RSPCA: seizure of animls, damages, summary judgment and abuse process

I refer to my earlier posting and the recent BLEATS Newsletter.

In this instance, a claim was made for damages flowing from the seizure of the animals by the RSPCA.  The defendants (inspectors of the RSPCA) applied for the claim to be dismissed on the basis of summary judgment and/or abuse of process. Of particular interest, was the question of abuse of process given the history of the matter and the argument that the plaintiff had entered into a contract which was unenforceable on the grounds of public policy, together with immunity of the inspectors.

Her Honour Wilson J was found on both grounds and dismissed the claim:

[4] Rule 293 of the UCPR provides –

“293 Summary judgment for defendant

(1) A defendant may, at any time after filing a notice of intention to defend, apply to the court under this part for judgment against a plaintiff.

(2) If the court is satisfied—

(a) the plaintiff has no real prospect of succeeding on all or a part of the plaintiff’s claim; and

(b) there is no need for a trial of the claim or the part of the claim; the court may give judgment for the defendant against the plaintiff for all or the part of the plaintiff’s claim and may make any other order the court considers appropriate.” [Emphasis added]

[5] Rule 293 is to be construed by applying the words used in it, rather than by applying a test under earlier rules.[1] Like r 292, which is concerned with a summary judgment application made by a plaintiff, r 293 uses the criterion of “no real prospect” of success. A real prospect may be contrasted with one that is only fanciful.[2] Recently, Muir JA with whom Holmes JA agreed, said of r 292[3]

“In Rich v CGU Insurance Ltd,[4] Gleeson CJ, McHugh and Gummow CJ cited with approval the following passage from the reasons of Gaudron, McHugh, Gummow and Hayne JJ in Agar v Hyde:[5]

‘Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.’

In this case, whilst the primary judge dealt with the matter carefully and skilfully, if I may respectfully say so, the range and complexity of the issues before him and the existence of factual disputes rendered the granting of summary judgment overly bold.”

What his Honour said is in principle equally applicable to a defendant’s application under r 293.

Abuse of process

[27] On this application for summary judgment, the defendants bear the ultimate onus of persuading the Court that the plaintiff has no real prospect of succeeding on all or part of her claim and that there is no need for a trial. However, as the defendants swore that the plaintiff told them she hid the four dogs from the RSPCA and led evidence that 104 dogs were seized but that only 100 dogs were admitted into the animal shelter, there was an evidentiary onus on the plaintiff to establish that the four dogs were not on her premises and among those seized on 9 January 2008.

[28] In the Magistrates Court the plaintiff gave evidence that that the four dogs in question were not seized in the raid on 9 January 2008; she said that they had been “out west” for breeding, and that they were returned to her on 10 January 2008. She did not call anyone with whom she said the dogs had been “out west”. The Magistrate expressly rejected her evidence on this point, describing it as “intended to deceive the Court”.

[29] The plaintiff makes a similar assertion in this proceeding. Again, she has not led evidence from anyone “out west”. Counsel for the defendant submitted that it would be an abuse of process for her to relitigate this question of fact.

[30] The Court has inherent power to prevent an abuse of process. In Rogers v The Queen[20] Mason CJ said –

“The concept of abuse of process is not confined to cases in which the purpose of the moving party is to achieve some foreign or ulterior object, in that it is not that party’s genuine purpose to obtain the relief sought in the second proceedings. The circumstances in which abuse of process may arise are extremely varied and it would be unwise to limit those circumstances to fixed categories.[21] Likewise, it would be a mistake to treat the discussion in judgments of particular circumstances as necessarily confining the concept of abuse of process.”

And in Walton v Gardiner[22] Mason CJ, Deane and Dawson JJ said –

“The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail.[23] Again, proceedings within the jurisdiction of a court will be unjustifiably oppressive and vexatious of an objecting defendant, and will constitute an abuse of process, if that court is, in all the circumstances of the particular case, a clearly inappropriate forum to entertain them.[24] Yet again, proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings.[25] The jurisdiction of a superior court in such a case was correctly described by Lord Diplock in Hunter v Chief Constable of the West Midlands Police[26] as ‘the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people’.”

