliar surroundings, the phrase "vicious
or
mischievous propensity" was a way of expressing a notion that the animal was mor
e likely
than the general run of animals to get onto a highway as well as being more like
ly to cause
injury or damage once there.
GRAHAM (T/A MURRUMBO PASTORAL CO) V ROYAL NATIONAL
AGRICULTURAL & INDUSTRIAL ASSOCIATION (Q) [1989] 1 Qd R 624; [1989] Aust
Torts Reports 68,552 (80-239) (Q Sup Ct, Connolly J).
[7-13] Divn 3. Statutory Provisions
[7] A. New South Wales
40. Animals straying on highway .] Held: (1) The rule in Searle v Wallbank [1
947] AC
341 was abrogated by the Animals Act 1977, s 7, under which owners of animals ow
e a duty
of care to users of highways whose safety may be endangered by the presence of a
nimals on
roads. (2) Mere ownership of a household pet does not give rise to a foreseeable
risk of
injury.
CARROLL V REES (1985) 2 MVR 423 (NSW Sup Ct, Wood J).
41. Extension of common law liability Dog acting according to natural propens
ity
Running on to road in front of car .] The Dog Act 1966, s 20, provides: "The o
wner of a
dog shall be liable in damages for injury done to any person, property, or anima
l by his dog,
and it shall not be necessary for the party seeking such damages to show a previ
ous
mischievous propensity in the dog, or the owner's knowledge of that previous mis
chievous
propensity, or that the injury was attributable to neglect on the part of the ow
ner". M was
driving a motor car in a public street in an unexceptionable way when he came in
to collision
with a dog which ran suddenly from the footpath, the collision causing damage to
the car. M
sued H, the owner of the dog, on two counts, one based on s 20 of the Dog Act 19
66, the
other framed in negligence. The trial judge found that the defendant was not neg
ligent. He
found for the plaintiff on the other count. On appeal by the defendant, Held, th
at the owner of
the dog was liable to the plaintiff under s 20 for the damage done to the car; b
y Asprey JA,
on the ground that even if the section were limited to "something done by a dog
in its canine
capacity" of a mischievous nature, the behaviour of the dog was of that characte
r, and
judicial notice could be taken of the fact that dogs frequently race suddenly ac
ross roads in
the path of motor vehicles; by Moffitt JA and Taylor AJA, on the ground that s 2
0 of the Dog
Act 1966 does more than do away with the necessity for a plaintiff to prove scie
nter, it
enlarges the liability at common law for injury done by a dog at least to make t
he owner
liable for the act of a dog in running across a road into the path of and collid
ing with a
vehicle.
MARTIGNONI V HARRIS [1971] 2 NSWLR 102 (NSW Sup Ct CA).
42. Extension of common law liability Placing hand on fence .] The Dog and
Goat Act
1898, s 19, provides: "The owner of every dog shall be liable in damages for inj
uries done to
any person, property or animal by his dog and it shall not be necessary for the
party seeking
such damages to show a previous mischievous propensity in such a dog or the owne
r's
knowledge of such previous propensity or that the injury was attributable to neg
lect on the
part of such owner". In a locality to which that Act applied the appellant, whil
e looking over
the respondent's fence from a public footpath, placed his hand on the top of the
fence. The
respondent's dog from inside the respondent's premises jumped up and bit the app
ellant's
hand, inflicting serious injury. The dog was a large and powerful one which the
judge who
tried the action described as very savage and there was some evidence, which the
trial judge
accepted, that the respondent had knowledge of its mischievous propensities. Per
Gavan
Duffy CJ, Dixon, Evatt and McTiernan JJ Whatever restriction upon the generali
ty of the
section ought to be implied it does not exclude liability to a person who does n
o more than
thoughtlessly place part of his body within the close where the dog roams. Per S
tarke J
Persons passing along a public street are entitled to protection from dogs known
to be vicious
and the keeper of such a dog must secure it at his peril.
SIMPSON V BANNERMAN (1932) 47 CLR 378; 6 ALJ 189; 33 SR (NSW) 13; 50 WN 25;
38 ALR 374 (HC). [Discussed in note, 5 ALJ 424.]
43. Defences Proceedings under statute Contributory negligence .] Althoug
h the
effect of s 20 of the Dog Act 1966 is to relieve a plaintiff from establishing n
egligence on the
part of the owner of a dog, it is open to the owner of a dog sued for damages fo
r injury to a
person done by his dog to raise contributory negligence as a defence. In the cas
e of an infant
plaintiff the contributory negligence can be that of the plaintiff himself or of
a person in
whose care and control he is.
HENSLER V HAUXWELL (1970) 2 DCR (NSW) 256 (NSW Dist Ct).
44. Defences Proceedings under statute Plaintiff a trespasser .] The plai
ntiff, who
was a trespasser on the defendant's land, was bitten by the defendant's dog. Hel
d, that he was
not entitled to recover damages for the injuries thus received. Section 19 of th
e Dog and Goat
Act 1898 imposes no further liability upon the owner of a dog than exists at com
mon law
except that in an action against the owner of a dog to recover damages for injur
ies received
from the bite of a dog it renders it unnecessary for the plaintiff to allege and
prove, as he
must have done before the statute, that the dog was of a mischievous disposition
and that the
defendant was aware of it.
WILKINS V MANNING (1897) 13 WN (NSW) 220 (NSW Sup Ct FC).
45. Defences.] In an action under s 9 of the Dogs Act 1875 it was proved by t
he plaintiff
that two dogs, which had entered the plaintiff's land and killed his sheep, had
been seen tied
up on the defendant's land, and that they followed the defendant and his wife. T
he defendant
proved that the dogs had been lent by one E to B for hunting near the defendant'
s land; that
after the breakup of the hunting party the dogs were left with B, who remained t
o fulfil a
contract with the defendant to scrub his land. Verdict for the plaintiff. Held,
that the verdict
was right and scienter need not be proved. It is immaterial whether a dog is kep
t for the
defendant's own use or for that of another.
STRACHAN V M'LEOD (1884) 5 LR (NSW) 191 (NSW Sup Ct FC).
46. Defences Whether statutory remedy excludes common law remedy .] Section
9 of
the Dog Act Amendment Act 1875, which renders the owner of a dog liable for inju
ries
committed by it notwithstanding that he had no knowledge of a previous mischievo
us
propensity, although it alters the common law, does not create a new liability o
r cause of
action within the meaning of the rule that where a statute creates a liability n
ot existing at
common law, and gives also a particular remedy for enforcing it, that remedy mus
t be
exclusively adopted.
EX PARTE FINNERAN (1897) 18 LR (NSW) 353; 14 WN 104 (NSW Sup Ct FC).
47. Liability dependent on "wounding" .] The Dog Act 1966, s 20(1)(a), provid
es that the
owner of a dog shall be liable to damages in respect of bodily injury to a perso
n caused by
the dog "wounding" that person. Held, that, for the purposes of s 20(1)(a), "wou
nding" means
"to do harm, hurt or injury".
HARDEN V RIDGES [1983] 2 NSWLR 586 (NSW Dist Ct).
48. Liability of person by whom "ordinarily kept" .] Section 20 of the Dog Ac
t 1966
makes the "owner" of a dog liable in damages for injury done by his dog. Section
4(2)
provides: "A reference in this Act to the owner of a dog shall be construed as a
reference to
the person by whom the dog is ordinarily kept and where a dog is ordinarily kept
on any land
or on any premises, it shall, in the absence of evidence to the contrary, be dee
med to be
ordinarily kept by the person who is the occupier of that land or those premises
". A stray dog
came to the house of Mr and Mrs C, who fed it from time to time, but did not pro
vide it with
a bed or kennel. There was no evidence that they did anything to hunt it away. A
fter some
three or four weeks the dog bit P, who sued Mr and Mrs. C for damages in the Dis
trict Court.
The trial judge held that the dog was "ordinarily kept" by the defendants within
s 4(2) of the
Dog Act 1966 and found a verdict for the plaintiff. On appeal, Held: (1) When us
ed in
relation to the occupier of land or premises, the phrase "ordinarily kept" can i
nclude the
meaning of the act of so treating the dog with some degree of continuity that th
e animal
becomes attached to that land or those premises for the time being. Feeding a do
g is a
method of exercising some measure of control over a dog and of attaching it to l
and or
premises and refraining from hunting a dog away from land or excluding it from t
he interior
of the house are relevant to the question whether it is "kept" within s 4(2). (2
) Whether a dog
is kept is a question of fact, and there was evidence upon which the judge could
find as he
did.
PORTER V COOK [1971] 1 NSWLR 318 (NSW Sup Ct CA).
49. "Injury done ... by his dog" No physical contact with dog .] The Dog Ac
t 1966, s
20, provides that the owner of a dog shall be liable in damages "for injury done
to any
person, property, or animal by his dog" and it shall not be necessary to show an
y previous
mischievous propensity in the dog or knowledge thereof or any neglect of the own
er. D,
having been instructed by his employer, together with his workmate, X, to instal
l an awning
at the home of the defendants, was walking down a side path to the back of the h
ouse when a
dog belonging to the defendants rushed towards him barking. D took a step back,
fell and
hurt his hand. The dog ran on down the path towards X, who was still near the fr
ont of the
house, without having come into any physical contact with D. Held, that s 20 of
the Dog Act
1966 is not limited in its operation to injury caused by direct physical contact
between the
dog and the person, property or animal concerned. The phrase "injury done" impor
ts the idea
of an act causing injury. The defendants were accordingly liable to D for damage
s for the
injury he had suffered.
TWENTIETH CENTURY BLINDS PTY LTD V HOWES [1974] 1 NSWLR 244 (NSW Sup
Ct CA).
50. Dog attacking person who has right of way of any private yard Policeman s
erving
summons .] Section 10 of the Police Offences Act 1901 provided: "Whosoever kee
ps any
dog ... which attacks and endangers any person who has the right of way ... of a
ny private
yard" shall be liable to a penalty. A policeman called at the house where the de
fendant
resided in order to serve him with a summons. He rang at the front door but fail
ed to attract
attention and then went by a side gate to the yard at the rear of the house wher
e a dog, of
which the defendant was the owner and keeper, attacked and bit him. Held, that t
he constable
did not have "the right of way" of a private yard within the meaning of s 10 of
the Police
Offences Act.
SOMMER V ELLIS (1949) 66 WN (NSW) 196 (NSW Sup Ct, Herron J).
51. Power of justices to award damages .] Section 8 of the Dog Registration A
ct 1835
provided that the owner or keeper of a dog which attacks persons or property in
a street is to
be fined "not less than 1 ... over and above the amount of damage sustained". Hel
d, that this
section gives no power to justices to award damages. The meaning of it is that t
he penalty is
to be independent of any proceeding for damages that may exist. Where justices a
warded
damages together with a fine the conviction was Held to be bad. The court, howev
er,
amended the conviction by striking out the adjudication of damages.
EX PARTE HARTMANN (1875) 14 SCR (NSW) 205 (NSW Sup Ct FC).
52. Summary remedy Award of compensation Measure of damages .] The
respondent was convicted of an offence under s 13 of the Dog and Goat Act 1898 a
s being
the owner of a dog which had made an attack upon the applicant, whereby her limb
s were
endangered. The evidence showed that the applicant had been seriously bitten on
the hands.
The magistrate before whom the case was heard imposed a fine, and in exercise of
the
powers conferred by s 554(3) of the Crimes Act 1900 directed the respondent to p
ay 50 by
way of compensation to the applicant for the injury she had received. Held, that
all the facts
necessary to give the magistrate jurisdiction to award compensation under s 554(
3) of the
Crimes Act 1900 had been established. Held, further, that in awarding compensati
on for
physical injury, it was not necessary that monetary loss should be proved.
WILSON V JOHNSON (1932) 32 SR (NSW) 326; 49 WN 133 (NSW Sup Ct FC).
53. Where amount claimed does not exceed 10 .] In an action to recover damages
for
injuries done by a dog where the amount claimed does not exceed 10, the plaintiff
is not
bound by s 8 of the Dog Act Amendment Act 1875 to proceed before justices in a s
ummary
way, but may sue in any court.
EX PARTE FINNERAN (1897) 18 LR (NSW) 353; 14 WN 104 (NSW Sup Ct FC).
198. Liability of owners and keepers in respect of injuries by animals Statut
ory provisions
Intention of provisions Abrogation of common law .] Held: (1) Section 7 of
the
Animals Act 1977 (NSW) operates to abrogate Searle v Wallbank [1947] AC 341 to t
he
extent that failure to fence land adjoining a highway may, where there is a duty
of care upon
the landowner, constitute a breach of that duty. (2) The section does not establ
ish that there is
invariably a duty to fence land adjoining a highway to prevent animals from stra
ying.
BROWN V TOOHEY (1994) 35 NSWLR 417; [1994] Aust Torts Reports 61,802 (81-310)
(NSW Sup Ct CA).
[8] B. Victoria
54. Extension of common law liability Defences Plaintiff a trespasser Com
mon
law right to guard property .] The statutory liability cast on owners of dogs
by s 26 of the
Dog Act 1958 should be read subject to certain qualifications, and such qualific
ations
exclude liability to trespassers where the circumstances are such that no liabil
ity would
attach at common law. The common law right in a man to guard and protect his own
property
by any lawful means so long as he does not thereby interfere with the legal righ
ts of others
should be held to stand unaffected by the general language of s 26.
TRETHOWAN V CAPRON [1961] VR 460 (Vic Sup Ct, Adam J).
55. Extension of common law liability Admissibility of evidence .] In proce
edings
under the Dog Act 1884 to recover compensation for actual damage sustained by be
ing
attacked by a dog, evidence, tendered by the defendant, is inadmissible to show
that the dog
was of a quiet disposition, or that he was ignorant of the mischievous propensit
y of the
animal.
R V HARE; EX PARTE SCHNEIDER (1888) 14 VLR 89; 9 ALT 190 (Vic Sup Ct FC).
56. Extension of common law liability Action in Supreme Court .] In an acti
on in the
Supreme Court to recover damages in respect of injuries inflicted by a dog, it i
s still
necessary to allege and prove scienter. The Dog Act 1884, s 20, applies only to
proceedings
before justices for a penalty, or to recover compensation for the actual damage
done.
LANE V CASEY (1886) 12 VLR 380; 8 ALT 26 (Vic Sup Ct FC).
57. Failure to keep Alsatian dog muzzled or on leash when not on premises of ow
ner
"Premises" Unfenced land owned by defendant and adjoining street .] An Alsat
ian dog,
owned by the defendant, bit a person whilst it was on a strip of land approximat
ely 12 feet in
width outside the defendant's front fence. This strip of land was in fact owned
by the
defendant, but he had erected his front fence back 12 feet from the actual bound
ary of his
land in anticipation of that strip being used for roadmaking purposes. The strip
was open to
the public and was formed and gravelled like the footpath. The defendant was cha
rged under
s 3(2) of the Dog Act 1936 (Dog Act 1958, s 9(2)), which provided that the owner
of an
Alsatian dog "which is not on the premises of the owner" and which is not suffic
iently
muzzled or under the effective control of some person by means of a leash shall
be liable to a
penalty. Held, that the dog was "on the premises of the owner" at the time and t
he defendant
was not liable under the section.
MCDONALD V WESTON [1959] VR 462; [1959] ALR 995 (Vic Sup Ct, Adam J).
58. Who liable Owner of dog Where dog in possession of bailee .] Where a
dog
attacks a person its owner is liable under s 20 of the Dog Act 1928 for the actu
al damage
occasioned, notwithstanding that at the time when the damage is inflicted the do
g is not in
his possession but in that of a bailee.
GRIGG V MURNANE [1934] VLR 295; [1934] ALR 350 (Vic Sup Ct, Mann J).
59. Extent of power to award damages .] Under s 16 of the Dog Act 1864, justi
ces in
Petty Sessions have jurisdiction to award damages not exceeding 20 for injuries t
o sheep
done by dogs.
EX PARTE HILLIARD; RE AKEHURST (1876) 2 VLR(L) 2 (Vic Sup Ct FC).
60. Extent of power to award damages Where sheep worried by dog .] The jus
tices
have no jurisdiction under s 15 of the Dog Act 1864 to assess damages in respect
of sheep
being worried by a dog.
HAZELHURST V KERR (1869) 6 WW & A'B(L) 244 (Vic Sup Ct FC).
61. Excessive damages When court will interfere to limit .] Under s 20 of t
he Dog Act
1890 the complainant is entitled to recover the actual damages caused by the att
ack of the
dog, but not damages in the nature of solatium. The court will interfere to limi
t excessive
damages only when they are beyond what any reasonable man would give.
MCKINNON V DWYER [1906] VLR 28; 27 ALT 111; 11 ALR 449 (Vic Sup Ct, Madden
CJ).
62. Penalty or compensation Practice .] Proceedings under the Dog Act 1884
to
recover a penalty must be taken by an information; proceedings to recover compen
sation for
actual damage by complaint.
R V HARE; EX PARTE SCHNEIDER (1888) 14 VLR 89; 9 ALT 190 (Vic Sup Ct FC).
63. Prosecution of owner .] An information under s 20 of the Dog Act 1890 mus
t be laid
by a person duly authorized by the local municipal council. The person injured c
annot,
without such authority, lay the information.
LOFT V WADE [NO 2] (1898) 24 VLR 216; 20 ALT 35; 4 ALR 226; 4 ALR (CN) 54 (Vic
Sup Ct, Holroyd J).
64. Rider of horse attacked by dog Injuries to rider .] Where a dog rushes
at a horse,
and by reason of such attack the person riding such horse is injured, such perso
n may recover
damages under s 20 of the Dog Act 1890 for the injuries sustained by him.
CJ).
65. Hirer of horse attacked by dog Injuries to horse .] Where a horse, whil
st being
ridden, is injured by a dog, the rider, although not the owner but only the hire
r of the horse,
may, under the Dog Act 1890, recover damages for the injuries caused to the hors
e by such
attack.
CJ).
66. "Permitting" dog to worry animal .] Where the only evidence against the o
wner of a
dog is that, knowing the dog to be in the habit of worrying fowls, he let it off
the chain and
shortly afterwards, unknown to him, it worried a turkey, he cannot be properly c
onvicted of
"permitting" a dog to worry an animal under s 17(9) of the Police Offences Act 1
915.
TENNANT V HARRIS [1916] VLR 557; (1916) 38 ALT 36; 22 ALR 300 (Vic Sup Ct,
Cussen J).
67. "Permitting" dog to worry animal Necessity for presence of defendant .]
Section
14 of the Dog Act 1864, making it an offence to permit a dog to worry sheep, con
templates
the presence of a defendant inciting dogs to worry sheep.
R V TAYLOR (1870) 1 VR(L) 5; 1 AJR 24 (Vic Sup Ct FC).
68. "Permitting" dog to worry animal Necessity for presence of defendant .]
It is
necessary that the "permitting" under s 16(8) of the Police Offences Statute 186
5 should be
wilful and the owner of the dog is not liable for the offence if he is not prese
nt at the time of
the attack.
R V MUNRO; EX PARTE STEPHEN (1874) 5 AJR 16 (Vic Sup Ct FC).
69. "Permitting" dog to worry animal Whether turkey an animal .] A turkey
is an
"animal" within the meaning of s 17(9) of the Police Offences Act 1915 making it
an offence
to permit a dog to worry an animal.
TENNANT V HARRIS [1916] VLR 557; (1916) 38 ALT 36; 22 ALR 300 (Vic Sup Ct,
Cussen J).
[9] C. South Australia
70. Extension of common law liability Proof of scienter Injury to person in
street
Jurisdiction to award damages .] The Registration of Dogs Act 1924 confers jur
isdiction
on the Supreme Court to award damages, in an action brought against the owners o
f a dog by
a person attacked and injured by the dog in a street, without proof of scienter
and
notwithstanding that the owners had not been convicted by a court of summary jur
isdiction
of an offence against s 24 of that Act in respect of the attack.
MCCABE V PICKFORD (1982) 29 SASR 362 (SA Sup Ct FC).
71. Extension of common law liability Passenger on public highway .] In an
action
under s 24 of the Registration of Dogs Act 1924 against the owner of a dog for i
njury done to
a person attacked by the dog in a street, no evidence of scienter is necessary t
