Prevention of Cruelty to Animals Act 1920 (WA), s 4(1)(a), s 21

Appeal allowed, but only to set aside consequential order disqualifying

Christie v Bruce [1962] VicRp 91; [1962] VR 654

Cunningham v Sparrow [1924] SASR 17

Garrick v Silcock [1968] NZLR 595

Martin v Carpenter [1925] SASR 421

Martin v Gibson [1954] SASR 29

Osborne & Co v Anderson & Anor [1905] VicLawRp 64; [1905] VLR 427

RSPCA v Evitts [1993] SASC 3810

RSPCA v Streeter & Whitley, unreported; SCt of SA (King AJ); SCGRG 1000 of 1997; 29 August 1997

1 PARKER J: This is an appeal by leave from the decision of Mr D N Jones SM given in the Court of Petty Sessions at Midland on 26 June 2001 convicting the appellant on two complaints.

2 The complaints concerned ten horses kept by the appellant at two separate properties, five being kept at a Middle Swan property and the other five at a Herne Hill property. The substance of the complaints were to the same effect. Each alleged that between 28 March and 15 September 2000 the defendant had ill-treated five horses by failing to exercise reasonable care and supervision and failing to take reasonable steps to prevent the unnecessary suffering of the horses, contrary to s 4(1)(a) of the Prevention of Cruelty to Animals Act 1920 (WA).

3 The respondent to this appeal was the complainant in each case. She is an Inspector of the Royal Society for the Protection of Cruelty to Animals ("RSPCA").

4 In respect of the conviction on the complaint concerning the five horses at the Middle Swan property the appellant, who had been previously convicted of a similar offence, was fined $2,000 and ordered to pay costs of $1,043.30. In respect of the conviction concerning the five horses at the Herne Hill property the appellant was fined $1,000 and ordered to pay costs of $57.90. In addition, it was ordered by the learned Magistrate that the appellant be prohibited from owning horses for a period of two years and that the one horse of the appellant, of the ten the subject of the complaints, remaining in the appellant's possession at the date of the sentencing, be delivered to the RSPCA for disposal. There was a stay of that last order for 21 days to enable the appellant to consider an appeal.

5 Leave to amend the grounds of appeal was given at the hearing. As amended the grounds of appeal are:

"1. The facts alleged in the Complaints do not constitute an offence against s 4(1)(a) of the Prevention of Cruelty to Animals Act, as alleged in the Complaints.

2. There was no professional, veterinary or other expert evidence that any of the horses the subject of the Complaints were ill-treated or suffering in any way by reason of the actions of the Appellant or at all.

3. The Learned Magistrate was not empowered to order that the Appellant be prohibited from owning horses in the future."

6 As far as the papers before me reveal the hearing of the two complaints commenced before the learned Magistrate on 12 January 2001, and was continued on 12 March, 7 May and 8 May 2001, when decision was reserved in respect of both complaints. The complaints were heard together. They were called on for a formal mention on 15 May 2001 but adjourned further to 22 May 2001 when, after dealing with an application by the appellant to re-open his case, the learned Magistrate delivered his reserved decision. Final orders were made and the penalties were imposed on 26 June 2001.

7 During the hearing the appellant conducted his own defence save that on 22 May and 26 June 2001 he was represented by Mr Kyle, who also appeared before me. The reason for Mr Kyle being retained at that stage of the proceedings before the learned Magistrate is apparent from the transcript. In the course of giving evidence in his own defence the appellant had tendered into evidence on 8 May 2001 a video recording he had made of the horses. It was his initial evidence that this video recording had been made in October 2000, ie in the month following the period alleged in the complaints. However, a date recorded by the video camera on the film itself indicated 11 March 2001. When questioned by the learned Magistrate about this rather critical discrepancy, the transcript of 8 May 2001 indicates that the appellant suggested the camera was not correctly adjusted, ie that the date recorded on the film was erroneous. The transcript of the hearing of 8 May 2001 is incomplete (apparently because of a recording failure at the time) so that I cannot determine whether this issue was pursued further that day. The hearing of the evidence and submissions was concluded on that day, however, and decision was reserved.

