Animal Liberation Ltd v Department of Environment & Conservation

Animal Liberation Ltd v National Parks and Wildlife Service [2003] NSWSC 457 Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493 CASES CITED : Bateman's Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Limited (1998) 194 CLR 247 The Commonwealth of Australia v John Fairfax & Sons Limited (1980) 147 CLR 39 Meagher, Gummow and Lehane, Equity: Doctrines and Remedies (4th ed, 2002) [21-180]

PARTIES : Animal Liberation Limited (P) Director General, Department of Environment & Conservation (D)

COUNSEL : G F Jauncey (P) N J Beaumont (D)

SOLICITORS : Self represented (P) Gordon Plath, Solicitor (D)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

1702/07 ANIMAL LIBERATION LIMITED v DIRECTOR GENERAL DEPARTMENT OF ENVIRONMENT AND CONSERVATION JUDGMENT 1 HIS HONOUR: This is an application by the plaintiff, an animal welfare organisation, to restrain a proposed operation of the aerial shooting of goats and pigs in Nattai Reserve and Wollondilly River Nature Reserve. The injunction is sought on an interlocutory basis until the hearing of the suit and is sought on the ground that the aerial shooting operation, as proposed to be carried out, is likely to involve breaches of the Prevention of Cruelty to Animals Act 1979 ("the PCAA"), which by s 5 prohibits the committing of acts of cruelty upon animals. It is suggested that acts of cruelty are likely to occur because, if the shooting is from the air, there is a risk that animals may be wounded and die a lingering death. If the shooting is from the ground, an animal which is wounded but still alive can be given a prompt coup de grace. 2 The evidence relied on is evidence of what occurred in the course of the aerial shooting of goats in the same general area in August 2006. There was evidence from neighbouring landowners that the bodies of goats shot from the air at that time wound up on their property. These were videotaped and a DVD of the relevant images was shown to the Court. The bodies of two dead goats were subject to autopsy. There is considerable disparity and uncertainty in the evidence led as to where it was exactly that the animals were shot and how the bodies wound up on the neighbouring property. It is desirable that I say as little as possible about the quality of the evidence since there may yet be a final trial of the matter upon the same or different evidence. One thing that I should say is that there is certainly a strong prima facie case that the dead goats described and pictured in the evidence were shot in the course of an aerial cull by the National Parks and Wildlife Service ("the NPWS"), although there were some denials at the time that this was so. 3 I did in Animal Liberation Ltd v National Parks and Wildlife Service [2003] NSWSC 457 grant an interlocutory injunction restraining the conduct of aerial shooting by the NPWS on Lord Howe Island until the trial of the proceedings. There are two important differences between that case and this. The first is in the quality of the evidence showing the potentiality or likelihood of cruelty to the animals in previous operations. The second is that the defendant in that case avowedly took no objection to the standing of the plaintiff to seek an injunction. 4 In the earlier proceedings there was objective and expert evidence that showed that goats shot in a previous shoot on Lord Howe Island had moved considerable distances after having been shot and had died lingering deaths. The defendant in these proceedings has submitted to me that there is no such evidence in this case, ie, no evidence of animals dying lingering deaths after the earlier shooting in this area, of which evidence has been given, so that it might be inferred that the PCAA may be breached by the infliction of unnecessary suffering on the animals. In this case the evidence of the one informative autopsy carried out led to the conclusion that that animal had been killed instantly or had died of the bullet wound almost immediately. In my view no case was made out in any realistic way that other animals had suffered unnecessarily after being shot and no other material from which I might infer there was any real risk of inflicting cruelty. 5 However, that is not the plaintiff's only problem. In this case, the issue as to its standing has been raised. The law as to standing to seek injunctive relief to enforce a public law was stated as follows by Gibbs J in Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493 at 526: "It is quite clear that an ordinary member of the public, who has no interest other than that which any member of the public has in upholding the law, has no standing to sue to prevent the violation of a public right or to enforce the performance of a public duty. There is no difference, in this respect, between the making of a declaration and the grant of an injunction. The assertion of public rights and the prevention of public wrongs by means of those remedies is the responsibility of the Attorney-General, who may proceed either ex officio or on the relation of a private individual. A private citizen who has no special interest is incapable of bringing proceedings for that purpose, unless, of course, he is permitted by statute to do so."

That the law so stated remains current appears from the decision of the High Court in Bateman's Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Limited (1998) 194 CLR 247. 6 I asked Mr Jauncey, of counsel for the plaintiff, to state the special interest which the plaintiff claimed have in order to permit it to make this application. He replied as follows: "The interest of the community that animals who do not have a voice of their own should be able to be protected through the actions of concerned citizens."

This is obviously a worthy sentiment. However, to succeed in an application for injunctive relief, a plaintiff must demonstrate standing in the fashion required by the law. 7 In relation to the standing of public interest organisations, Gibbs J said later in his judgment in the Australian Conservation Foundation case at 530 - 531: "I would not deny that a person might have a special interest in the preservation of a particular environment. However, an interest, for present purposes, does not mean a mere intellectual or emotional concern. A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails. A belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi. If that were not so, the rule requiring special interest would be meaningless. Any plaintiff who felt strongly enough to bring an action could maintain it."

By reason of the decision of the Australian Conservation Foundation case by the High Court, however worthy the sentiment or principle stated by Mr Jauncey may be, it does not constitute a special interest within the meaning of this branch of the law. 8 The principles to be applied to an application for an injunction to restrain a breach of the criminal law were stated by Mason J in The Commonwealth of Australia v John Fairfax & Sons Limited (1980) 147 CLR 39 at 49 - 50 as follows: "The issue of an injunction to restrain an actual or threatened breach of criminal law is exceptional. The right, usually regarded as that of the Attorney-General, to invoke the aid of the civil courts in enforcing the criminal law has been described as 'of comparatively modern use', one which is 'confined in practice, to cases where an offence is frequently repeated in disregard of a, usually, inadequate penalty ... or to cases of emergency' ( Gouriet v Union of Post Office Workers [1978] AC 435, at p 481, per Lord Wilberforce. See also pp 491, 497-500, 519-521)."

And see generally Meagher, Gummow and Lehane, Equity: Doctrines and Remedies (4th ed, 2002) [21-180]. It would only be in a suit brought by the Attorney General himself or on the relation of the plaintiff that an injunction could be granted. 9 From the fact alone of its lack of standing, the plaintiff must fail in this application. Even if it had standing, in my view the evidence in this case does not show a sufficient likelihood of the infliction of cruelty upon animals to justify the grant of injuncting relief. The application must therefore be dismissed. …oOo… 10 The plaintiff now requests that the summons be dismissed. I order that the summons be dismissed. 11 I order that the plaintiff pay the defendant's costs of the proceedings. **********

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