o entitle the
plaintiff to recover.
GRIMWOOD V CAMPBELL [1955] SASR 313 (SA Sup Ct FC).
72. Extension of common law liability Passenger on public highway .] In an
action
under the Dog Act 1867 against the owner of dogs for injuries done by them to a
person
lawfully passing along a public highway, no evidence of scienter is necessary to
entitle the
plaintiff to recover.
WALLIS V DAWKINS (1881) 15 SALR 132 (SA Sup Ct FC).
73. Dog biting child visitor to premises where dog kept .] A woman and her in
fant son
were staying at the premises of her mother and father. While the child was playi
ng in the
backyard of the premises, his mother and his grandmother being nearby, a dog bel
onging to
the grandparents bit and injured the child. The child, by his father as next fri
end, took
proceedings against the grandparents for damages. The grandparents claimed contr
ibution or
indemnity from the child's mother, as a third party, alleging that her want of c
are was wholly
or partly the cause of any injury suffered by the child. At first instance the c
ourt dismissed
the third party proceedings. On appeal, Held, that s 52(1) of the Dog Control Ac
t 1979,
providing that "the person liable for the control of a dog shall be liable in da
mages for any
injury caused by the dog", was not restricted in its application to injuries cau
sed outside the
premises where the dog was normally kept.
POSTHUMA V CAMPBELL (1984) 37 SASR 321 (SA Sup Ct FC).
74. "Injury" Motor cyclist colliding with dog Damage to motor cycle .] A
motor
cyclist collided with a dog who had escaped by forcing its way through a fence.
The motor
cyclist sued the owner of the dog for damage to his vehicle. Held: (1) The term
"injury" in s
52 of the Dog Control Act 1979 was not restricted to bodily injury but included
injury or
damage to property. (2) It was not necessary for the motor cyclist to prove negl
igence on the
part of the owner of the dog, and in the circumstances the owner of the dog was
liable, by
reason of the provisions of s 52 of the Act, for the damage to the motor cycle c
aused by the
dog.
IRVING V SLEVIN (1982) 30 SASR 66 (SA Sup Ct, Zelling J).
75. Attack on dog by other dog Defence of absence of "knowledge" .] Section
60 of
the Dog Control Act 1979 provides: "It shall be a defence to any charge of an of
fence against
this Act if the person charged proves that the contravention occurred without hi
s knowledge,
consent or connivance and that he exercised all due diligence to prevent it". He
ld, that
parliament, in including the word "knowledge", was contemplating something akin
to
"prescience" or "foreknowledge", and it is sufficient if a defendant shows that
he or she had
no guilty knowledge in that sense.
HANCOCK V CATT (1981) 28 SASR 497 (SA Sup Ct, Matheson J).
76. Dog rushing at vehicle or person whereby life or limb endangered or propert
y injured
Meaning of "rushes at" .] Observations as to the meaning of the phrase "rushes
at" in s 24
of the Registration of Dogs Act 1924, which provides that the owner of a dog is
liable to a
penalty and for damage to personal property done by the dog if the dog, upon any
street,
"rushes at any vehicle or rushes at or attacks any person, so that the life or l
imbs of any
person are endangered".
KLING V MORRELL [1966] SASR 166 (SA Sup Ct, Bright J).
77. Dog attacking person in or upon street, thoroughfare, highway or public pla
ce "Public
place" .] Section 24 of the Registration of Dogs Act 1924 provides that "if an
y dog, in or
upon any street, thoroughfare, highway or public place ... or on any premises ot
her than the
premises of or occupied by the owner of the dog" rushes at or attacks any person
, the owner
of the dog shall be liable to a penalty. N was charged on complaint before a cou
rt of
summary jurisdiction, under this section, with being the owner of a dog which in
a certain
public place, viz, the public portion of a shop, attacked a person. The evidence
showed that
N's dog entered the public portion of a shop during normal trading hours, and th
ere attacked
and bit a small boy. Held, that the words "public place" in s 24 must be constru
ed ejusdem
generis with the words "any street, thoroughfare, highway" immediately preceding
them and
the public portion of a shop was not a public place within the meaning of the se
ction.
ROSEY V NILSON [1959] SASR 54 (SA Sup Ct, Abbott J).
78. Dog attacking animals on premises other than premises of owner of dog "Pr
emises" .]
Section 24 of the Registration of Dogs Act 1924 provides, inter alia, that if
any dog, in or
upon any street, thoroughfare, highway, or public place in any part of the State
, or any
premises other than the premises of or occupied by the owner of the dog, attacks
any animal,
so that any animal is or may be injured or endangered, the owner of the dog shal
l be liable to
a penalty, and any person damnified in property may also recover from the owner
the amount
of the damage done by the dog. A dog owned by A attacked and injured sheep which
were in
a paddock of a farm owned by B. Held, that the paddock was "premises" within the
meaning
of s 24 of the Registration of Dogs Act.
WATTS V WELCH [1950] SASR 289 (SA Sup Ct, Mayo J).
199. Injury sustained "caused by" dog Dog rushing at garbage collector Plai
ntiff
injured jumping onto garbage truck Dog Control Act 1979 (SA), s 52 .]
KEEFFE V MCLEAN-CARR [1993] Aust Torts Reports 62,263 (81-224) (SA Sup Ct,
Olsson J).
[10] D. Western Australia
79. Extension of common law liability Biting by dog of neighbour at fence T
respass
Damages .] A dog, not known by its owners, the defendants, to have any misch
ievous
propensity, bit the plaintiff who leaned over the fence for the purpose of conve
rsing with one
of the defendants. In an action for damages the trial judge dismissed the claim.
The plaintiff
appealed. Held, allowing the appeal, that s 46(2) of the Dog Act 1976 imposes li
ability on a
dog owner for injury done by the dog but not in absolute terms, and consideratio
ns of
contributory negligence, volenti or trespass may condition or qualify liability.
No such
considerations applied in this case. In placing her arm over the defendants' fen
ce the plaintiff
was not a trespasser and the defendants were liable.
RIGG V ALIETTI [1982] WAR 203 (WA Sup Ct FC).
80. Extension of common law liability.] In an action for damages against the
owner for
injury done by a dog it is not necessary, since the passing of the Dog Act 1903,
to show
previous mischievous propensity in the dog, nor the owner's knowledge of such mi
schievous
propensity.
STREMPLE V WILSON (1904) 7 WALR 101 (WA Sup Ct FC).
81. "Permitting" dog to attack .] Held, that the effect of the Dog Act 1976,
ss 22, 25 and
33, is to impose on dog owners what amounts to almost strict liability, with the
result that
under the Act a person can be held responsible for "permitting" a dog to do some
thing even
although the dog was not in his possession or control at the time; an act may be
"permitted"
by a person even although it occurred without his knowledge, consent or connivan
ce.
JACKSON V ROTHERY (1984) 54 LGRA 92 (WA Sup Ct, Kennedy J).
200. Statutory nuisance Independent offence .] Held: (1) The provisions of
the Dog
Act 1976 (WA), s 38(1), create an offence quite independently of s 38(3), so tha
t a council
may proceed with a prosecution under sub-s (1) without having first to comply wi
th sub-s (3).
(2) A single incident can constitute an offence under s 38(2)(a) of the Act.
BRABIN V O'DIGA (1990) 2 WAR 378 (WA Sup Ct, Commr Pringle).
[11] E. Tasmania
82. Jurisdiction of Local Courts .] The Injuries to Sheep Act 1863, s 1, prov
ides that the
owner of every dog shall be liable for injuries done to sheep by his dog without
proof by the
plaintiff of mischievous propensity in the dog, scienter or negligence, and that
where the
damage claimed shall not exceed 10 "the same shall be recoverable in a summary wa
y ... in
the mode prescribed by the Magistrates Summary Procedure Act 1855". Held, that i
n
construing a statute words are directory unless there is something in the statut
e which plainly
or in effect enacts that a particular thing shall be done in a particular way an
d in no other
manner and there being no such words of negation in this section the words are o
nly
permissive and the local court had jurisdiction.
TORPY V HART (1915) 11 Tas LR 6 (Tas Sup Ct, Crisp J).
[12] F. Northern Territory
83. Whether liability created .] Held, that s 29 of the Registration of Dogs
Ordinance
1938 does not create a liability for damage done by dogs but relates only to the
ways
damages may be recovered where there is liability for damage.
FISCHER V STUART (1979) 37 FLR 46; 25 ALR 336 (NT Sup Ct, Forster CJ).
201. Dog not under effective control Mental element of offence .] Held: (1)
While an
offence under the Dog Act 1980 (NT), s 42(1), is prescribed as a regulatory offe
nce and the
dog owner's state of mind at the time of the events alleged is irrelevant to the
question of
guilt, the offence under s 37 is not so prescribed, and some requisite state of
mind on the part
of the dog owner forms an element of the offence. (2) The mental element in s 37
is that if
the owner intends that the dog be not under effective control, or if the owner f
oresees that
effective control over the dog may be lost as a possible consequence of conduct
on his part,
then the mental element of the offence is satisfied. (3) There is no statutory r
equirement or
general proposition of law that the victim of an offence be called to testify ag
ainst the person
accused of committing that offence. (4) The predominant public interest componen
t of the
regulatory offence under s 42(1) obviates any need to prove actual damage or inj
ury, or to
produce an alleged victim. The essential element of the offence is not injury su
ffered or
damage caused, but the very action of attacking or menacing a person or animal.
LEE V RICHARDSON (1992) 108 FLR 183 (NT Sup Ct, Martin J).
[13] G. Australian Capital Territory
84. Whether independent jurisdiction created .] Section 14(1) of the Dogs Reg
istration
Ordinance 1926 does not give to the Supreme Court an independent jurisdiction to
entertain
a claim for payment of damages for injury caused by a dog.
NEWSAM V LADD (1972) 22 FLR 16; [1972-73] ALR 1372 (ACT Sup Ct, Connor J).
[14-17] Pt III. Trespass by Animals.
[14-15] Divn 1. Cattle Trespass and Other Actions at Common Law
Effect of legislation on common law rights to bring action for trespass see PR
IMARY
INDUSTRY.
[14] A. Parties and Liability Generally
85. Trespass by dog Liability of owners Injunction .] The defendants' dog
s had, to
the knowledge of the defendants, frequently attacked the plaintiff's dog for alm
ost three
years; the plaintiff's dog had required veterinary treatment for injuries sustai
ned by it; such
wrongdoing was likely to continue. Held, that as its owners are not liable for t
he trespasses of
a dog, an injunction would not be granted to restrain the defendants from permit
ting their
dogs to enter upon the plaintiff's property.
JONES V LINNETT [1984] 1 Qd R 570 (Q Sup Ct, Ryan J).
86. Trespass by dog Who liable Absent owner .] V's dog trespassed on D's
land,
and ran barking after a mare belonging to D, and so frightened her that she atte
mpted to jump
a fence, but fell and broke her neck. V was not present at the time of the occur
rence. Held,
that V was liable for the value of the mare.
DOYLE V VANCE (1880) 6 VLR(L) 87; 1 ALT 167 (Vic Sup Ct FC).
87. Liability of landholder to neighbour for damage caused by animals ferae nat
urae
proceeding to neighbour's land Nuisance .] Animals are not "naturally on the
land" if
deliberately brought or attracted there, and thus: (1) A person is not liable me
rely for the
presence of animals ferae naturae, eg, rabbits, on his land, or for failing to d
estroy them, or
for damage they do if they move elsewhere. (2) If he deliberately brings or attr
acts animals
ferae naturae on to his land, so as to cause damage on the land of his neighbour
, he is liable,
unless he has a right reserved out of his neighbour's grant or otherwise to put
them there, in
which case the right must be exercised reasonably. (3) If a person's user of his
land naturally
attracts animals ferae naturae his neighbour has no remedy for resulting damage
to his land
providing the user of the land is normal, natural and reasonable; if not, he has
. Motive is
material, at least to assist in determining whether a user of land is normal, na
tural and
reasonable, and probably always where any apparently lawful user interferes with
a legal
right to quiet enjoyment.
PRATT V YOUNG (1952) 69 WN (NSW) 214 (NSW Dist Ct).
88. Pigs straying on to highway and entering opposite land from highway .] Th
e plaintiff
was a market gardener whose property abutted upon a public highway. The defendan
t kept
pigs on a property abutting upon the opposite side of the same highway. Certain
pigs of the
defendant escaped and proceeded by way of the highway to the plaintiff's market
garden, in
which there was, inter alia, a crop of ripe tomatoes, where they caused some dam
age. There
was no evidence of negligence against the defendant. Held, that the defendant's
pigs had
trespassed upon the land of the plaintiff, and the plaintiff was entitled to rec
over damages for
the damage to his land, notwithstanding the fact that they had entered from a hi
ghway.
D'AGRUIMA V SEYMOUR (1951) 69 WN (NSW) 15 (NSW Dist Ct).
89. Who may sue Licensee of land insufficiently fenced Effect of Land Act 1
869 (Vic)
.] A licensee, under ss 19 and 20 of the Land Act 1869, who has fenced with a
fence
which is not sheep proof, may sue for damages for sheep trespassing, although un
der s 30 he
may not, under such circumstances, impound.
RUTHERFORD V HAYWARD (1877) 3 VLR (L) 19 (Vic Sup Ct FC).
90. Who may sue Where animal trespassing Agent of owner of land .] A hors
e
trespassed on land of M, whose wife, M being absent, directed a child to drive i
t away, and
the child while doing so received a kick in the mouth. Held, that the child migh
t be regarded
as the agent of the owner of the land, acting under his instructions in driving
off the horse,
and could recover against the owner of the horse.
WAUGH V MONTGOMERY (1882) 8 VLR (L) 290; 4 ALT 77 (Vic Sup Ct FC).
91. Who liable Purchaser of trespassing animal Delivery not yet taken .]
Two bulls
grazing on open Crown lands were sold by the plaintiff to the defendant, nothing
being said
at the time of the sale about delivery. Afterwards on the same day the plaintiff
, at the request
of the defendant, promised to ask a third person to find the bulls and deliver t
hem to the
defendant, and the defendant agreed to pay that person for so doing. The plainti
ff asked the
third person to find and deliver the bulls, but he did not do so. Subsequently,
one of the bulls
entered upon the plaintiff's land, and there gored the plaintiff's mare. Held: (
1) The
possession of the bulls passed in point of law to the defendant at the time of t
he sale, and the
defendant was therefore liable for trespass. (2) The liability being in trespass
, the damages
recoverable extended to the loss following the goring of the mare, without proof
of scienter
or evidence as to its being in the ordinary nature of a bull to do that kind of
damage.
ALSOP V LIDGERWOOD (1916) 22 ALR (CN) 13 (Vic Cty Ct).
92. Who liable Trespass by cattle Joint liability of owners .] A and B we
re jointly
interested in a station, but the cattle running on it were there separate proper
ty; each of them
had his own distinct herd and stock yard, with different brands and stockmen, bu
t the
separate herds intermixed habitually on the joint land, and ran together. Held,
that A and B
were not jointly liable for the trespasses of their respective cattle.
OSBORNE V RUDD (1864) 3 SCR (NSW) 291 (NSW Sup Ct FC).
[15] B. Damages
Statutory limitation of damages see PRIMARY INDUSTRY.
93. Trespass by animals ferae naturae Measure of damages .] The measure of
damages
for damage caused by animals ferae naturae, discussed.
PRATT V YOUNG (1952) 69 WN (NSW) 214 (NSW Dist Ct).
94. Trespass by sheep Measure of damages .] M's sheep trespassed on C's lan
d. There
was evidence that the sheep ate off the whole of the grass. A drought intervened
, and the
grass did not grow again. After the action was commenced some 2,000 sheep belong
ing to C
died. Held, that the jury were properly directed that if the deaths of the sheep
resulted from
the grass having been eaten by the sheep of the defendant, the jury should take
that into
consideration in estimating the damages.
CHALLONER V MCPHAIL [1877] Knox 157 (NSW Sup Ct FC).
202. Trespass by goats Statutory limitation of damages where fence insufficie
nt .] The
common law right to recover damages for trespass by cattle is limited by the pro
visions of
the Cattle Trespass, Fencing and Impounding Act 1882 (WA), which statute was pas
sed with
the object of encouraging fencing. The provisions of s 22, limiting the damages
which may
be recovered for trespass in certain cases unless the land trespassed upon is en
closed by a
"sufficient fence", apply to trespass by goats (and pigs), although by s 30 a su
fficient fence is
defined to mean "any substantial fence reasonably deemed sufficient to resist th
e trespass of
great and small stock, including sheep, but not including goats and pigs". In an
action in a
Local Court for damages for trespass by goats and injury to crops, the magistrat
e found as a
fact that the land was not enclosed by a "sufficient" fence within the meaning o
f s 30, but
held that the limitation of damages in respect of insufficiently fenced land imp
osed by s 22
did not apply to trespass by goats and pigs, and awarded 25 damages. Held, that t
he plaintiff
was entitled to recover only nominal damages as for trespass upon uncultivated l
and.
COCHRAM V CROSS (1906) 8 WALR 90 (WA Sup Ct FC).
[16-17] Divn 2. Rights of Defence Against Trespassing Animals
[16] A. Distress Damage Feasant
Impounding trespassing animals under impounding legislation see PRIMARY
INDUSTRY.
95. Right of detention Extent of .] An owner of land may, in the absence of
any
enactment to the contrary, seize and drive off or impound cattle, damage feasant
, or may
drive them to a convenient place for the owner, and so far detain them.
JONES V CAMPION (1878) 4 VLR (L) 473 (Vic Sup Ct FC).
96. Common law right to impound Whether taken away by legislation .] The Po
unds
Act 1874 (Vic) does not do away with the common law right to impound animals tre
spassing.
MAIN V ROBERTSON (1876) 2 VLR (L) 25 (Vic Sup Ct, Fellows J).
97. Duty to impound .] Sheep seized as a distress, damage feasant, need not b
e conveyed
to the nearest pound immediately and without any delay, but may be detained for
a
reasonable time; and a person lawfully seizing sheep, damage feasant, and detain
ing them for
an unreasonable time previously to impounding them, or treating them in an impro
per
manner after seizure, eg, driving them too fast, does not thereby become a tresp
asser ab
initio.
[Earlier proceedings see (1884) 10 VLR (L) 17; 5 ALT 172.]
SANDERSON V FOTHERINGHAM (1884) 10 VLR (L) 289; 6 ALT 122 (Vic Sup Ct FC).
98. Duty to impound .] Held, that the provisions of the Pounds Statute 1865 (
Vic) as to
driving to the "nearest pound" were merely directory and not mandatory.
BUTCHER V SMITH (1868) 5 WW & A'B (L) 223 (Vic Sup Ct FC).
99. Exemptions Animals in personal possession Nature of possession .] Per
Henchman and E A Douglas JJ For animals to be exempt from distress damage feas
ant
there must be such possession, control and present use, that seizure would be li
kely to lead to
a breach of the peace.
SWENSON V DRAYTON SHIRE COUNCIL [1932] QSR 98; (1931) 26 QJPR 35 (Q Sup Ct
FC).
100. After animals cease to trespass .] Animals damage feasant can only be di
strained
while actually trespassing, and, should they be distrained after they have cease
d to trespass,
the owner may rescue them before they reach the pound. A conviction for rescuing
sheep on
the way to a pound for damage feasant was quashed, as it was not proved that the
person who
seized them was the proprietor of the land on which they were alleged to have be
en
trespassing.
RIDDLE V YOUNG (1869) 2 QSCR 31 (Q Dist Ct).
101. Right of action for pound breach Whether affected by statute .] In an
action in a
local court, the plaintiff alleged that the defendants' horses had trespassed on
his land and
damaged his crops, and that upon his impounding the horses on the land, the defe
ndants
broke and entered on his land and rescued the horses, and, in doing so, caused t
he plaintiff's
horses to take fright and escape, and he was put to loss of time in recovering t
hem and lost