8 On 22 May 2001, however, Mr Kyle appeared for the appellant and sought to be allowed to recall the appellant for the indicated purpose of correcting his evidence about the date upon which the video recording of the horses had been made. It was said by counsel that since giving evidence on 8 March 2001 the appellant had realised he was mistaken in his evidence that the film had been taken the previous October, and it had in fact been filmed in March 2001, ie, in the course of the rather protracted hearing and just two months before the appellant had given evidence on 8 May 2001.

9 While all of this was indicated by counsel to the learned Magistrate on 22 May 2001, the appellant was not in fact recalled, as the Magistrate indicated he had already reached his decision and in doing so he had not made any adverse finding by virtue of the matter of the date on which the video film had been recorded by the appellant.

10 The evidence was somewhat protracted. For present purposes it is sufficient for the most part to rely on the findings of fact made by the learned Magistrate in his reserved decision which he delivered orally on 22 May 2001.

11 Neither the appellant nor any other person lived at either of the two properties the subject of the complaints, but the horses were kept on the properties throughout the period of approximately six months specified in the complaints. The respondent had visited the two properties of the appellant on about 30 occasions over the period specified in the complaints. On the occasions of her visits she found the horses, apart from one which was housed in a stable, were always tethered. The learned Magistrate accepted from the general body of evidence that it was the practice of the appellant to tether the horses on a continuous long-term basis, and to do so even though no person was resident or normally in attendance on either property. He accepted from the evidence of an RSPCA inspector, who is also a qualified veterinarian, Dr Brighton, and of another veterinarian, Dr Rosette who was also called for the complainant, that while it was not inappropriate to tether a horse on an interim basis, it was not appropriate to do so on a long-term basis. In this respect there was a considerable body of veterinary evidence as to the adverse effects on a horse if unable to exercise by virtue of continuous long-term tethering. The learned Magistrate also accepted the veterinary evidence that to leave a horse tethered in this way could endanger it in the event of it being frightened, it being the instinct of a horse to "respond to fright with flight". If tethered, it was the evidence that in such circumstances this can result in injury. Tethering also left a horse unable to seek shade or shelter and the horse could become entangled.

12 On a number of her visits the respondent found that one or more horses had come to be entangled by their tethers around trees and other obstacles. In respect of the Herne Hill property there were many such obstacles as there was old machinery, stakes and wire lying about. At the Middle Swan property there were trees, at least one large log, and sticks.

13 The Magistrate accepted, for example, that on one visit to the Middle Swan property one of the horses had become entangled by its tether around a large log, trees and sticks so that it could not move beyond two metres and could not reach water. The respondent untangled the horse but on her return the following day found it once again entangled in the same fashion.

14 At the Herne Hill property, on the same day as the first of the two visits just mentioned in respect of the Middle Swan property, the respondent found a mare entangled among poles and unable to access water. The evidence also dealt with the effects of specific injuries to tethered horses, for example caused by becoming entangled in wire.

15 On another occasion the appellant found two stallions tethered to the one picket on the Middle Swan property. These had become entangled and were "having a go at each other". Despite disentangling them, on her return the next day she found the horses as she had found them the previous day, but by this time there were apparent bite marks on the back of one of the stallions.

16 The Magistrate accepted the evidence of the respondent that at both properties the provision for water was by the use of blue plastic drums which had been cut in half. On many of the occasions when the respondent visited the two properties, not only did the respondent find horses unable to access water because their tethers had become entangled, but she also found the water containers tipped over, or, if still standing, containing little or no water. There were no fixed water troughs on either property.

17 The Magistrate also accepted the evidence of Dr Brighton that the Herne Hill property had no pasture and was fenced poorly so that it would not contain a horse. This inspector also had found a horse entangled among pipes and others tethered near old junk. There was no pasture wherever the horses were tethered, and whatever weeds had grown were eaten. While the horses looked healthy, they appeared lifeless and lethargic. It was Dr Brighton's evidence that on his visits he found that the horses could usually access the water containers "if there was water in them".

18 While his Worship noted that the evidence did not establish that the horses were not being fed, he accepted that neither the respondent nor Dr Brighton had found evidence of feed in the vicinity of the horses during their visits, apart that is from any natural growth. There was some stored feed supplement. It was the case, however, that in contrast to the Herne Hill property the Middle Swan property had good pasture.

19 The learned Magistrate accepted from the evidence that there were occasions when the appellant's tethered horses became entangled and were unable to access water, it being the veterinary evidence accepted by the Magistrate that horses need water regularly, preferring to drink many times a day. In the finding of the learned Magistrate, while the evidence did not establish that every one of the tethered horses on the two properties had either become entangled or was unable to access water, he found that horses on each property had become entangled and/or were unable to access water on particular occasions.