[31] It may be an abuse of process to allow a party to relitigate an issue decided between him and a third party if the subsequent proceeding was initiated to mount a collateral attack on a final decision against him made by another court of competent jurisdiction in which he had a full opportunity of contesting the decision.[27] The Court’s powers to prevent an abuse of process are to be exercised sparingly and with great caution.[28] As Giles CJ explained in Stenhouse,[29] whether there is an abuse of process depends very much on the circumstances –

“The guiding considerations are oppression and unfairness to the other party to the litigation and concern for the integrity of the system of administration of justice, and amongst the matters to which regard may be had are –

(a) the importance of the issue in and to the earlier proceedings, including whether it is an evidentiary issue or an ultimate issue;

(b) the opportunity available and taken to fully litigate the issue;

(c) the terms and finality of the finding as to the issue;

(d) the identity between the relevant issues in the two proceedings;

(e) any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceedings; all part of –

(f) the extent of the oppression and unfairness to the other party if the issue is relitigated and the impact of the relitigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and

(g) an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process.”

[32] The question was a critical one in the proceedings before the Magistrate on the appeal against the forfeiture decisions. As he correctly analysed the issues before him, he had to be satisfied that the animals were seized under the Animal Care and Protection Act 2001 (Qld) or s 146(2)(d) of the Police Powers and Responsibilities Act 2000 (Qld), and that the chief executive (or his delegate) reasonably believed it was necessary to keep the animal to prevent it from being used in committing, or becoming the subject of, an animal welfare offence.[30] The plaintiff had the opportunity to call evidence from others as to the whereabouts of the four dogs at the time of the raid, but did not do so. The Magistrate’s finding, made after the evidence of the plaintiff, Mr and Mrs Vlahos and RSPCA officers was thoroughly tested by cross-examination, was clear and unequivocal.

[33] I am satisfied that it would be an abuse of process to allow this issue of fact to be relitigated.

[34] Accordingly, in the determination of this application, I find that the four dogs were among those seized by the RSPCA on 9 January 2008 and that the plaintiff hid them from the RSPCA officers to prevent their being removed from her property

Enforceability of contract

[35] Counsel for the defendants submitted that even if the Court found that the plaintiff and the defendants made a contract in the terms alleged by the plaintiff, that contract would be void or enforceable.

[36] If a contract is deliberately made to do a prohibited act, it is unenforceable.[31] It is a rule of public policy that a contract which involves the commission of a legal wrong is illegal if entered into with the intent of committing the wrong. If only one party to the contract has the intention of committing a legal wrong, or knows that the contract will be performed in an illegal way, the contract is unenforceable by that party, and to that extent at least, also illegal by reason of public policy.[32]

[37] As the Magistrate found, the four dogs were among those lawfully seized by the RSPCA on 9 January 2008. On the plaintiff’s own evidence she entered into the contract with the defendants to prevent the RSPCA from taking the four dogs. In other words, she deliberately made the contract in order to interfere with the RSPCA’s right to possession, contrary to s 149. In the circumstances, even if there were a contract in the terms she alleges, it would be unenforceable.

Protection from liability

[38] Even if there was an enforceable contract as alleged by the plaintiff, it may well be that in handing the dogs to Inspector Stageman the defendants were “helping” him exercise a power under the Act within the meaning of s 215. If they were, they could rely on the immunity from civil liability which that section provides.

[39] I doubt that I could determine this question on the material before the Court on this application. However, because I am firmly of the view that any such contract would be unenforceable for the reasons I have already advanced, it is not necessary to consider this question further.

Disposition of summary judgment application

[40] The plaintiff has no reasonable prospects of success on her claim, and there is no need for a trial. Her claim should be dismissed.

Brisbane Barrister – David Cormack

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