his recourse against the defendants' horses and suffered damages. Held, that the
claim was
within the jurisdiction of the local court, and the plaintiff's right to proceed
in that court, was
not affected by the fact that certain limited remedies by proceedings before jus
tices were
created by the Cattle Trespass, Fencing and Impounding Act 1882 (WA).
LUGG V SCHORER (1911) 13 WALR 170 (WA Sup Ct FC).
[17] B. Right to Destroy Trespassing Animals
Statutory right to seize and destroy dogs see [19].
102. Dog found at large in enclosed place with sheep Common law right .] At
common law, chasing by dogs which causes any real and present danger of serious
harm to
the animals chased constitutes an "attack" which entitles the owner of such anim
als to take
effective measures of prevention. The onus of proof is on such owner to justify
the
preventive measure of killing the attacking dogs, and he has by proof to establi
sh two
propositions, but each proposition may be established in either of two ways: Pro
position No
1: That at the time of the killing the dog was either (a) actually (in the above
sense) attacking
the animals in question, or (b) if left at large, would renew the attack so that
the animals
would be left presently subject to real and imminent danger unless renewal was p
revented.
Proposition No 2: That either (a) there was, in fact, no practicable means, othe
r than killing,
of stopping the present attack or preventing such renewal, or (b) that the defen
dant, having
regard to all the circumstances in which he found himself, acted reasonably in r
egarding the
killing as necessary for the protection of the animals against attack or renewed
attack.
RAMAGE V EVANS [1948] VLR 391; [1948] 2 ALR 526 (Vic Sup Ct FC). [Discussed in
notes, 23 ALJ 277; 43 QJP 17.]
103. Turkeys damaging crops .] Some turkeys, the property of the plaintiff, t
respassed on
the defendant's land and damaged his crops; he shot them. Held, that the defenda
nt had no
reasonable grounds for believing such a course to be necessary he could have d
istrained
damage feasant; and that, having regard to the express provisions of the Inclose
d Lands Act
1878 (Q) and the Local Authorities Act 1902 authorising destruction of swine, go
ats and
geese, the destruction of the turkeys was not justified by their trespassing, ev
en if doing
damage.
KELLY V NUFER [1918] QWN 13; 12 QJPR 31 (Q Dist Ct).
104. Meaning of "destroy" Wound resulting in death nine days afterwards .]
Goats
were trespassing on W's land. W shot at one and wounded it, and it did not die f
or nine days
afterwards. Held, that s 18 of the Pounds Act 1874 (Vic) did not impose any obli
gation to kill
the animal instantaneously or any liability for injuring the animals.
BAGSHAW V WILLS (1874) 5 AJR 115 (Vic Sup Ct FC).
105. Destruction of trespassing swine Right to appropriate carcase .] Under
s 27 of the
Impounding Act 1865 (NSW), a person destroying a trespassing pig has no right to
appropriate the carcase.
R V DILLON (1878) 1 SCR (NS) (NSW) 159 (NSW Sup Ct FC).
[18-34] Pt IV. Various Statutory Provisions
Abattoirs, Dairies see HEALTH LAW.
Fish and fisheries, Stock and poulty, Vermin see PRIMARY INDUSTRY..
[18-19] Divn 1. Dogs Registration, Identification of Owners and Seizure and D
estruction
Injuries by dogs see [2-13].
[18] A. Offences
106. Not registering Failure to renew registration .] Section 4 of the Dog
and Goat Act
1898 (NSW) provides that a keeper of a dog shall register his dog and renew the
registration
from year to year. A person who fails to renew the registration of a dog may be
charged with
not registering it.
EX PARTE MASSEY (1899) 15 WN (NSW) 216 (NSW Sup Ct FC).
107. Owner of unregistered dog Meaning of owner .] In cases where no injury
has
been done by a dog the person to be held owner must have had the dog in his cust
ody and
control, and evidence that a dog unregistered has been harboured by or permitted
to live on
the premises of a person does not make such person the owner so as to be liable
for
non-registering it.
SKENE V ALLEN (1879) 5 VLR (L) 179; 1 ALT 12 (Vic Sup Ct FC).
108. Owner of unregistered dog Meaning of owner .] It is provided by s 3 of
the Dog
Act 1928 (Vic) that: "Proof ... that any person is the occupier of any house or
premises where
a dog is usually kept or harboured or permitted to live or remain, shall be prim
a facie
evidence that such person is the owner of such dog within the meaning of this Ac
t". Held,
that "occupier" connotes that person who has the right to exclude other persons
from the
premises. Held, accordingly, that the facts that a defendant lived in a house wh
ere dogs were
seen, that he lived with his wife and that another man was occasionally seen on
the premises,
were not sufficient to render him liable to conviction on a charge of failure to
register the
dogs.
MUIRHEAD V BON [1939] ALR (CN) 500 (Vic Sup Ct, Lowe J).
109. Keeping unregistered dog Second prosecution in same year .] The owner
of a dog
who had failed to register the dog during the time prescribed, and had been summ
arily
convicted for such default, could not (under the Dog Act 1883 (WA) and Amending
Act
1885) be convicted of a subsequent offence for non-registration of the dog durin
g the same
year, as the statutes only contemplated one offence.
BAGOT V MILNE (1898) 1 WALR 30 (WA Sup Ct FC).
110. Owner of unregistered dog who keeps said dog Evidence No presumption o
f
keeping .] There is no presumption raised by s 9 of the Registration of Dogs A
ct 1924
(SA) that a dog has been kept at a particular place within a district. Evidence
of such keeping
must be given.
FOREMAN V SMITH [1927] SASR 366 (SA Sup Ct, Angas Parsons J).
[19] B. Seizure and Destruction
Right to destroy trespassing animals generally see [17].
111. Justifiable destruction Attacking animal Dog at large Destruction wi
thout
seizure Engraving on collar Legibility .] The destruction of a dog which i
s not
engaged in the very act of attacking a person or animal may be justified under s
20 of the
Dog and Goat Act 1898 (NSW). Whether the destruction of a dog, which is found at
tacking a
person or animal but desists upon the approach of the person who thereupon destr
oys it, is
justifiable, is a question of fact to be determined in the circumstances. A dog
found at large,
in the circumstances set out in s 12(2) of the Dog and Goat Act 1898, may be kil
led or
destroyed immediately, without first being seized. The word "engraven" in that s
ection
connotes some degree of cutting, corroding, impressing, or, at least, scratching
; and the word
"legibly" involves reasonable visibility. Killing a dog may be an offence under
s 539 of the
Crimes Act 1900, unless, at the time of such killing, the person who killed acte
d under a
reasonable supposition that he was justified in so doing. If he had an honest be
lief, founded
upon reasonable grounds, that such killing was necessary to protect his property
from attack
or injury, no offence would be committed under the section.
DEEPS V COOK (1938) 55 WN (NSW) 115 (NSW Ct of Cr App).
112. Justifiable destruction Dog found "at large" without being under "immedi
ate
custody, protection, or control" of some competent person .] Section 12(2) of
the Dog and
Goat Act 1898 (NSW) provides: "Every dog, whether registered or not, found at la
rge in any
part of any city, town, or police district without being under the immediate cus
tody,
protection, or control of some competent person, may, unless such dog has a coll
ar round its
neck with the name and address of its owner legibly engraven thereon ... be imme
diately
killed or destroyed, and all persons are hereby authorized and all constables es
pecially
ordered to seize, kill, and destroy every such dog". A shearing contractor, havi
ng taken his
trained sheep dog to the station property where he was working, one afternoon le
ft the dog in
a truck while he went inside a shearing shed. The dog, having left the truck and
the
immediate vicinity of the shed, started ex mero motu to round up sheep in a neig
hbouring
paddock. A station employee twice called the dog and then shot it dead. Held: (1
) The dog
was "at large" within the meaning of s 12(2). (2) (by Street CJ and Owen J (Herr
on J
dissenting)) On the facts a finding that the dog was in the "immediate custody,
protection, or
control" of some competent person was not open.
JOLLIFFE V DEAN (1954) 54 SR (NSW) 157; 71 WN 90 (NSW Sup Ct FC).
113. Justifiable destruction Dog found at large in enclosed place with sheep
Statutory
right Common law right .] The defendant, a farmer, was the owner of an enclo
sed
paddock in which the plaintiff's three dogs were found at large among the defend
ant's sheep,
some of which they had attacked and injured. The defendant's sister captured the
dogs and
locked them in a shed, where they were kept for about five hours, until the defe
ndant, having
well founded fears that the dogs would escape from the shed and renew their atta
ck upon the
sheep, poisoned them. Held, that s 19 of the Dog Act 1928 (Vic) did not afford a
defence to
the defendant in an action for damages for the value of the dogs, as that sectio
n only
authorized the killing of dogs at the time when they were found at large in an e
nclosed
paddock. At common law, chasing by dogs which causes any real and present danger
of
serious harm to the animals chased constitutes an "attack" which entitles the ow
ner of such
animals to take effective measures of prevention. The onus of proof is on such o
wner to
justify the preventive measure of killing the attacking dogs, and he has by proo
f to establish
two propositions, but each proposition may be established in either of two ways:
Proposition
No 1: That at the time of the killing the dog was either (a) actually (in the ab
ove sense)
attacking the animals in question, or (b) if left at large, would renew the atta
ck so that the
animals would be left presently subject to real and imminent danger unless renew
al was
prevented. Proposition No 2: That either (a) there was, in fact, no practicable
means, other
than killing, of stopping the present attack or preventing such renewal, or (b)
that the
defendant, having regard to all the circumstances in which he found himself, act
ed
reasonably in regarding the killing as necessary for the protection of the anima
ls against
attack or renewed attack.
RAMAGE V EVANS [1948] VLR 391; [1948] 2 ALR 526 (Vic Sup Ct FC). [Discussed in
notes, 23 ALJ 277; 43 QJP 17.]
114. Justifiable destruction Dog found at large in enclosed place with sheep.
] Certain
employees of the defendant found a dog "rounding up" some of his sheep in an enc
losed
paddock and subsequently the dog accompanied them on their work in mustering the
sheep
for the remainder of the day, and ultimately followed them home, and was there t
ied up by
them. The dog did not interfere with the mustering, and one of the defendant's e
mployees in
fact endeavoured to use it in connection with the work next day. The defendant h
aving heard
that the dog had been seen in the paddock with the sheep on two days, and that s
ome sheep
had been injured, thereupon destroyed the dog, after it had been tied up for som
e 14 or 16
hours. Held, that the defendant was not justified under s 22 of the Dog Act 1903
(WA) in
destroying the dog except immediately upon its being found at large in an enclos
ed field, in
which sheep or cattle were confined, or immediately after the finding, so that t
he finding and
the destroying should form one transaction.
SOMMERS V SANDILANDS (1910) 13 WALR 53 (WA Sup Ct FC).
115. Justifiable destruction Dog found at large in enclosed place with sheep.
] Section
19 of the Dog Act 1928 (Vic) permits an owner or occupier (or a person acting un
der the
authority of such owner or occupier) of a field, paddock, yard or other place en
closed by a
fence in which sheep, cattle or poultry are confined to destroy any dog found at
large therein.
Held, that the section has no application where the killing takes place in a bui
lding.
HENDRY V FISHER [1954] VLR 539; [1954] ALR 973 (Vic Sup Ct, Herring CJ).
116. Justifiable destruction Dog worrying sheep in enclosed field "Worrying
" .]
Section 21 of the Registration of Dogs Act 1924 (SA) provides: "The owner or occ
upier of
any enclosed field, paddock, yard, or other place in which any cattle, sheep, ho
rse or poultry
is or are confined ... may ... shoot or otherwise destroy any dog (a) found wo
rrying any
cattle, sheep, horse, or poultry in the enclosed field, paddock, yard, or other
place; or (b)
found in any such field, paddock, yard or other place where any cattle, sheep, h
orse, or
poultry has or have apparently quite recently been worried, killed, or injured b
y a dog or
dogs, whether the owner of the dog is or is not known". Held, that the word "wor
rying" in s
21 means more than seizing by the throat with the teeth and tearing or laceratin
g, or killing
or injuring by biting or shaking: it extends at least to include chasing which c
auses any real
and present danger of serious harm.
HANLIN V O'SULLIVAN [1954] SASR 286 (SA Sup Ct FC).
117. "Dog found wandering at large" .] The expression "wandering at large" in
s 14 of the
Dog Act 1890 (Vic) means roaming about without any control whatever. A dog waiti
ng
outside a barber's shop for its owner, who is within, is not wandering at large
within the
meaning of the section.
ALBERD V HICKINBOTHAM (1901) 26 VLR 662; 22 ALT 150; 7 ALR 38 (Vic Sup Ct,
Hood J).
118. Destruction order Dog attacking person and animals Person bitten when
saving
dog under attack Attacking dog past winner of national obedience trials No e
vidence
of previous attacks Destruction order quashed .]
JACKSON V ROTHERY (1984) 54 LGRA 92 (WA Sup Ct, Kennedy J).
119. Unauthorised seizure Prosecution Who may lay information .] The owne
r of
the dog may, under s 17 of the Dog Act 1890 (Vic), prosecute an officer of the m
unicipality
for seizing or destroying his dog otherwise than in accordance with the provisio
ns of the Act.
ALBERD V HICKINBOTHAM (1901) 26 VLR 662; 22 ALT 150; 7 ALR 38 (Vic Sup Ct,
Hood J).
203. Destruction order Whether application to set aside available Whether a
ppeal
available .] Quaere, whether an order under s 50(1) of the Dog Control Act 197
9 (SA) that
dogs be destroyed could properly be the subject of an application under s 76a of
the Justices
Act 1921 to have an "order" set aside, or could be the subject of an appeal unde
r s 163 of the
Justices Act.
THOMAS V JAMES (1988) 64 LGRA 310 (SA Sup Ct, Perry J).
[20-24] Divn 2. Prevention of Cruelty to Animals
[20-23] A. Offences
[20] (i) Causing Unnecessary Pain and Cruelly Illtreating
120. "Cruelty" "Aggravated cruelty" Whether statutory definition exclusive
.] The
Prevention of Cruelty to Animals Act 1979 (NSW), s 4(2) and (3), contains exclus
ive
definitions of the terms "cruelty" and "aggravated cruelty" for the purposes of
the Act.
Accordingly, upon a charge of committing an act of cruelty or aggravated cruelty
upon an
animal no evidence may be led of matters not within those subsections, but other
wise
constituting cruelty in the ordinary meaning of the word.
SPRY V FLYNN [1983] 1 NSWLR 190 (NSW Sup Ct, Hunt J).
121. Person in charge Acts of cruelty .] Section 5(2) of the Prevention of
Cruelty to
Animals Act 1979 (NSW) provides that a person in charge of an animal is deemed t
o have
authorized the commission of an act of cruelty upon an animal, if he has failed
at any time
(a) to exercise such reasonable care, control or supervision of the animal as wo
uld have
prevented the commission of an act of cruelty upon the animal; (b) where pain ha
s been
inflicted upon the animal to take such reasonable steps as would have alleviat
ed the pain;
or (c) where it has been necessary that the animal be provided with veterinary t
reatment for a
period of time to provide it with that treatment for that period. Held, that s
5(2) provides
three separate and independent sets of circumstances in which a person is deemed
to have
authorised the commission of an offence of cruelty upon an animal. Accordingly:
(a) s
5(2)(b) creates an offence of being a person in charge of an animal and failing,
where pain
has been inflicted upon it, to take reasonable steps to alleviate the pain; and
(b) s 5(2)(c)
creates an offence of being a person in charge of an animal and failing to provi
de veterinary
treatment where it has been necessary to do so.
DUVALL V SPRY [1982] 2 NSWLR 68 (NSW Sup Ct, Waddell J).
122. Act of omission .] Proof of pain and suffering caused to an animal by an
act of
omission or neglect may be sufficient to establish the offence of cruelly illtre
ating an animal
within the meaning of s 4(1)(a) of the Prevention of Cruelty to Animals Act 1901
(NSW).
MCNAMARA V NOBLE (1937) 54 WN (NSW) 148 (NSW Sup Ct, Maxwell J).
123. Act of omission Failure to relieve or end pain .] In a prosecution fo
r cruelly
illtreating an animal laid under s 4(1)(a) of the Prevention of Cruelty to Anima
ls Act 1901
(NSW), it is not sufficient to prove that something might have been done which m
ight have
relieved or ended the pain caused to an animal by the defendant. It must be show
n that the
failure of the defendant to do some specific act was, in fact, the cause of the
pain. Further, it
must be shown that the specific act the omission of which was the cause of the p
ain, was an
act which the defendant could have done, and might, under the circumstances have
been
reasonably expected to do. Further, it must also be shown that the specific act
omitted to be
done by the defendant would have diminished or ended the pain actually suffered
by the
animal.
HOLLIDAY V CALDWELL (1939) 56 WN (NSW) 182 (NSW Sup Ct, Bavin J).
124. Sufficiency of evidence "Pain" .] Section 59 of the Police Offences Ac
t 1958
(Vic) defines "cruelty" in Divn 2 of Pt II, which relates to the protection of a
nimals, as "the
infliction upon any animal of pain that in its kind or its degree or its object
or its
circumstances is unreasonable". On a charge of carrying an animal in circumstanc
es
involving cruelty it was proved that a dog, apparently in perfect health, died w
hilst shut in the
boot of a motor car for four hours on a very hot day. Held, that the only reason
able inference
to be drawn was that pain was inflicted on the dog without reasonable necessity
and
therefore, cruelty was established. Meaning of "pain" considered.
CHRISTIE V BRUCE [1962] VR 654 (Vic Sup Ct, Herring CJ).
125. Acts of cruelty Liability of statutory authority Necessity for mens re
a .] The
Victorian Railways Board does not enjoy the shield of the Crown in its performan
ce of
contracts for the carriage of animals. Accordingly it is liable to prosecution a
nd conviction
under s 4(2) of the Protection of Animals Act 1966 (Vic) for acts of cruelty upo
n animals at
least in so far as the offences do not require proof of knowledge or guilty inte
nt.
VICTORIAN RAILWAYS BOARD V SNOWBALL [1983] VR 689 (Vic Sup Ct, Marks J).
126. Necessity for mens rea .] It is not necessary, in order to procure a con
viction on a
charge, laid under s 4(1)(a) of the Prevention of Cruelty to Animals Act 1901 (N
SW), of
cruelly illtreating an animal, that it should be proved that the person charged
intended to
inflict unnecessary suffering on the animal.
EX PARTE LAIDLAW; RE COOPE (1935) 52 WN (NSW) 184; 12 LGR 123 (NSW Sup Ct
FC).
127. Necessity for mens rea .] Semble, where a person is charged under s 9(e)
of the
Animals Protection Act 1890 (Vic) with causing unnecessary pain to an animal it
must be
shown that there was an intention to cause pain.
HESFORD V GILLIAM (1898) 4 ALR (CN) 90 (Vic Sup Ct, Madden CJ).
128. Defence of reasonable mistake of fact Suspending or "hanging" dog .] T
he
appellant was convicted of illtreating an animal by unreasonably causing it unne
cessary pain,
contrary to s 5(1)(a) of the Prevention of Cruelty to Animals Act 1936 (SA). The
evidence
was that while training a three month old collie puppy for entry in a dog show,
he had, for
disciplinary purposes, on three occasions hung the dog clear of the ground by hi
s neck from
his lead and collar for about 20 seconds. Held: (1) The defence of reasonable mi
stake of fact
is excluded from the offence charged. The words "unreasonably" and "unnecessary"
are to be
construed objectively, and that defence is inconsistent with such a construction
. (2) There
was evidence on which it could be found that the pain was inflicted without an a
dequate and
reasonable object, and appeal against the conviction should be dismissed.
MORGAN V MASTERS (1980) 25 SASR 128 (SA Sup Ct, Matheson J).
129. Permitting animal to be cruelly illtreated Failure to exercise reasonabl
e care and
supervision Absence of knowledge that cow suffering from ravages of disease .]