20 The one horse, a stallion, which was kept in a stable was confined in an area some eight by four metres. The stallion was photographed in April 2000 on which occasion its water was low with a dead bird floating in it. It was photographed again a week later when it was found to have a swelling under its throat caused by a halter which was too tight. The stallion had overgrown hooves. Dr Brighton described the floor of the stable in which the stallion was kept as very mushy with faeces and urine and absolute filthy. He had observed the halter of this animal to be too tight and starting to indent on its neck. He described this stallion as very unkempt, with overgrown hooves, a condition which can lead to splits and other problems.

21 With respect to this stabled stallion, the learned Magistrate found that the appellant had failed to exercise proper care and supervision to prevent the ill-treatment of the horse constituted in particular by the tight halter strap which had caused swelling to its neck.

22 In respect of the evidence concerning the two stallions tethered together, however, the Magistrate accepted it was unlikely that the appellant himself had deliberately tethered the horses in this way. The learned Magistrate noted that the appellant's evidence was that persons opposed to his practice of leaving his horses tethered, had interfered with the horses. The Magistrate observed, in this respect, that the appellant's practice of tethering his horses on a continuous basis without any person resident on the properties to care for and supervise them, exposed the horses to risks of interference. Having made that observation, however, no finding adverse to the applicant was made on that basis.

23 There were also tendered in evidence many photographs of the horses in question taken during the period specified in the complaints. These indicated their generally poor condition and the manner and circumstances in which they were tethered and illustrated other material aspects of the evidence.

24 For reasons which the learned Magistrate detailed, and which were all founded in the evidence, his Worship did not accept the evidence of the appellant that the horses were tended on a daily basis.

25 It was on the basis of such findings of fact, all of which were open to the learned Magistrate on the evidence, indeed it is not suggested they were not, that his Worship found each of the complaints to be established.

26 During the course of sentencing submissions, though perhaps strictly not in the course of his reasons for decision, the learned Magistrate also indicated that he had not been persuaded that the appellant had acted deliberately with cruelty towards the horses, but that he had a totally misguided view about their proper treatment.

27 It should be noted there was nothing in the evidence which justified or required the practice of tethering as followed by the appellant as a matter of choice. While there was evidence that at the Herne Hill property the fencing was defective, it was not the appellant's case in defence that the tethering was necessary because of this and it was not suggested that there was a reason why the defective fencing could not be made good. Further, there is nothing in the evidence to suggest any problem with the fencing at the Middle Swan property.

28 By s 4(1)(a) of the Prevention of Cruelty to Animals Act 1920 (WA) ("the Act") it is an offence to:

" ... ill-treat or cause or procure to be ill-treated or be a party to ill-treating any animal."

In this case each complaint alleges a breach of that provision by ill-treating the horses. The Magistrate found the complaint to be established by the evidence.

29 The ill-treatment was particularised in the complaints as"

" ... by failing to exercise reasonable care and supervision of such animals and failed to take reasonable steps to prevent the unnecessary suffering of ..." (the animals).

30 The essence of the appellant's argument is that a failure to care for and to supervise and to prevent suffering is not ill-treatment. Reference is made, in particular, to s 3(f) of the Act by which it is provided that:

"'ill-treat' includes wound, mutilate, overdrive, override, overwork, abuse, worry, torment, and torture; also knowingly overload and knowingly overcrowd, and unreasonably, wantonly, or maliciously treat."

31 The submission appears to treat s 3(f) as though it is an exhaustive definition for the purposes of the Act of the concept of "ill-treat". Yet, s 3(f) expressly stipulates, by the word "includes", that the many and varied forms of conduct set out are merely included within the meaning of "ill-treat". As a matter of language and apparent intent, s 3(f) is not intended to confine or limit what would otherwise be the meaning of "ill-treat".

32 Reference was also made to s 4(1)(h) which constitutes an offence of neglect of a dog where the owner does not exercise a dog, which is habitually chained up, at least once a day. The argument appears to proceed on the basis that s 4(1)(h) would be unnecessary if s 4(1)(a) is read more widely than s 3(f) would provide. It is not a convincing argument, however, given the extent to which the very many offences created by s 4(1) overlap in their operation, the limitation of s 4(1)(h) to doges, and its specific requirement for exercise "at least once a day".