Section 4(1)(a) of the Prevention of Cruelty to Animals Act 1901 (NSW) provides,
inter alia,
that whosoever permits or suffers to be cruelly illtreated any animal shall, on
summary
conviction, be liable to certain punishment. Section 4(1A)(a) of the Act provide
s, "For the
purposes of subsection one of this section an owner or person in charge of an an
imal shall be
deemed to have permitted any act or omission hereby made punishable if he shall
have failed
to exercise reasonable care and supervision in respect to the protection of the
animal
therefrom, or failed to take reasonable steps to prevent the unnecessary sufferi
ng of the
animal". Held, that under s 4(1A)(a) a person in charge of a diseased animal mus
t be deemed
to have known of and to have permitted suffering from the disease if it is prove
d that his
absence of knowledge was the result of his failure to exercise reasonable care a
nd
supervision of the animal.
CLARK V MADDEN (1964) 82 WN (Pt 1) (NSW) 256; sub noms LANGHAM V MADDEN
11 LGRA 288; RE MADDEN 1 DCR 14 (NSW Ct of Q Sess). [Discussed in note, 5 Land L
Serv 310.]
130. Elements of offence Form of complaint .] A complaint under s 4 of the
Prevention of Cruelty to Animals Act 1908 (SA), which does not mention any of th
e states of
mind that are essential to the constitution of the offence thereby constituted,
does not give a
reasonably clear and intelligible statement of the charge. Where the appellant,
on a dark
night, collided with and injured a horse, but the facts showed that he did not k
now the extent
of the injuries, and unsuccessfully made a search for and inquiries about the an
imal
immediately after the accident, Held, in the circumstances, that the defendant h
ad not caused
unnecessary pain unreasonably, wantonly, or maliciously.
GOLDSWORTHY V LYONS [1935] SASR 7 (SA Sup Ct, Murray CJ).
131. Using live rabbit in training of greyhounds .]
RE Appeals of INGRAM (1970) 2 DCR (NSW) 259 (NSW Ct of Q Sess).
132. Coursing .] It follows from the recognition of coursing as a legitimate
form of
activity by the Gaming and Betting Act 1912 (NSW), in particular ss 7, 47(1)(a)(
i) and 47E,
and by s 4(1)(k) of the Prevention of Cruelty to Animals Act 1901, that such dis
tress or pain
as is normally incidental to coursing carried on in the usual way cannot be rega
rded as
cruelty or illtreatment of a hare within the meaning of the Prevention of Cruelt
y to Animals
Act.
Appeal of REDMAN (1949) 49 SR (NSW) 360; 66 WN 188 (NSW Ct of Cr App).
133. Failure to release dog from trap for several hours after knowledge that do
g caught in
trap .] Section 5 of the Prevention of Cruelty to Animals Act 1936 (SA) provid
es, inter
alia, that any person who illtreats any animals shall be guilty of an offence; a
nd by s 4 of that
Act "illtreat" is defined as including "unreasonably to cause unnecessary pain".
A woman set
rabbit traps at night in her premises with the object of catching an animal whic
h had been
attacking her poultry. A dog was caught by its hind paws in one of the traps, an
d thereby
suffered pain. The woman saw the dog caught in the trap at 4.30 am. Although she
knew, or
had cause to believe, that a man living nearby was the owner of the dog, she too
k no
effective steps to secure the release of the dog from the trap until about 7.45
am. Held: (1)
Having caught the dog in the trap, the woman was under a duty to take reasonable
measures
to secure its release from the trap as soon as possible. (2) By her failure to t
ake such
measures she had unreasonably caused the dog unnecessary pain and was guilty of
an offence
against s 5 of the Act.
MARTIN V GIBSON [1954] SASR 29 (SA Sup Ct, Reed J).
134. Non-disclosure to owner of injury innocently caused Time and duration of
the
offence .] The respondent undertook to treat a horse, and in the cause of his
treatment he
inserted a catheter into the animal's urethra. The catheter broke, and the horse
was returned
to its owner with the broken pieces left in the urethra. The evidence did not sh
ow how long
after the breaking the horse was in the custody of the respondent. The responden
t did not tell
the owner that fragments of the catheter had been left in the urethra. More than
one month
after the breaking of the catheter an information was laid against the appellant
for illtreating
the horse by unreasonably causing it unnecessary pain. Held: (1) If the responde
nt allowed
the broken pieces of the catheter to remain in the urethra for an unreasonable t
ime without
taking any steps to alleviate the pain or without taking any steps to secure the
ir removal he,
by so doing, unreasonably caused unnecessary pain. (2) The respondent was under
a duty to
inform the owner of the horse within a reasonable time that the fragments were i
n the
animal's urethra. (3) As the respondent had caused the pain to the animal, he un
reasonably
caused the animal unnecessary pain after the time when he should have given info
rmation to
the owner unless he could establish a lawful excuse for causing the pain. (4) Th
e offence was
an offence continuing during the period of non-disclosure.
[[1925] SASR 298 revd.]
MARTIN V CARPENTER [1925] SASR 421 (SA Sup Ct FC).
135. Conveying in such manner as to cause unnecessary suffering What amounts
to
Jurisdiction of court in respect of offence on British ship on high seas .] Se
ction 1 of the
Protection of Animals Act 1911 (Imp) provides: "If any person ... (b) shall conv
ey or carry, or
cause or procure, or being the owner, permit to be conveyed or carried, any anim
al in such a
manner or position as to cause that animal unnecessary suffering; ... such perso
n shall be
guilty of an offence of cruelty within the meaning of this Act". A number of hor
ses, having
been consigned by sea from Melbourne to Launceston, were shipped in horse boxes
on the
upper deck of a British ship, neck ropes and back ropes being attached in the us
ual way.
Before loading the horses, the mate told the shippers that the weather was not s
uitable for
carrying stock, but, nevertheless, the horses were loaded. Outside Victorian ter
ritorial waters
and before reaching Tasmanian territorial waters the ship rolled so heavily and
took so much
spray inboard that the horses took fright, and severely injured themselves, some
of them
dying in circumstances leaving no doubt that they had been subjected to acute su
ffering.
Held: (1) The law of Tasmania does not run outside the territorial waters of Tas
mania: the
law applicable to the ship on the high seas was the law of England. (2) A Tasman
ian court
has jurisdiction under the Admiralty Offences (Colonial) Act 1849 to exercise ju
risdiction in
respect of an offence against s 1 of the Protection of Animals Act 1911 committe
d on the
high seas. (3) The horses had been conveyed in such a manner as to cause unneces
sary
suffering within the meaning of s 1 of the Protection of Animals Act 1911.
WILLIAM HOLYMAN & SONS PTY LTD V EYLES [1947] Tas SR 11 (Tas Sup Ct, Morris
CJ).
136. Ear marking pig .] It is not an offence under the Cruelty to Animals Act
1850
(NSW) to cut the ear of a pig for the purpose of identification if it is done re
asonably in the
usual way and without unnecessary cruelty.
BEHAN V MCLEAN (1894) 10 WN (NSW) 143 (NSW Sup Ct, Foster J).
137. Cruelly illtreating sheep What constitutes .] The defendant was employ
ed to clear
trucks of sheep as they arrived at the sale yards. His duty was to place on one
side injured
sheep, which were subsequently removed by another person. The defendant removed
some
injured sheep from the trucks at 2 am, and they were left lying on the platform
until 8 am,
and were trampled on by other sheep. The defendant was not authorized to kill in
jured sheep,
and could not have placed the sheep in question in a more convenient place on th
e platform,
and believed that they would be removed within a reasonable time. Held, that the
defendant
was not guilty of cruelly illtreating the sheep.
BAXTER V DOLSEN (1911) 28 WN (NSW) 129 (NSW Sup Ct, Ferguson AJ).
138. Justifiable attempt to kill Mistaken belief that animal killed .] Sect
ion 3 of the
Animals Protection Act 1901 (Q) defines "cruelty" as "the intentional or deliber
ate infliction
upon any animal of pain that in its kind or degree or its object or its circumst
ances is
unreasonable or wanton or malicious". Section 4 of the same Act provides that "e
very dog
which on any public road, street, or place in any manner causing danger or injur
y to any
person, rushes at or barks at any person or any animal, vehicle, bicycle, or tri
cycle upon or in
which any person is riding, may be then and there killed or attempted to be kill
ed by such
person or by any other person then present, without liability to any action or o
ther proceeding
whatsoever by any person whomsoever for or by reason of such killing or attempte
d killing".
The defendant when boarding a tramcar was attacked by a dog. As soon as possible
he
alighted from the tramcar and walked back. Some eight or nine minutes later he e
ncountered
the dog. Securing a stick about four feet long and from one to one and one-half
inches thick
he struck the dog delivering about 20 blows on or about the neck. He left the do
g believing it
to be dead. Two hours later the dog was discovered by other persons still alive
but in a dying
and paralysed condition. It was subsequently shot by an official of the Society
for the
Prevention of Cruelty. Held, that the defendant was justified under the Act in a
ttempting to
kill the dog and that he did his best to kill it with the means available. His i
ntention was to
kill it and he thought he had killed it but in this he was honestly and reasonab
ly mistaken
within the meaning of s 24 of the Criminal Code, and was consequently not guilty
of cruelty.
FOREMAN V BOWSER (1918) 12 QJP (Mag Cas) 108 (Q Police Ct).
204. Causing suffering to dog Sentence Deterrence Mitigating factors Co
ntrition
Good character Plea of guilty .]
WEST V HARRIES (1991) 58 A Crim R 86 (SA Sup Ct, Olsson J).
[21] (ii) Relating to the Use of Horses
139. Over-driving Unreasonable circumstances .] Section 9 of the Animals Pr
otection
Act 1890 (Vic) must be read with s 3 of the Act. Therefore, although over-drivin
g is proved,
the justices should look at all the circumstances of the case, and unless they c
ome to the
conclusion that the over-driving was under the circumstances unreasonable, they
cannot find
the defendant guilty of cruelty.
BIGGS V FITZGIBBON (1898) 24 VLR 548; 20 ALT 111; 4 ALR 249 (Vic Sup Ct, Hodges
J).
140. Over-driving Aiding or abetting any person in commission of offence .]
The
defendant borrowed a horse and small cart, and with two others journeyed to a pl
ace 15 miles
off. After a few hours the three made the return journey to catch a train. The e
vidence
showed that the horse had been over-driven. After its return the horse refused f
ood and died
on the same day. The defendant was not seen to actually drive, but he was in the
cart during
the whole journey. By s 4 of the Animals Protection Act 1901 (Q), over-driving a
n animal is
an act deemed to involve cruelty, and s 5 provides that no person shall do any a
ct which
involves cruelty, and s 13 provides that every person shall be deemed to be guil
ty of an
offence under the Act who (a) actually commits such offence; or (b) aids or abet
s any person
in commission thereof. The defendant was charged with treating an animal in circ
umstances
involving cruelty to wit, over-driving a roan mare. The justices dismissed the
complaint,
considering that the defendant should have been charged under s 13(b), (c) or (d
), and not
under s 13(a). The justices refused to allow an amendment, because such amendmen
t would
charge the defendant with a new offence. Held, that an amendment was not necessa
ry; the
evidence established that the defendant had committed an offence; and the case s
hould be
remitted to the justices with an intimation of that opinion.
ADAMS V MONEYPENNY [1915] QSR 195; 9 QJPR 194 (Q Sup Ct FC).
141. Using horse while unfit for use Owner Person working horse .] The ap
pellant
was convicted of wilfully illtreating a horse by working it while it had sore sh
oulders. The
horse was one of a team engaged in carting wool, was in good condition, but had
several
sores on the shoulders. Evidence was given that the horse was the property not o
f the
appellant, but of a man called Schlink. Held, that the evidence did not establis
h any offence
under s 4(1)(h) of the Prevention of Cruelty to Animals Act 1908 (SA) as it was
not shown
that the horse was unfit for the use it was put to, but that there was evidence
on which the
justices could conclude that the defendant had unreasonably caused unnecessary p
ain to the
animal, and, therefore, could properly convict under s 4(1)(a). Semble, where th
e evidence is
such as to constitute an offence against sub-s (1)(h), and also against sub-s (1
)(a), literally
read, and the evidence supports nothing more than an offence against s 4(1)(h),
the proper
course is to lay an information under sub-s (1)(h), not under sub-s (1)(a). Sub-
s (a) must in
such circumstances be construed as not covering the things forbidden by sub-s (1
)(h).
CUNNINGHAM V SPARROW [1924] SASR 17 (SA Sup Ct, Poole J).
142. Using horse while unfit for use Onus of proof Prosecution of owner M
ens rea
Offence by servant without master's knowledge .] Where a horse driven along
a street
is unfit for use, the owner of the horse is guilty of an offence without evidenc
e of knowledge
on his part that the horse was unlawfully used.
TRENCHARD V RYAN (1910) 10 SR (NSW) 618; 27 WN 127 (NSW Sup Ct FC).
143. Using horse while unfit for use Onus of proof Horse driven by defendan
t's son .]
On an information against the owner of a horse for knowingly using it when unf
it for use,
contrary to s 4(1)(h) of the Prevention of Cruelty to Animals Act 1908 (SA), it
was proved
that the horse was driven by the owner's son. There was no evidence that the son
was in the
father's employ or was under his control or direction, or that the horse was bei
ng driven for
the father's benefit. The owner was convicted. Held, that the conviction was rig
ht, as the
section constituted the act an offence generally, and the onus of proving any ex
emption or
excuse was on the owner.
WILSON V HOMES [1923] SASR 555 (SA Sup Ct, Angas Parsons J).
[22] (iii) Neglect to Supply Food
144. When constituting intentional cruelty .] Circumstances under which negle
ct to feed
animals was held to amount to intentional cruelty.
RATTRAY V MCINTYRE (1900) 6 ALR (CN) 69 (Vic Sup Ct, Holroyd J).
145. Who liable Owner Animals on agistment .] The appellant, the owner of
certain horses, was convicted of negligently failing to supply them on 15 June 1
923 with
proper and sufficient food. They were at that date depastured on agistment. It w
as found that
if the appellant had used due diligence he would have known on that date that th
e horses, in
all probability, were not getting proper and sufficient food. Held, that the con
viction was
right. Section 4(1)(a) of the Prevention of Cruelty to Animals Act 1908 (SA) cre
ates a duty
on persons who have accepted the responsibility for the care and keeping of anim
als to
supply them with proper and sufficient food. Such duty may spring from ownership
, or may
be undertaken voluntarily by contract or otherwise. The owner is the person prim
arily
responsible and may relieve himself of his liability by procuring it to be under
taken or by
taking proper steps to have it discharged by someone else. From this liability i
s excluded a
failure, which is unavoidable owing to necessity or circumstances incapable of b
eing
foreseen by reasonable diligence. Semble, when an owner had procured an independ
ent
contractor to undertake the statutory duty of providing proper and sufficient fo
od he is under
no further statutory duty in this respect; but aliter when he has merely made a
contract which
may lead to the animals being supplied with proper and sufficient food, unless h
e had
reasonable grounds for expectation that they would be so supplied. A stockowner
is,
generally speaking, entitled to rely on the good faith and judgment of the agist
or, and, in the
absence of circumstances which ought to create suspicion, is not guilty of negli
gence because
he fails to suspect incompetence or bad faith. If a stockowner is induced by the
representations of an agistor to believe, and might reasonably believe, that fee
d would be
proper and sufficient, he is not guilty of negligence. Held, in the circumstance
s of the case,
that the appellant had misled the agistor by not informing him of the condition
of the horses
to be agisted and, accordingly, he was not entitled to rely on the agistor's jud
gment whether
the feed on the place of agistment was proper and sufficient.
BACKHOUSE V JUDD [1925] SASR 16 (SA Sup Ct, Napier J).
146. Who liable Animal dying of starvation after sale Liability of seller .
] The
defendant was convicted under the Cruelty to Animals Act 1850 (NSW) of ill-using
a calf by
neglecting to provide it with proper sustenance. It appeared that the calf had b
een sent by
steamer to the defendant and was landed on a wharf, where it remained 17 days wi
thout food
and died of starvation. The defence was that the defendant had, immediately afte
r its being
landed, sold the calf to a butcher. Held, that as the property in the calf had p
assed from the
defendant, he was not bound to feed it and, therefore, not liable under the Act.
Per Martin CJ
Even if the property had not passed by the sale, the defendant would not be li
able under
the Act if he really believed that the property had passed and thought that the
calf was on the
wharf at the purchaser's risk.
EX PARTE FOLEY (1875) 14 SCR (NSW) 162 (NSW Sup Ct FC).
147. Who liable Person in possession or control .] Under s 4(1)(b) of the P
revention of
Cruelty to Animals Act 1908 (SA) it is an offence negligently to fail to supply
any animal
with proper and sufficient food. Held, that any person who has possession of or
control of the
animal is prima facie responsible for feeding it and cannot discharge himself fr
om that
responsibility by showing that he is not the actual owner. Held, also, on the fa
cts that the
magistrate was justified in holding that a prima facie case that the animals wer
e suffering
from starvation had been made out.
PAGE V MARTIN [1934] SASR 265 (SA Sup Ct, Napier J).
148. Obligation of person in charge Animals in poor condition .] Where catt
le are in
poor condition, although there may be ample food for animals in good condition a
vailable,
the person in charge of such cattle is placed under an obligation by s 4(1)(f) o
f the Prevention
of Cruelty to Animals Act 1901 (NSW) to provide such food as is in fact necessar
y for the
proper support of such cattle.
STIBBARD V PARK (1939) 56 WN (NSW) 48 (NSW Sup Ct, Bavin J).
149. Whether animal running at large Horse in large paddock .] On a charge
under s
4(1)(f) of the Prevention of Cruelty to Animals Act 1901 (NSW) of failure to sup
ply with
proper and sufficient food a domestic animal, to wit, a horse, which was not run
ning at large,
evidence was tendered to the magistrate that the horse was in a large paddock no
t far from
the metropolitan area and that such feed as was there was not available to it in
the condition
in which the horse then was. The defendant was convicted, the magistrate finding
as a fact
that the horse was not running at large. The defendant appealed by way of statut
ory
prohibition. Held: (1) The court is not at liberty in such an appeal to substitu
te its judgment
for that of the magistrate, whose decision must be approached as if it were the
verdict of a
jury, not to be disturbed unless there is no evidence to support it or unless it
is so much
against the weight of evidence that no reasonable man could have given such a de
cision. (2)
It was quite open to the magistrate to find as a fact that the horse was not run
ning at large.
[(1943) 61 WN (NSW) 22 affd.]
EX PARTE RANDALL; RE CHISHOLM (1943) 61 WN (NSW) 56 (NSW Sup Ct FC).
150. Reasonable care to provide food Whether defence .] The provisions of s
4(1A ) of
the Prevention of Cruelty to Animals Act 1901 (NSW), which provides that "For th
e purposes
of subsection one ... an owner or person in charge of an animal shall be deemed
to have
permitted any act or omission hereby made punishable if he shall have failed to
exercise
reasonable care and supervision in respect to the protection of the animal there
from, or failed
to take reasonable steps to prevent the unnecessary suffering of the animal", do
not apply to a
charge of failing to provide animals with proper and sufficient food laid under
s 4(1)(f) of
that Act.
SCOTT V MULHALL (1946) 64 WN (NSW) 15 (NSW Sup Ct, Maxwell J).
[23] (iv) Miscellaneous Offences
151. Keeping animal in smaller cage than prescribed Exception "in course of
conveyance" Identification of species .] Held: (1) In respect of a charge la
id under the
Prevention of Cruelty of Animals Act 1936 (SA), s 5b, evidence must be led of id
entification
of the species specified in the complaint. (2) The onus of establishing the defe
nce that the
birds were in the course of conveyance within s 5b(2) rests on the defendant. (3
) It would not
be reasonable to restrict the exemption to the period during which the birds wer
e actually
being conveyed or transported.
GILBERT V GREIG (1983) 33 SASR 448 (SA Sup Ct, Cox J).
152. Baiting What constitutes Dangling live rabbit before greyhound to arou
se blood
lust not included Tying down of live rabbit to mechanical hare so that able to
move only
its front paws and head and then moving it along on moving platform with greyhou
nds in
pursuit not included .]
RE Appeals of INGRAM (1970) 2 DCR (NSW) 259 (NSW Ct of Q Sess).
153. Omission to supply shelter Element of cruelty unnecessary .] The defen
dant was
charged under s 7 of the Protection of Animals Act 1881 (Vic) with having omitte
d to
provide proper and sufficient shelter for his cattle. The evidence showed that h
e had kept
cattle for two days without any shelter in a yard which was in a wet and muddy s
tate. Held,
that cruelty was not an element in the offence, the state of the yard was a fact
from which the
justices might conclude that shelter was required and the omission to provide an
y shelter was
an offence within the meaning of the section.
R V NEWELL: EX PARTE BRUNDELL (1887) 13 VLR 548; 9 ALT 92 (Vic Sup Ct FC).
154. Encouraging cockfighting Evidence of fighting in a "place" .] Under s
4(1)(d) of
the Prevention of Cruelty to Animals Act 1901 (NSW) it is not necessary to prove
fighting in
a place used for that purpose.
SWEENEY V HAYDON (1907) 24 WN (NSW) 134 (NSW Sup Ct, Sly AJ).
155. Hunting tame dog with hounds .] Hunting a tame dog with a pack of hounds
is
sufficient to constitute the offence of committing cruelty to animals within the
meaning of
the Police Offences Statute 1865 (Vic), ss 3 and 23.
ANDERSON V WILSON (1873) 4 AJR 153 (Vic Sup Ct FC).
[24] B. Other Matters
156. Cost of care and keep when taken from owner .] Held: (1) Section 26(8) o
f the
Prevention of Cruelty to Animals Act 1979 (NSW) does not permit an organisation
to
recover from the owner of an animal the costs which have been incurred by that o