33 As a matter of the ordinary use of language, "ill-treat" is more extensive in its comprehension of conduct than the particular forms of conduct specified in s 3(f), although there might be scope for some uncertainty whether all of those specified forms of conduct necessarily constituted ill-treatment. Section 3(f) serves to put such issues beyond question. As a matter of ordinary usage, "ill-treat" would comprehend any form of bad treatment, mal-treatment or misuse of an animal and any form of cruel or harsh behaviour or abuse towards an animal. Ill-treatment may also occur by a failure to make appropriate provision for the essential needs of a captive animal or by the use of means of captivity which involve unnecessary harmful consequences for an animal. Hence, ill-treat includes, but is not limited to, conduct within the scope of s 3(f).

34 Given the full and ordinary meaning of "ill-treat", it would appear to have been open to the learned Magistrate to be satisfied, as he was, that the offences alleged were established by the evidence in this case. In particular, the failure to take reasonable care and supervision of the animals in this case involved the practice of continuous long-term tethering of the horses, and their tethering on properties which were unsupervised and uninhabited and which, by virtue of their condition and contents, were unsuited for this practice; particularly so the Herne Hill property. As a consequence, as the veterinary evidence clearly indicated, on a long-term basis the horses were not free to exercise, or to move to graze or to obtain food unless it was within the reach of the tether. Further, by virtue of the nature of the properties and what lay in them, there was a manifest tendency for the tethers to become entangled so as to further preclude the movement of the horses, and for the horses themselves to be caught up in obstacles and suffer unnecessarily. The potential and realised consequences of this, both in the short and long term, has been set out sufficiently earlier in these reasons. The inadequate means for providing water was shown to have caused some of the horses to be without water. This unnecessary suffering had been further aggravated in some cases by entangled tethers which prevented animals reaching water containers. This long-term practice of tethering in such circumstances has been shown to have involved maltreatment and unnecessary suffering and was well capable of supporting the findings of the learned Magistrate. There has also been detailed earlier in these reasons evidence and findings concerning the one stabled stallion and this need not be repeated at this point.

35 It is not the case, therefore, that the complaints have particularised conduct which did not, or could not, constitute ill-treatment within the meaning of s 4(1)(a).

36 It does appear that the particulars in the complaints may well have been worded with a view to attracting the operation of s 4(2) of the Act which in part provides:

"(2) For the purposes of this section, an owner shall be deemed to have permitted cruelty within the meaning of this Act if he shall have failed to exercise reasonable care and supervision in respect of the protection of the animal therefrom, or fail to take reasonable steps to prevent the unnecessary suffering of the animal."

37 Two possible views of the operation and the effect of the section were argued before me. On the view which is advanced by the respondent, by virtue of the provision of s 3(a)(i) that "cruelty" includes any act or omission referred to in s 4, and the heading to s 4 itself which is "Offences of cruelty", each of the paragraphs of s 4(1), including par (a), constitute offences of cruelty to which s 4(2) is intended to apply. The proviso to s 4(2), which modifies the penalty provision in certain circumstances of cruelty, tends to lend support to this view.

38 The appellant's argument, however, draws particular attention to s 4(1)(n) which constitutes an offence against the Act for any person to "knowingly permit cruelty". Section 4(1) contains some 17 paragraphs each of which constitute an offence. Section 4(1)(a) is but one of these. Section 4(1)(n) is another. Of the 17 paragraphs, only s 4(1)(n) uses the word "cruelty". It also involves the concept of permitting cruelty. The submission for the appellant is that s 4(2) is concerned only with the offence of knowingly permitting cruelty constituted by s 4(1)(n). On this view the defined meaning of "cruelty" in s 3(a)(i) may be seen to apply only to the specific reference to "cruelty" in s 4(1)(n), and not to any of the other offences created by s 4(1) as none of these use the word "cruelty".

39 If one were to look only at s 4 of the Act in its present form, there would be much in favour of the view advanced by the appellant. Even so, that view would sit somewhat awkwardly with other provisions in the Act such as s 5 and s 21, as well as the proviso to s 4(2), all of which would be extremely circumscribed in their operation on such a view.