rganisation
for the care and keep of the animal. (2) The performance of a statutory duty in
respect of
property does not, under the general law, give rise to a lien enforceable agains
t the owner for
the expense of doing so. Accordingly, the expense incurred in the care and keep
of an animal
which has been taken from its owner pursuant to s 26 of the Prevention of Cruelt
y to Animals
Act 1979, does not give rise to a lien enforceable against the owner.
DUVALL V SPRY [1982] 2 NSWLR 68 (NSW Sup Ct, Waddell J).
157. Costs of prosecution by officer of Society for Prevention of Cruelty to An
imals
Liability of officer .] The respondent, an officer of the Society for Preventi
on of Cruelty to
Animals, laid a complaint against the appellant, on which he was convicted of an
offence and
costs awarded against him. The solicitor settled the information for the respond
ent and to his
knowledge appeared for him in the Police and Supreme Courts. The society underto
ok to pay
the solicitor's costs, but there was no express agreement that the respondent sh
ould not be
liable to the solicitor for costs. The solicitor stated in evidence before the T
axing Master that
he did not look to the respondent for costs and the respondent stated that he di
d not think he
would have to pay costs, but that he would be indemnified. Held, that there was
a liability on
the respondent to pay the costs, and, as the appellant had not shown that it was
a term of
employment that the respondent should under no circumstances be bound to remuner
ate the
solicitor, the appellant was liable for the costs and order.
BACKHOUSE V JUDD [1925] SASR 395 (SA Sup Ct FC).
158. Offence by officer of Royal Society for Prevention of Cruelty to Animals
Acceptance of secret commission Failure to institute proceedings for offence
Whether
acting as a special constable .] G was charged with that being an agent within
the meaning
of the Secret Commissions Prohibition Act 1919 (NSW), he did corruptly receive a
valuable
consideration, to wit, the sum of 2, from a named person as an inducement for for
bearing to
do an act in relation to his principal's affairs, namely, that he would fail to
institute
proceedings against the named person for causing a horse to be driven whilst not
being free
from sores. The magistrate found, on admission, that G was an officer of the Roy
al Society
for the Prevention of Cruelty to Animals, and further that he was appointed a sp
ecial
constable by the Commissioner of Police in accordance with the definition of "of
ficer" under
s 3 of the Prevention of Cruelty to Animals Act 1901. Other findings of fact wer
e that G had
been appointed an inspector of the society authorizing him to act in the prevent
ion of cruelty
to animals and that G, on the date of the alleged offence, acted in the capacity
of an inspector
for the society. G was acquitted by the magistrate on the ground that the accept
ance of the
said sum as an inducement for forbearing to institute proceedings was not an act
in relation
to his principal's affairs, as G, being a special constable, was acting in pursu
ance of authority
imposed on him by law. Held, that G was not a special constable, inasmuch as: (1
) Section 3
of the Prevention of Cruelty to Animals Act 1901 conferred no authority on the
Commissioner of Police to appoint special constables. (2) There was no evidence
that G had
been appointed a special constable pursuant to Pt IV of the Police Offences Act
1901. Held,
further, that G, as an officer of the Society for Prevention of Cruelty to Anima
ls, did
corruptly receive a valuable consideration to forbear to do an act in relation t
o his principal's
affairs. Held, also, that, as the appeal succeeded on a point which was not rais
ed before the
magistrate, there should be no order for costs.
HOLE V GIBB (1943) 60 WN (NSW) 130 (NSW Sup Ct, Maxwell J).
159. Obligation to kill animals to prevent suffering Liability of bailee to b
ailor of animal
killed in such circumstances .] The plaintiff claimed 18 as damages for the wro
ngful
using and killing of a mare, which the plaintiff alleged had been lent to the de
fendant for the
defendant's use, with the promise that it would be safely kept and taken care of
. The
defendant carried on the business of a butcher at Stanthorpe, and used the mare
for the
purpose of receiving and delivering orders in connection with his business. On 1
4 February
1912, the defendant's servant was taking a bull to Wallangarra, when the bull tu
rned and
gored the mare, with the result that the entrails of the mare were protruding an
d the animal
suffered great pain. The defendant's servant obtained a gun and shot the mare. H
eld, that the
animal had been lent by the plaintiff to the defendant to be used by the defenda
nt and his
servants in and about the butchering business; the driving of the bull was part
of the
defendant's business; there had been no negligence on the part of the defendant
or his servant
to cause the mare to be gored by the bull and the animal was in such a state of
suffering that
if it had not been destroyed, the person in charge of the mare would have been l
iable under s
5 of the Animals Protection Act 1901 (Q) for forbearing to put the animal out of
suffering.
SPRINGBORG V HEYDON (1912) 6 QJP (Mag Cas) 125 (Q).
205. Approved management program Power of approval .] Held, that there was
no
power to approve a management program under s 10(1) of the Wildlife Protection
(Regulation of Exports and Imports) Act 1982 (Cth) where the program was not a p
rogram
actually being carried out at the time and was not a program which was proposed
to be, or
had been, carried out.
RE FUND FOR ANIMALS LTD and MINISTER FOR ARTS, HERITAGE &
ENVIRONMENT [NO 2] (1986) 9 ALD 622 (Cth AAT).
[25-33.5] Divn 3. Protection of Animals, Birds and Wildlife and Game Laws
[25] A. Licences and Generally
Offences concerning licences see [26-33.5].
160. Authority under statute to kill native game Whether personal licence cap
able of
being delegated .] An authority granted under the Game Act 1915 (Vic), s 31, t
o kill
native game may be exercised through an employee, or, provided the grantee retai
ns the
power to control the acts of killing, through an agent.
HARRINGTON V MCARTHUR [1922] VLR 639; 44 ALT 52; 28 ALR 321 (Vic Sup Ct,
Macfarlan J).
161. Licence to shoot kangaroos Right of holder of licence to enter on pastor
al leases .]
A licence granted under the Game Act Amendment Act 1913 (WA), s 6A, simply
authorizes the licensee to take and kill marsupials. The Game Act Amendment Act
1913
makes marsupials the property of the Crown until lawfully taken or killed and pr
ovision is
made to issue licences. The person who gets a licence is entitled, subject to it
s terms, to kill
kangaroos, but no further authority is given by the licence. It gives no right t
o the holder to
kill kangaroos except at places where he is entitled to be. He can kill them on
his own land or
on the land which is in the occupation of other people if he gets their consent.
He has no
right to kill kangaroos on land which is in the ownership or occupation of other
persons, and
if he does so he becomes a trespasser. Although the defendant had a miner's righ
t under the
Mining Act 1904, s 26, which entitled him to prospect on pastoral leases, the fa
cts showed
that he was not on the leases for the purpose of prospecting, but for the purpos
e of killing
kangaroos and selling their skins.
VAUGHAN V GOOCH (1926) 29 WALR 34 (WA Sup Ct FC).
162. Cancellation Whether duty to observe natural justice Effect of right o
f appeal
Effect of election to appeal .] Held: (1) In cancelling a licence under the pr
ovisions of the
National Parks and Wildlife Act 1974 (NSW), s 134, the Minister or the Director
is required
to observe the rules of natural justice to the extent at least of giving notice
of intention to
cancel the licence and the grounds of the intended cancellation and an opportuni
ty to answer.
(2) The existence of the right of appeal to the Minister under s 135 of the Act,
or the election
to appeal thereunder (by Kirby P) does not (save possibly for a true case of est
oppel) deprive
the party affected by the decision of his right to challenge that decision as be
ing made in
breach of the rules of natural justice; (by Samuels and Mahoney JJA) is not of i
tself
inconsistent with the requirement that the rules of natural justice be observed
by the first
instance tribunal or administrator.
ACKROYD V WHITEHOUSE (DIRECTOR OF NATIONAL PARKS & WILDLIFE
SERVICE) (1985) 2 NSWLR 239 (NSW Sup Ct CA).
206. Licence to take or kill endangered species During road construction Ob
jector
appeal against grant of licence Relevant considerations Fauna impact stateme
nt .]
Held: (1) The same tests of adequacy in relation to environmental impact stateme
nts under
the Environmental Planning and Assessment Act 1979 (NSW) should apply to fauna i
mpact
statements under the National Parks and Wildlife Act 1974. (2) Like an environme
ntal
impact statement, a fauna impact statement is not the decision but rather a tool
to be used in
the decision-making process, and may be supplemented by further information. (3)
In the
circumstances, the omission to advertise certain further information which had b
een
provided to supplement the fauna impact statement did not cause the fauna impact
statement
to be legally inadequate or otherwise fatally flaw the decision-making process,
and the
inclusion of a reasonably thorough discussion of the significant issues and like
ly faunal
consequences was not legally inadequate. (4) Under the "precautionary principle"
, if there are
threats of serious or irreversible environmental damage, lack of full scientific
certainty
should not be used as a reason for postponing measures to prevent environmental
damage;
this is not an extraneous consideration for the purposes of the National Parks a
nd Wildlife
Act, Pt 7 (Fauna). (5) A licence to take or kill endangered fauna should not, in
most
circumstances, be "general" in its coverage of endangered species, but should sp
ecify the
species which it permits to be taken. (6) The period of a licence to take or kil
l endangered
fauna should be confined, so far as reasonable, because of possible changes in t
he physical
environment and state of scientific knowledge. (7) In the present matter, a pure
ly economic
analysis of the respective alternative road routes had resulted in a failure to
include natural
values in the evaluating balance. (8) Upon examination of all of the evidence, t
he court could
not be satisfied that a licence under the National Parks and Wildlife Act, s 120
, to take or kill
endangered fauna should be granted to the council in the present matter.
LEATCH V NATIONAL PARKS & WILDLIFE SERVICE (1993) 81 LGERA 270 (NSW
Land & Environment Ct, Stein J). [Discussed in note, 11 EPLJ 432.]
207. Licence to take or kill protected fauna In course of forestry operations
Fauna
impact statement Sufficiency Factors to be taken into account Realistic ap
proach .]
Held: (1) The statutory fauna impact statement required by the National Parks
and
Wildlife Act 1974 (NSW), s 92B(2), is only one of a number of means to be used i
n
determining whether or not a general licence under s 120 of the Act to take or k
ill protected
fauna should be issued by the Director-General of National Parks and Wildlife. T
hose means
include continuing opportunities for inspection, survey and assessment, possibly
leading to
responsive changes to the conditions of the subject licence. (2) A fauna impact
statement did
include to the "fullest extent reasonably practicable" the information required
by the National
Parks and Wildlife Act, s 92D, where it satisfied legal requirements in the sens
e that it had
considered the factors specified in the Environmental Planning and Assessment Ac
t 1979, s
4A, satisfied the requirements of the National Parks and Wildlife Act, s 92D, an
d generally
provided the information requested by the Director-General. The applicant was no
t required
to do all things that were physically possible. (3) It was acceptable to allow l
ogging to take
place pursuant to a licence under the National Parks and Wildlife Act, s 120, to
take or kill
protected fauna, subject to conditions specifying the particular fauna, and taki
ng into account
the need for continuing survey research and assessment to enable the Director-Ge
neral to be
kept informed so that the conditions could be varied or the licence revoked acco
rding to the
evolving circumstances.
NICHOLLS V DIRECTOR-GENERAL OF NATIONAL PARKS & WILDLIFE (1994) 84
LGERA 397 (NSW Land & Environment Ct, Talbot J).
208. Licence to take or kill protected fauna Objector appeal against grant of
licence
Costs of appeal Special or exceptional circumstances .] Held, that the actio
n of the
State Forests of New South Wales in requesting the deletion from the licence to
take or kill
endangered species of the area, the subject of the appeal, and the director-gene
ral's prompt
action in granting the request, was similar in effect to a discontinuance as ref
erred to in the
Land and Environment Court Rules 1980 (NSW), Pt 11, r 7, and constituted special
or
exceptional circumstances justifying departure from the court's usual practice o
f not ordering
costs in class 1 and 2 merit appeals.
SOUTH EAST FORESTS CONSERVATION COUNCIL INC V NATIONAL PARKS &
WILDLIFE SERVICE (1993) 81 LGERA 288 (NSW Land & Environment Ct, Stein J).
209. Discretion to permit taking of protected fauna Duty to consider making d
eclaration
Refusal to consider due to government policy Procedural fairness in policy c
hanges .]
Held: (1) The minister has a discretionary power to remove the protection give
n to fauna
by the Wildlife Conservation Act 1950 (WA), but there is no duty cast upon him b
y s
14(2)(a) to consider whether he ought to make a declaration removing that statut
ory
protection. (2) When deciding not to consider making a declaration within s 14(2
)(a), the
minister was entitled to act on the basis of a government policy of absolute pro
tection which
was consistent with the objects and purposes of the Act. (3) The minister was no
t obliged to
observe any legal duty of procedural fairness before changing government policy
from one of
making a declaration within s 14(2)(a) for a limited period to one of total prot
ection.
WEST AUSTRALIAN FIELD & GAME ASSOCIATION V MINISTER FOR
CONSERVATION & LAND MANAGEMENT & ENVIRONMENT (1992) 8 WAR 64; sub
nom RE MINISTER FOR CONSERVATION & LAND MANAGEMENT &
ENVIRONMENT; EX PARTE WEST AUSTRALIAN FIELD & GAME ASSOCIATION
INC 78 LGERA 81; sub nom WEST AUSTRALIAN FIELD & GAME ASSOCIATION INC
V PEARCE 27 ALD 38 (WA Sup Ct FC).
210. Duty to observe procedural fairness Change in policy as to conditions
Whether
duty to observe procedural fairness Policy to refuse "skin-only" kangaroo shoo
ting licence
Relevant considerations in decision-making .] Held: (1) The adoption of a po
licy to
refuse kangaroo shooting licences subject to a "skin-only" condition under the N
ational Parks
and Wildlife Act 1974 (NSW), s 133, was not a decision that required the policy-
maker to
accord procedural fairness. (2) Policy could have no direct effect on the rights
of any person
unless and until that person made an application for a licence to be subject to
a "skin-only"
condition, and it was then that there was a duty to accord procedural fairness.
(3) In any
event the effect of the impugned decision upon the applicant was so indirect and
remote that
the applicant could not claim a right to be accorded procedural fairness. (4) Th
e maintenance
of the commercial kangaroo industry was a relevant consideration to the impugned
decision
as its existence was necessary to achieve the objects of the Act which was the c
ontrol and
maintenance of the kangaroo population.
OUTBACK LEATHER PTY LTD V DIRECTOR-GENERAL, NATIONAL PARKS &
WILDLIFE SERVICE (1996) 92 LGERA 319 (NSW Land & Environment Ct, Pearlman CJ).
[26-33.5] B. Offences
[26] (i) New South Wales
163. Carrying on business of skin dealer without licence Validity and operati
on of Act
Interference with interstate trade .] Section 105(a) of the National Parks and
Wildlife Act
1974 (NSW) provides that a person shall not exercise or carry on the business of
a skin
dealer, unless he does so under and in accordance with the authority conferred,
inter alia, (d)
by a skin dealer's licence under s 125; or (e) in so far as the act constituting
the offence forms
part of the business of a fauna dealer by a fauna dealer's licence under s 124
. A skin dealer
who lived at Charleville in Queensland and carried on business there held the ne
cessary
authorities under the Fauna Conservation Act 1974 (Q) to be in possession of kan
garoo skins
and to sell them to buyers including buyers in New South Wales, but he was not l
icensed
under s 124 or s 125 of the National Parks and Wildlife Act 1974. He sold certai
n kangaroo
skins, which he had obtained in Queensland, to a customer in New South Wales and
delivered them there. The customer was unwilling to accept them and the dealer s
old them to
another buyer. Shortly after that sale the dealer sold to the second buyer other
kangaroo skins
which he then brought from Queensland and delivered in New South Wales. It was n
ot
stipulated in either contract of sale that the skins should be brought from Quee
nsland to New
South Wales. The dealer was charged with a breach of s 105(a) of the National Pa
rks and
Wildlife Act in connection with the second consignment of skins in that he had c
arried on the
business of a skin dealer without a licence under s 124 or s 125. Held (by Barwi
ck CJ, Gibbs
and Aickin JJ (Stephen, Mason and Murphy JJ contra)), that the transaction charg
ed was part
of the interstate trade in skins; hence the sale was protected by s 92 of the Co
nstitution and
the dealer could not be convicted in respect of it of carrying on the business o
f a skin dealer
in New South Wales.
SMITH V CAPEWELL (1979) 142 CLR 509; 53 ALJR 725; 26 ALR 507 (HC).
164. Fauna protection Whether person in possession of skins bought in another
State
guilty of offence Freedom of interstate trade What constitutes protected fau
na .]
The defendant, the manager of B, was charged at Sydney under s 19(1) of the Faun
a
Protection Act 1948 that he knowingly had in his possession protected fauna, to
wit, 1,129
kangaroo skins and 189 wallaroo skins, which had been bought by C in Brisbane an
d
consigned to B in Sydney where they were to be sorted and exported overseas. The
matter
was removed into the High Court in pursuance of s 40 of the Judiciary Act 1903 (
Cth). Held,
by the whole court, that the information should be dismissed. By Dixon, Williams
, Webb,
Fullagar and Kitto JJ, on the ground that the transaction, including the possess
ion, fell within
the protection of s 92 of the Constitution. It was impossible that s 19(1) of th
e Fauna
Protection Act 1948 should make the possession of the skins an offence and it ma
ttered not
whether that result was produced by the direct operation of s 92, or by the indi
rect operation
of that section through s 19(5) of the Fauna Protection Act 1948. By McTiernan J
, on the
ground that the subject skins were not "protected fauna" within the meaning of s
19(1) of the
Fauna Protection Act 1948.
FERGUSSON V STEVENSON (1951) 84 CLR 421; 25 ALJ 510; [1951] ALR 831 (HC).
165. Possession of protected birds Whether person in possession of birds cons
igned from
another State guilty of offence Freedom of interstate trade Onus of proof .]
Upon an
application for a writ of prohibition it appeared that the applicant, B, was con
victed of
knowingly having in his possession certain protected birds contrary to s 8(1) of
the Birds and
Animals Protection Act 1918. The evidence showed that the applicant had received
consignments of such birds, including those the subject of the charge, from Quee
nsland at
different times. Section 8(5) of the Birds and Animals Protection Act provides t
hat "this
section shall be construed subject to the Commonwealth of Australia Constitution
Act and so
as not to exceed the legislative power of the State". Held, that s 8(5) of the a
bovementioned
Act renders it unnecessary to remove the cause into the High Court under the pro
visions of s
40(A) of the Judiciary Act 1903 (Cth), since s 8(1) of the Birds and Animals Pro
tection Act
as so construed did not conflict with the powers relating to interstate trade an
d commerce in
s 51(1) and s 92 of the Constitution. Held, further, that in a prosecution under
s 8(1) the onus
of showing that birds received into New South Wales from Queensland are the subj
ect of the
Commonwealth's powers relating to trade and commerce rests upon the defendant an
d, even
assuming that such onus rests upon the prosecution, there was evidence from whic
h the
magistrate could infer that, although at one time by reason of their importation
the birds may
have been a subject of Commonwealth powers of trade and commerce, they had cease
d to be
so by becoming incorporated with the mass of property in the State.
EX PARTE BEATH; RE PHILLIPSON (1932) 49 WN (NSW) 76 (NSW Sup Ct, Stephen J).
166. Possession of protected birds Exemptions Onus of proof Evidence .]
Section 8 of the Birds and Animals Protection Act 1918, which imposes a penalty
for having
a protected bird in one's possession, must be read subject to s 17, which allows
certain
exceptions from the operation of the Act. Although the onus of proving any of th
e
exemptions lies on the defendant, the defendant need not give evidence if the ne
cessary
circumstances are proved in the complainant's case.
MCKNIGHT V INGLIS (1921) 38 WN (NSW) 270 (NSW Sup Ct, Wade J).
167. Knowingly having skins in possession "Person" Liability of corporation
.]
Held, that a limited company may, under s 8 of the Birds and Animals Protection
Act 1918,
be convicted of the offence of knowingly having in its possession skins of prote
cted animals.
ALFORD V RILEY NEWMAN LTD (1934) 34 SR (NSW) 261; 51 WN 82 (NSW Sup Ct
FC).
211. Fauna protection Taking or killing of fauna Licensed logging operation
s in State
forest Protected fauna Endangered fauna .] Held: (1) The provisions of s 9
8 of the
National Parks and Wildlife Act 1974 (NSW), which provide for the offence of tak
ing or
killing protected fauna, and which are subject to exculpation where "the act con
stituting the
offence was done ... in pursuance of a duty imposed by or under any Act", give p
rotection to
duties imposed upon logging companies by relevant licences issued under the Fore
stry Act
1916 in respect of the taking or killing of protected fauna. (2) The provisions
of s 99(3) of
the National Parks and Wildlife Act relating to endangered species, which provid
e that where
the provisions of an Act or instrument under an Act "authorise or require anythi
ng to be done
that would constitute an offence ... the provisions of the section prevail", mea
n that
notwithstanding the issuing of a licence under the Forestry Act the taking of or
killing of
endangered fauna remains an offence.
[(1991) 73 LGRA 126 varied in part.]
FORESTRY COMMISSION (NSW) V CORKILL (1991) 73 LGRA 247 (NSW Sup Ct CA).
212. Fauna protection Taking or killing of fauna Offence to disturb or inju
re Mens