40 It becomes clear that this cannot be the intended operation of s 4(2), however, and the argument for the respondent becomes compelling, when the legislative history of the Act is reviewed. When the Act was first enacted in 1920 there was no definition of "cruelty" in s 3 but the inclusive definition of "ill-treat" in s 3(f) was in its present form. Section 4(1)(a) was originally enacted in its present form, as was s 4(2) including the proviso. There was no s 4(1)(n), however, nor any other provision in s 4 which referred expressly to cruelty or to permitting cruelty. Therefore, as originally enacted the only possible view, despite what to modern eyes might be thought to be some inelegance of drafting style, is that the 17 offences for which s 4(1) provided were each offences of cruelty as suggested by the marginal note. It was in respect of these offences that s 4(2) operated to deem an owner to have permitted cruelty "for the purposes of this section" in the circumstances indicated.

41 It is interesting that it was not until 1948 that the Prevention of Cruelty to Animals Act Amendment Act 1948 added s 4(1) to make it an offence of cruelty to "knowingly permit cruelty", an amendment which may be thought to have been attended with a good measure of illogicity and to have been unnecessary. That illogicity did not escape the notice of the draftsman, it appears, because by the same amending Act the definition of "cruelty" (to include any act or omission referred to in s 4) was also added. In the circumstances it appears to have been intended by this further definition to ensure that the previous operation of s 4(2) would not be circumscribed as a consequence of the addition of s 4(1)(n).

42 For these reasons it is apparent that s 4(2) was intended to apply to the offences constituted by s 4(1), including s 4(1)(a) and since 1948 s 4(1)(n), and should be so construed. There is no present need to analyse fully the scope for operation of s 4(2) in respect of each of the offences constituted by s 4(1).

43 Even so, in the particular circumstances of this case it was open to the learned Magistrate to convict the appellant on each of these complaints, without any reliance on the "deeming" operation of s 4(2), and that is the approach followed by his Worship as indicated by his Worship's reasons. The convictions did not depend, therefore, on the operation of s 4(2) even though that subsection could have been called in aid by the Magistrate.

44 I should note that I was referred to a number of decided cases from other jurisdictions by each of the parties. These dealt in various ways and contexts with the general subject of cruelty to animals. Each decision, however, turned on particular statutory provisions and definitions which differed in material respects from the Act in this case. These decisions were, therefore, of little relevance or assistance.

45 Many of the submissions, no doubt because of some of these decided cases, failed to recognise that by s 4(1)(a) of the Act an offence is committed if an animal is "ill-treated". While by definition that is said to constitute cruelty for the purposes of the Act, and while cruelty is one type of ill-treatment, it is not the case that "cruelty" is a separate or necessary element which has to be proved to establish a breach of s 4(1)(a). Hence, a number of the decided cases, which turned on statutory provisions which made cruelty an element of an offence, were not on point; an illustration of this is the decision in Ford v Wiley (1889) 23 QBD 203 which concerned an offence of "cruelly ill-treating".

46 I would observe that s 4 suffers from its drafting style which creates many different offences, even though in most cases they may be seen to overlap, and from a history of inadequately considered amendments. The result is very much a hotch potch which can only add to the difficulty of those seeking to administer the Act and for the courts that are charged with the responsibility of enforcing it. This provision would greatly benefit from repeal and re-enactment to create but one offence. That is a matter, however, which must be left to the RSPCA and the Minister.

47 For the reasons indicated the first ground of appeal fails.

48 It is next contended that there was no professional, veterinary or other expert evidence that any of the horses the subject of the complaints were ill-treated or suffered in any way by reasons of the actions of the appellant or at all.

49 What has been said in respect of ground 1 goes a long way to dispose of this ground. Once it is appreciated that the notion of ill-treatment for the purposes of s 4(1)(a) is not confined to the matters specified in s 3(f), it becomes clear that there was a body of expert, professional, veterinary evidence, some of which was expressly referred to and relied on by the learned Magistrate in his reasons for decision, which was capable of supporting the findings made and the conclusion of the learned Magistrate that the appellant had ill-treated the horses as alleged. There is no need to go over those aspects of the evidence again.