rea Declaration of right .] Held: (1) Sections 98 and 99 of the National Par
ks and
Wildlife Act 1974 (NSW), which make it an offence to take or kill any protected
or
endangered fauna, are not restricted to the direct and intended consequences of
conduct
constituting the taking or killing of fauna. In particular the term "disturb" in
the definition of
"take" in s 5 of the Act includes indirect action as well as direct physical inj
ury, and covers
conduct which modifies habitat in a significant fashion, thus placing the specie
s of fauna
under threat by adversely affecting essential behavioural patterns relating to f
eeding,
breeding or nesting. (2) Sections 98 and 99 are applicable to State forests admi
nistered under
the Forestry Act 1916 (NSW). (3) Section 176A of the National Parks and Wildlife
Act
extends to apprehended as well as actual breaches of ss 98 and 99 thereof. (4) P
roof of guilty
intent (mens rea) is not necessary for the purpose of establishing breach of ss
98 and 99. (5)
Sections 98 and 99 have not been impliedly repealed by Pt 5 of the Environmental
Planning
and Assessment Act 1979 (NSW). (6) The Land and Environment Court had jurisdicti
on to
make declarations of right in respect of logging operations in a State forest wh
ich it was
alleged would be likely to disturb or injure specified endangered species.
[Earlier proceedings see (1990) 71 LGRA 116.]
[Varied in part by (1991) 73 LGRA 247.]
CORKILL V FORESTRY COMMISSION (NSW) (1991) 73 LGRA 126 (NSW Land &
Environment Ct, Stein J).
[27] (ii) Victoria
168. Killing game on proclaimed sanctuary Ignorance of nature of area Wheth
er
defence .] The defendant was charged, under s 5(2) of the Game Act 1928, with
killing
game on a proclaimed sanctuary. Held, that as the defendant had no belief as to
the nature of
the property upon which he was shooting, his ignorance of the fact that it was a
declared
sanctuary was no defence to the charge.
GREEN V SERGEANT [1951] VLR 500; [1952] ALR 25 (Vic Sup Ct, Martin J).
169. Possession of game in close season Game killed in open season No condi
tions
proclaimed .] It is not an offence under the Game Act 1890, s 7, and the Game
Act 1912, s
3, to keep in possession, during the period extending from the expiration of the
ten days
following commencement of the close season to the end of such season, native gam
e killed
in the open season, although the Governor in Council may not by proclamation hav
e directed
the conditions and restrictions subject to which native game may be kept in poss
ession
during such period.
CLIFT V LUCAS [1913] VLR 551; 35 ALT 115; 19 ALR 508 (Vic Sup Ct, Hodges J).
170. Sale of native game Defences available Onus of proof Game lawfully
acquired in South Australia and purchased for resale in Victoria .] The defend
ant was
charged with having sold in Victoria a kookaburra and a magpie contrary to s 9(2
) of the
Game Act 1958 which prohibits, inter alia, the sale of certain native game, incl
uding
kookaburras and magpies. Section 41 provides that "Nothing in this Act shall ext
end or be
construed to extend to any person being the owner of any game or native game hav
ing in his
possession any such game or native game in confinement or in a domesticated stat
e, provided
such game have not been found wild or such native game have not been caught or t
aken
during the close season". The defendant led evidence that the birds the subject
of the charges
had been lawfully trapped under licence in South Australia, and had come to him
from that
State under an official permit. The charges having been dismissed, Held: (1) It
was open to
the defendant to rely on the provisions of s 41 of the Act. (2) The onus was on
the defendant
under the proviso to s 41 to establish not only that he had lawfully acquired th
e birds as he
alleged, but also that they had not been unlawfully caught or taken (whether ins
ide or outside
Victoria) during any relevant close season; but there was a presumption against
crime and,
on the evidence, the magistrate was justified in holding that the defendant, as
owner of the
birds, was entitled to the exemption afforded by s 41 and might lawfully sell th
em in
Victoria. Held, further, that s 26 of the Act was merely a "reversal of onus" se
ction and did
not of itself afford any defence to a defendant in proceedings for an offence un
der the Act.
Semble, s 92 could not be used by the defendant to defeat or escape State legisl
ation aimed at
the protection of native fauna against its capture and sale for commercial purpo
ses.
GARVEY V FILIPPINI [1961] VR 569 (Vic Sup Ct, Sholl J).
171. Prosecution Who may lay information .] The Game Act 1928 is for the be
nefit of
the public at large, and any person may lay an information for an offence agains
t its
provisions. Section 24 of that Act is merely enabling and does not limit the cla
sses of persons
who may lay information to those mentioned therein.
LYNCH V SLOAN [1959] VR 656; [1959] ALR 1172 (Vic Sup Ct, Herring CJ).
172. What constitutes "pursuit" .] An entry upon land to "seek" game is not w
ithin the
protection of s 17(6) of the Police Offences Statute 1865 as to the entry upon l
and in
"pursuit" of game.
PLIER V TRUMBLE (1873) 4 AJR 26 (Vic Sup Ct FC).
173. Lands under a goldfields licence Crown lands .] The defendant was conv
icted
under s 5 of the Game Amendment Act 1873 of having trespassed upon lands held by
the
prosecutor, under a goldfields licence, under s 49 of the Land Act 1869. Held, t
hat the
conviction was bad, inasmuch as such land was Crown land, and was excepted by th
e
provisions of s 5 of the former Act.
R V DICKENSON; EX PARTE FRANKLIN (1888) 14 VLR 732; 10 ALT 114 (Vic Sup Ct
FC).
174. Crossing land to reach other land and there search for game .] The defen
dant entered
and crossed the complainant's land to reach a lake, situated on Crown land, wher
e he
intended to shoot wild ducks. The defendant knew he was going on and intended to
go on the
complainant's land. Held, that, although he wilfully trespassed on complainant's
land, the
defendant was not then in search or pursuit of game and, therefore, could not be
convicted
under s 15 of the Game Act 1890.
MOFFATT V HASSETT [1907] VLR 515; (1907) 29 ALT 87; 13 ALR 266 (Vic Sup Ct,
Hodges J).
175. On land not being Crown land Onus of proof Honest belief of defendant
.] In a
complaint under s 15 of the Game Act 1890 it lies upon the complainant to show t
hat the
defendant was not on Crown land. If the defendant, although in fact on complaina
nt's land,
honestly believed he was on Crown land, the trespass was not wilful.
MOFFATT V HASSETT [1907] VLR 515; 29 ALT 87; 13 ALR 266 (Vic Sup Ct, Hodges J).
213. Fauna protection Regulations excluding unlicensed persons from hunting a
reas in
duck shooting season Challenge to validity of Regulations Implied constituti
onal
freedoms Public safety interests Regulations valid Wildlife (Game) (Huntin
g
Season) Regulations 1994 (Vic) .] The defendants demurred to the plaintiff's s
tatement of
claim in so far as it challenged the validity of regulations within the Wildlife
(Game)
(Hunting Season) Regulations 1994 (Vic), particularly in their application to du
ck shooting.
Regulation 5 had the effect of excluding, under penalty, any person from "any pe
rmitted
hunting area" at specified times, unless the person held a valid licence for the
hunting or
taking of game birds. Regulation 6 imposed a limit of 5 metres within which any
person was
not to approach a licensed hunter "who is hunting or taking game birds, in any p
ermitted
hunting area", excepting hunters working together. Regulation 1 stated various o
bjects of the
Regulations, including "(a) [to] ensure a greater degree of safety of persons in
hunting areas
during the open season for duck in 1994". The plaintiff was an activist, seeking
to stop
recreational duck shooting. If regs 5 and 6 were valid, he had breached them, by
entry upon a
permitted hunting area without being licensed, seeking to generate publicity for
his cause.
Held (allowing the demurrer): (1) The Regulations effectively burdened the freed
om of
persons like the plaintiff to communicate with other members of the Australian c
ommunity
on a political matter. But they did not go so far as generally to prohibit or re
gulate
communication or discussion, nor were any rights created by constitutional impli
cation such
that the Regulations had destroyed those rights. (2) The Regulations were reason
ably
appropriate and adapted to a legitimate end, namely public safety, that was comp
atible with
the relevant freedom of communication. Accordingly, they were valid. General rev
iew of
constitutionally implied freedoms under the Constitution of the Commonwealth and
(if any)
under the Constitution Act 1975 (Vic), with particular reference to their extens
ion to
non-verbal conduct. Observations by Brennan CJ and Kirby J on the practice of th
e Court in
granting leave to interveners and to amici curiae. Per Brennan CJ Ordinarily a
n indirect
and contingent affection of legal interests will not support an application for
leave to
intervene. A merely indirect affection enlivens no absolute right to intervene.
But where a
substantial affection of a person's legal interests is demonstrable (as in the c
ase of a party to
pending litigation) or likely, a precondition for the grant of leave to interven
e is satisfied.
Nothing short of such an affection of legal interests will suffice.
LEVY V VICTORIA (1997) 189 CLR 579; 71 ALJR 837; 146 ALR 248 (HC).
[28] (iii) South Australia
176. Possession of protected animals Penalty Additional fine for each anima
l .]
Held: (1) The National Parks and Wildlife Act 1971, s 60, setting a maximum pena
lty of
$1,000, is directed to the criminality of the operation as a whole. (2) Section
74 of the Act
dealing with additional penalties directs the court's attention to the nature an
d number of
each animal involved and to its numbers and chances of survival in the environme
nt from
which it was taken.
STEPHENSON V BRINE (1983) 32 SASR 161 (SA Sup Ct, Wells J).
177. Possession of animal illegally taken Allegation in complaint as proof of
illegal
taking Taking of unprotected animal without hunting permit .] Section 60 of
the
National Parks and Wildlife Act 1972 which creates the offence of having possess
ion of an
animal illegally taken or acquired, provides by sub-s (3) that in any proceeding
s under the
section an allegation in a complaint that an animal was illegally taken or acqui
red shall be
accepted as proved in the absence of proof to the contrary. Held, that sub-s (3)
is applicable
where an animal or bird charged to have been illegally taken or acquired was unp
rotected
and any illegal taking of it must have been by virtue of hunting without a permi
t contrary to s
68a of the Act.
WALKER V EVES (1976) 13 SASR 249 (SA Sup Ct, Bray CJ).
178. Possession or control of protected birds What constitutes possession or
control .]
An occupant of a house was charged before a court of summary jurisdiction, under
s 14 of
the Animals and Birds Protection Act 1919, with having in his possession or unde
r his
control certain protected birds, namely, Cape Barren geese. The evidence for the
complainant showed that 16 Cape Barren Geese had been found in the yard of the h
ouse.
Thirteen of the birds were too young to fly; three larger birds had had the feat
hers of their
wings clipped. The yard was not completely enclosed and the birds were free to w
ander at
large, as were the occupant's domestic poultry. The birds had been on and in the
vicinity of
the property for about a fortnight, and the occupant said they fed with his fowl
s. The court
held that there was no case for the defendant to answer. Held, that it was not a
n essential of
the offence that the birds should be closely confined, and if a person intending
to keep birds
in his possession or under his control takes the action necessary in the circums
tances to
ensure that they will not wander away and be lost to him, then it may be said th
at he is in
possession of them or at least that he has them under his control, and there was
therefore
evidence on which a court could find the defendant guilty.
CUNNINGHAM V KING [1964] SASR 97 (SA Sup Ct, Hogarth J).
179. Bird privately owned .] Semble, the Animals and Birds Protection Acts 19
19 and
1922 are designed to protect the specified animals and birds in a state of natur
e and do not
apply to a protected bird which is the lawful subject of private ownership.
COLLATON V BOOTHEY [1934] SASR 429 (SA Sup Ct, Napier J).
[29] (iv) Queensland
180. Bringing fauna into State without permit Freedom of interstate trade .]
Held, that
s 64(3) of the Fauna Conservation Act 1974, which purported to create an offence
in respect
of the bringing into Queensland "from outside that State" of any kind of fauna w
ithout a
permit under the Act, contravened s 92 of the Commonwealth Constitution (relatin
g to
freedom of interstate trade) as regards the movement of fauna into Queensland in
the course
of interstate trade and, not being merely regulatory, was invalid. The existence
of a discretion
under s 64 to grant and issue a permit had no application to interstate trade an
d did not save
sub-s (3) from invalidity. It was immaterial that the subjects of the transactio
n
sulphur-crested cockatoos were wild birds, as they could legally be the subjec
t of trade or
commerce.
ACKROYD V MCKECHNIE (1986) 161 CLR 60; 60 ALJR 551; 66 ALR 287 (HC).
181. Keeping fauna without licence Penalty .] The Fauna Conservation Act 19
74, s
54(1)(a), makes it an offence to keep fauna of any kind without a licence under
the Act.
Sub-s (2) provides: "A person who commits an offence against this section is lia
ble to a
penalty of not less than $50 and not more than $1,000, and in addition to a pena
lty of twice
the royalty payable on each fauna in respect of which the offence is committed".
Section 67
provides that royalty at the rates prescribed shall be payable to the Crown on p
rescribed
fauna. Held: (1) On a prosecution for breach of s 54(1)(a) the magistrate has bu
t one
discretionary power in relation to penalty, namely, power to fix the amount of t
he fine
between $50 and $1,000, and in all cases involving prescribed fauna the fine sho
uld be
supplemented by an order for "double royalty". (2) It is essential as a matter o
f fairness, if the
allegation at the hearing is to be that prescribed fauna have been kept, that th
e defendant be
given notice that that allegation is going to be made, either by using the expre
ssion
"prescribed fauna" in the complaint or by giving due notice in relation thereto.
Per curiam
It is the duty of the magistrate on a conviction to determine the number of faun
a with respect
to which it is beyond reasonable doubt that the offence was committed and to sta
te the
number.
WILKINSON V CUTMORE; EX PARTE WILKINSON [1976] Qd R 62 (Q Sup Ct FC).
182. "Taking or killing" bird in close season Form of complaint Duplicity .
] A child
was charged and convicted in the Children's Court of "taking or killing" a bird
within the
close season. The magistrate ordered the parent of the child to pay a fine and c
osts, in default
levy and distress, in default imprisonment. Held, that the child was charged wit
h a composite
offence under the Animals and Birds Act 1921 and the complaint was not bad for d
uplicity.
MALONEY V WELCH; EX PARTE WELCH [1933] QSR 217; (1933) 27 QJPR 67 (Q Sup
Ct FC).
183. Killing opossums without subsisting permit Meaning of "subsisting permit
" .]
Section 16 of the Animals and Birds Act 1921 makes it an offence for any person
to kill any
opossum unless he holds a subsisting permit as a trapper under the Act. The appe
llants, who
were husband and wife, being desirous of obtaining permits to trap opossums, cau
sed the
necessary applications to be sent to the proper officer at Rockhampton, accompan
ied by the
prescribed fees, in time to reach him before 27 July 1930, the date fixed for th
e beginning of
the open season. The officer in question had no objection to issuing a permit at
any time to
the male defendant, who had previously held one, but by reason of the large numb
er of
applications received and the consequent shortage of permit forms in his office,
he could not
have issued the permits by 27 July. Eventually, on 1 and 3 August respectively,
he issued to
the appellants permits indorsed as follows: "This permit is issued subject to th
e limitations
in, and the provisions of, the said Acts, and remains in force from 27 July 1931
, to 7
September 1931, inclusive". Before the actual issue of the permits the appellant
s had trapped
some hundreds of opossums. Held, on appeal by way of quashing order to the Full
Court, that
each of the permits was a subsisting permit within the meaning of the section an
d the
convictions must be quashed.
WILLIAMS V WARD; EX PARTE WARD [1932] QSR 48; 26 QJPR 83 (Q Sup Ct FC).
214. Taking and keeping of prescribed fauna Whether fauna "property" .] Sec
tion 54
of the Fauna Conservation Act 1974 (Q), with some exceptions, makes it an offenc
e to take
or keep prescribed fauna unless a licence or other authority under the Act is he
ld. Section 22
of the Criminal Code provides that ignorance of the law does not excuse an act o
r omission
that would otherwise constitute an offence, "but a person is not criminally resp
onsible, as for
an offence relating to property, for an act done or omitted to be done by him wi
th respect to
any property in the exercise of an honest claim of right and without intention t
o defraud".
The appellant had unsuccessfully appealed to the Full Court of the Supreme Court
of
Queensland against penalties imposed on him by a magistrate on convicting him of
offences
against s 54 of the Fauna Conservation Act in having kept plain turkeys (bustard
s) without a
licence. The appellant had argued that being an Aborigine and pursuing a particu
lar lifestyle
gave him entitlement as a claim of right to take and keep the birds. By special
leave he
further appealed to the High Court. Held, allowing the appeal in part and quashi
ng the
conviction: (1) The defence of an honest claim of right was not available, as s
22 of the
Criminal Code had no application to s 54 of the Fauna Conservation Act. Per Bren
nan J
The gist of the offences created by s 54 is the physical destruction or control
of fauna.
Infringement of the rights of the Crown is not an element of any offence created
by s 54. It is
immaterial for the purposes of s 54 whether or not fauna was the property of the
Crown in
pursuance of s 7 of the Act or otherwise. Standing alone, s 54 does not create a
n offence
relating to property. (2) The magistrate had misdirected himself in regarding th
e statutes as
obliging him to impose, in addition to a fine, double the amount of royalty paya
ble as a
mandatory, rather than as a maximum, penalty, and that misdirection suggested th
e grounds
for his proceeding to a conviction rather than to a discharge under the discreti
onary
provisions of s 657A of the Criminal Code.
[[1986] 2 Qd R 490 revd in part.]
WALDEN V HENSLER (1987) 163 CLR 561; 61 ALJR 646; 29 A Crim R 85; 75 ALR 173
(HC). [Discussed in article, 9 QL 180; and in note, 29 ALB 14.]
215. Wilfully killing animal capable of being stolen Mens rea "Wilfully" .]
Held,
that the offence of "wilfully" killing any animal capable of being stolen under
the Criminal
Code (Q), s 468, requires proof not only that the act in question was done delib
erately, but
also that in doing it the accused was aware that the ensuing result was a likely
consequence
of the act and that he nevertheless acted recklessly in disregard of that risk.
Proof of a
subjective state of mind is required.
R V SCULLIN (1994) 76 A Crim R 15 (Q Sup Ct CA).
216. Seizure and forfeiture of animals Ministerial order Natural justice .]
Held: (1)
The power of the minister under s 11(4) of the Animals Protection Act 1925 (Q) t
o order "in
his absolute discretion" that any animal lawfully detained shall be forfeited to
the Crown
notwithstanding that no person is proceeded against for, or is convicted of, an
offence against
the Act, is exercisable only in accordance with the principles of natural justic
e, subject only
to a possible exception in the case of genuine emergency. In cases where it is p
ossible for the
minister to do so he should provide an opportunity for the owner to be heard. (2
) The court
may determine whether a particular forfeiture was greater than the emergency war
ranted and
therefore in excess of power.
HODGENS V GUNN; EX PARTE HODGENS [1990] 1 Qd R 1; (1989) 68 LGRA 395; 18
ALD 536 (Q Sup Ct FC).
217. Fauna conservation legislation Speleological society seeking to restrain
infringement Locus standi .]
CENTRAL QUEENSLAND SPELEOLOGICAL SOCIETY INC V CENTRAL
QUEENSLAND CEMENT PTY LTD [NO 1] [1989] 2 Qd R 512 (Q Sup Ct FC). [Discussed
in articles, 8 AMPLA Bulletin 35, 102.]
[30] (v) Western Australia
184. Killing kangaroos within prohibited area Portions of carcases used for f
ood
Intention of defendant .] The Game Acts Amendment Act 1900, authorizing the ki
lling for
food only of kangaroos otherwise protected by the Game Act 1892 and amendments,
does
not sanction the indiscriminate killing of kangaroos for sport, even although th
e game so
killed may be afterwards consumed or distributed for consumption, and not sold o
r bartered.
R V KIRK (1905) 7 WALR 302 (WA Sup Ct FC).
185. Killing kangaroos within prohibited area No proof of proclamation of are
a .] On
the hearing of an information under the Game Act 1892 for unlawfully killing a k
angaroo
within a prohibited area, it is essential to prove the proclamation (eg, by prod
uction of the
Government Gazette containing it) defining the limits of the prohibited area. Wh
ere no such
proof was given the conviction recorded was set aside.
FAGAN V TOOVEY (1900) 2 WALR 115 (WA Sup Ct FC).
218. Matters to be established Time limit for complaint Authority to lay co
mplaint .]
Held: (1) The onus rested upon a complainant under the Wildlife Conservation A
ct 1950
(WA), s 26(3), to establish beyond reasonable doubt the authority to take procee
dings in
respect of an offence. (2) Likewise the onus was on the prosecution to prove bey
ond
reasonable doubt that the offence was within the time prescribed by the Justices
Act 1902, s
51. The computation of that time limit was governed by the Interpretation Act 19
84.
RABCZYNSKI V MORRISON [1988] WAR 71 (WA Sup Ct, Pidgeon J).
[31] (vi) Tasmania
186. Selling "any partly protected bird of any species ... or any part of any s
uch bird" Sale
of decoy duck made of head, skin, and feathers of partly protected duck Whethe
r
prohibition applicable to duck taken outside jurisdiction Loss of identity by
manufacture
.] Regulation 32(2) of the Animals and Birds Protection Regulations 1953 forbi
ds selling
"any partly protected bird of any species (except mutton birds) or any part of a
ny such bird".
The appellant sold a decoy duck made of head, skin, feathers of a partly protect
ed duck
mounted on a frame of wood and cork. Held: (1) It was unnecessary to prove where
the duck
came from if the sale was in the jurisdiction. (2) While by process of manufactu
re what was
once part of a duck could lose its nature, that had not happened with the decoy.

SCHICK V HANLON [1960] Tas SR 39 (Tas Sup Ct, Gibson J).
187. Possession of skins during close season Killing for protection of master
's crops .]
Section 21 of the Game Protection Act 1907 makes it an offence for any person to
have in his
control or possession, either on his own land or elsewhere, any kangaroo or opos
sum,
whether alive or dead, or any skin or carcase thereof during the close season, i
e, between 1
August in any year and 31 March in any succeeding year, both days inclusive; but
provides
that "nothing in this section contained shall prevent any person during the clos
e season
killing kangaroo or opossum upon his land for the bona fide protection of his ow
n crops but
the skin of any kangaroo or opossum so killed shall be the property of the Crown
". C, the
servant or agent of L, a landowner, killed opossums for the protection of L's cr
ops and the
skins were found by the police in a shed on C's premises. C was convicted at Pet
ty Sessions
for an offence against the Act. Held, on appeal, that the protection of the land
owner is not
conditional on his personally killing the opossums, but he may employ an agent o
r servant
for that purpose; lawfully killing the animals involves a lawful possession of t
he skins
temporarily notwithstanding that the skins are the property of the Crown; as C m
erely held
the skins for L the conviction was bad.
COOK V LONGMAN (1918) 14 Tas LR 68 (Tas Sup Ct, Ewing J).
188. Possession of skins during close season Statutory provisions regarding c
lose season
Construction .] On an order to review the decision of a magistrate convictin
g a
defendant for holding in his possession certain skins during the close season, i
n breach of the
Animals and Birds Protection Act 1919, Held: (1) Under the Act the proper author
ity may
lengthen or shorten the close season for any year to any extent. (2) Whenever th
ere is no
Governor in Council's order altering the period set forth in the Schedule to the
Act, then the
Schedule operates and the close season is from 1 August to 30 April in the follo
wing year.
(3) The regulation dated 19 March 1923 operated from the day it was promulgated
and not
from 1 August 1923.
BROWNE V BUTTON (1923) 19 Tas LR 52 (Tas Sup Ct, Nicholls CJ).
[32] (vii) Australian Capital Territory
189. Killing wildlife Exclusion of noxious animals Burden of proof .] The
respondent was charged with an offence under s 25(1) of the Nature Conservation
Ordinance
1980 in that he had killed an animal that was "wildlife", which term was defined
as meaning
animals that were indigenous to Australia other than noxious animals. The magist
rate found
that the prosecution had failed to establish that the animal which the responden
t was accused
of killing was not a noxious animal. The prosecution, on appeal, argued that und
er s 14 of the
Crimes Act 1914 (Cth), which applied to the Ordinance as though it were a law of
the
Commonwealth, it did not bear that burden. Held: (1) The effect of s 14 of the C
rimes Act
was that if the law creating the offence introduced as a distinct provision a ma
tter of
exception or excuse, the onus of proof of that matter should be borne by the per
son charged.
(2) If, however, the definition of liability under the law creating the offence
contained within
itself the statement of an exception or qualification, the common law principle
that the
prosecution should bear the onus of proof applied. (3) The Nature Conservation O
rdinance
prohibited the killing of wildlife, the definition of which excluded noxious ani
mals. (4) The
appellant therefore bore the onus of proving that the animal which the responden
t was
accused of killing was not a noxious animal.
BANNISTER V BOWEN (1985) 82 FLR 406; 65 ACTR 3 (ACT Sup Ct, Kelly J).
[33] (viii) Northern Territory
190. "Wild life" Protected areas .] The respondent was convicted by the Chi
ef
Stipendiary Magistrate of the Northern Territory of taking barramundi in closed
waters
contrary to s 13(2) of the Fisheries Act 1965 and of the offences of using a sho
tgun in a
protected area, Melville Island, and of killing and of having under his control
the flesh of
protected animals, namely magpie geese, contrary to ss 24(2), 29(1) respectively
of the
Territory Parks and Wildlife Conservation Act 1976. The Administrator of the Nor
thern
Territory had power under s 13 of the Fisheries Act to declare "any waters speci
fied in the
notice" to be closed against the taking of fish of a specified species. Section
5 of the Act
defined waters to include the several waters and part of the sea and seabed ther
ein
mentioned. The Administrator had by notice declared "all waters" to be closed ag
ainst the
taking of barramundi. Held (by Gibbs CJ, Mason, Wilson, Brennan and Dawson JJ):
(1) The
notice of the Administrator of the Northern Territory declaring "all waters" to
be closed
against the taking of barramundi was not too vague with respect to the waters or
part of the
sea to which it referred, and was a valid notice. (2) The term "wildlife" in s 2
6(2) of the
Territory Parks and Wildlife Conservation Act 1976 includes all living creatures
, and magpie
geese were protected animals within the meaning of s 26. (3) Section 6 of that A
ct is to be
read as if the words "so made by declaration" appeared after "Wildlife Conservat
ion and
Control Ordinance", and the words "the declaration" where first occurring therei
n must be
read as "a declaration". Melville Island was therefore a protected area.
[(1983) 67 FLR 90; 45 ALR 667 revd.]
[Earlier proceedings see (1981) 54 FLR 376; 9 NTR 21.]
DAVERN V MESSEL (1984) 155 CLR 21; 58 ALJR 321; 53 ALR 1 (HC). [Discussed in
article, 8 Crim LJ 326, and in note, 58 Law Inst J 1044.]
191. Knowledge as element of offence Inference from facts .] The appellant
had been
convicted on a charge under s 31 of the Territory Parks and Wildlife Conservatio
n Act 1976
that he had under his control parts of a protected animal, namely 387 crocodile
skins. The
skins were found in a shed on his property but the appellant denied any knowledg
e of them.
Held, allowing the appeal: (1) Accepting that knowledge on the part of the appel
lant was an
essential element of the offence, it was necessary for the court to be satisfied
beyond
reasonable doubt that the appellant had such knowledge. (2) It was not proper to
draw an
inference from the facts found by the magistrate that the appellant knew of the
crocodile
skins in his shed, having regard to the criminal onus of proof.
MCMILLAN V LYNCH (1983) 26 NTR 37; sub nom R V MCMILLAN 11 A Crim R 69 (NT
Sup Ct, Nader J).
[33.5] (ix) The Commonwealth
219. Importing specimens otherwise than in accordance with permit or authority
Penalty
Small enterprise Venture since abandoned .]
R V KLEIN (1989) 39 A Crim R 332 (NSW Ct of Cr App).
Penalty.]
The respondent was sentenced to two concurrent terms of six months' imprisonme
nt in
respect of one count of importing parrots without a permit contrary to s 22A of
the Wildlife
Protection (Regulation of Exports and Imports) Act 1982 (Cth) and one count of h
aving the
parrots in his possession contrary to s 70C(2)(d) of the Quarantine Act 1908. On
appeal,
Held, that general deterrence is a significant factor in sentencing for these of
fences, and in
view of the potential for harm to Australian wildlife and for the need to deter
those who
mastermind or participate in them, only a sentence of imprisonment was appropria
te.
SPREITZER V THE QUEEN (1991) 58 A Crim R 114 (WA Ct of Cr App).

Application for permission to import ivory tusks Whether inconsistency between
ministerial declaration and publication in Government Gazette Whether prohibit
ion on
grant of permit effective Principles of statutory interpretation Intent and
purpose of
minister Wildlife Protection (Regulation of Exports and Imports) Act 1982 (Cth
) .]
RE TWEEN and AUSTRALIAN NATIONAL PARKS & WILDLIFE SERVICE (1990) 22
ALD 101 (Cth AAT).
222. Exporting bird eggs Penalty .] The respondent was fined $3,000 in resp
ect of two
counts of being knowingly concerned in the attempted exportation of native Austr
alian bird
eggs contrary to ss 5 and 7 of the Crimes Act 1914 (Cth) and s 21(a) of the Wild
life
Protection (Regulation of Exports and Imports) Act 1982. The Director of Public
Prosecutions argued that the fine and associated forfeiture orders were inadequa
te and that a
custodial sentence should have been imposed. Held, dismissing the appeal: (1) Th
e offences
were very serious and well capable of attracting a custodial sentence. Neverthel
ess, they were
victimless in terms of human suffering, and no cruelty, transmission of disease
or risk of it
appears to have been established or made likely. In addition, it could not be sa
id that the
specimens were rare in Australia although protected by law. There was no apparen
t threat of
their extinction enhanced by the conduct of the respondent. (2) Notwithstanding
the
importance in these cases of general deterrence, the courts have more often than
not declined
to impose custodial sentences for offences of the present kind against the Wildl
ife Protection
(Regulation of Exports and Imports) Act.
DIRECTOR OF PUBLIC PROSECUTIONS (CTH) V ROBISON (1992) 62 A Crim R 374
(Vic Sup Ct FC).
[34] Divn 4. Other Matters
192. "Animals" Whether fish included Land tax exemption in respect of land
used for
primary production .] Held, that fish are not "animals" within the phrase "mai
ntenance of
animals" in para (b) of the definition of "land used for primary production" in
s 3(1) of the
Land Tax Management Act 1956.
SAFETY BEACH ESTATE PTY LTD V COMMISSIONER OF LAND TAX (NSW) (1979)
9 ATR 451; 79 ATC 4032; [1979] AEGR 71,148 (NSW Sup Ct, Rath J).
193. Blind person's right to be accompanied by guide dog Place open to "publi
c" Blind
person entitled to enter institution as employee .] Section 5 of the Guide Dog
s Act 1972
(Q) provides as follows: "(1) This section applies in respect of any place open
to or used by
the public, whether as of right or on the invitation of the occupier ... (2) Not
withstanding any
provision of any Act, regulation, ordinance or by-law, a blind person is entitle
d to be
accompanied by a guide dog into or on any place ... in respect of which this sec
tion applies".
A blind person was entitled either to work as an employee at an institution for
blind persons
with a right to be employed and for that purpose to enter on the premises of the
institution or
alternatively by virtue of his engagement as a blind worker to be on the premise
s at the
invitation of the institution. Held, that the word "public" in s 5(2) of the Act
meant the public
generally and the blind person was not one of the "public" to whom the premises
were open
and for whose use it was.
[[1976] Qd. R 18 affd.]
O'MAHONEY V HOLLAND [NO 2] [1976] Qd R 157 (Q Sup Ct FC).
223. Approved management program Power of approval .]
RE FUND FOR ANIMALS LTD and MINISTER FOR ARTS, HERITAGE &
ENVIRONMENT [NO 2] (1986) 9 ALD 622 (Cth AAT).
224. Particulars of permits granted for exporting kangaroo products Statutory
requirement to gazette names of exporters Wildlife Protection (Regulation of E
xports and
Imports) Act 1982 (Cth), s 52 .]
RE ROGERS MATHESON CLARK and AUSTRALIAN NATIONAL PARKS & WILDLIFE
SERVICE (1991) 22 ALD 706 (Cth AAT).
225. Local government powers Order regulating animals on premises Service o
f order
on "occupier" "Premises" .] Held: (1) For the purposes of the Local Governme
nt Act
1993 (NSW), s 124, the owner of premises who visited dogs on a weekly basis and
acted as if
she were in charge of the premises was the "occupier", being a person having the
charge,
management or control of the premises within the dictionary to the Act. (2) For
the purposes
of s 124.18, "premises" included yards surrounding a house.
SHANNON V LITHGOW CITY COUNCIL (1995) 88 LGERA 253 (NSW Land &
Environment Ct, Pearlman J).

Animals

Enviado por

Dados do documento

Direitos autorais

Formatos disponíveis

Compartilhar este documento

Compartilhar ou incorporar documento

Opções de compartilhamento

Você considera este documento útil?

Este conteúdo é inapropriado?

Direitos autorais:

Formatos disponíveis

Animals

Enviado por

Direitos autorais:

Formatos disponíveis

ANIMALS

[Supplemented to January, 1999]

Você também pode gostar