50 It should not be accepted, even so, that it was necessary as a matter of law, as the ground seems to assume, that there be professional, veterinary or other expert evidence to establish a complaint of this nature. Whether or not an animal has been ill-treated is a matter of fact. In many, perhaps most, situations the evidence necessary to establish ill-treatment may well be given by a witness or witnesses who do not have particular expert qualification, although there will no doubt continue to be cases in which expert evidence may add greater weight to other evidence. In some cases it may indeed be essential. This was hardly a case in which it could be said that professional expertise was necessary to prove the case, but the evidence which was given by veterinarians was relevant and was relied on by the learned Magistrate.

51 I would also observe that in many cases of this nature the practical expertise gained in the work of an inspector of the RSPCA may well be found to be of particular value by a Magistrate.

53 This ground is concerned with the order of the learned Magistrate that the appellant be prohibited from owning horses for a period of two years.

54 In support of this ground the appellant refers to s 21 of the Act by which a court, on the conviction of an owner of an animal of an offence of cruelty within the meaning of this Act, may deprive the person of the ownership of the animal and of any similar animals in the owner's possession. The proviso to s 21 further limits the circumstances in which that power may be used. The applicant contends this power does not extend to authorise the order made in this case and that there is no other provision in the Act which does so. There is much force to this submission.

55 "For the purposes of the Act", by s 3(a)(i) "any act or omission referred to in s 4" is included in the meaning of cruelty. For the reasons given earlier it is to be accepted, therefore, that s 21 was available in this case. After the Magistrate convicted the appellant on these complaints it was moved on behalf of the complainant that an order be made under s 21 depriving the appellant of all of the animals the subject of the complaints and all similar animals. The Magistrate was persuaded, however, by counsel for the appellant to delay sentencing for 28 days to enable the appellant to dispose of his horses, it having been indicated by counsel that the appellant intended to do so. Apart from arrangements with respect to the interim care of the horses, including the cessation of tethering, sentencing was adjourned for 28 days on that basis.

56 When the matter came before his Worship again on 26 June 2001, however, not all of the horses had been disposed of. It seems that two remained. There were also other issues raised as to what had occurred in respect of the horses during the 28 days.

57 The application was renewed for an order pursuant to s 21 to deprive the applicant of the ownership of all horses. On this occasion, however, somewhat strangely the application was extended to include not only horses, but cattle, goats and sheep. It appears this was on the basis that these were "similar" animals to horses within the meaning of s 21. Not surprisingly the Magistrate was not attracted to this submission.

58 For the appellant it was submitted to the Magistrate that, of the two horses remaining, one of them was a pony belonging to the appellant's daughter so that the appellant was not the owner. The other horse was a stallion and the appellant sought to be allowed to retain that horse. This did not find favour with the Magistrate.

59 The Magistrate then proceeded to sentence the appellant and in the course of this made an order requiring the appellant to deliver his one remaining horse to the RSPCA for disposal as contemplated by s 21, but the learned Magistrate also purported to order that the appellant be prohibited from owning horses for two years. In this last respect the learned Magistrate went beyond the power conferred by s 21 and beyond what had been sought by the complainant. It is common ground that there is no other statutory power which could authorise such an order. In the circumstances, the order that the appellant be prohibited from owning horses for a period of two years must be set aside as lacking statutory authority. That is not opposed by the respondent.

60 For the limited purpose just indicated the appeal will be allowed. The convictions and the penalties imposed, and the other orders made by the learned Magistrate, will be confirmed, save that the order prohibiting the appellant from owning horses for a period of two years will be set aside.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : DANIELE -v- WEISSENBERGER [2002] WASCA 289 (S)

Respondent to pay 20 per cent of appellant's taxed costs

Hughes v Western Australian Cricket Association [1986] FCA 382; (1986) ATPR 40-748

Permanent Building Society v Wheeler (No 2) (1993) 10 WAR 569

1 PARKER J: The appellant succeeded on appeal on a question of law, in that as a consequence of conviction the learned Magistrate purported to prohibit the appellant from owning horses for two years, there being no statutory authority for such an order. This was the subject of ground (b) of the appellant's grounds of appeal.

2 Leave to appeal had been granted to the appellant in respect of three grounds of appeal. At the commencement of the hearing of the appeal, however, the appellant abandoned what had been ground (a) and effectively substituted a further ground which became the appellant's primary case on appeal. The appellant failed on all issues except ground (b).

3 Ground (b) was a discrete issue from the other grounds. It was not opposed on appeal. It turned solely on the terms of s 21 of the Prevention of Cruelty to Animals Act 1920 and the form of order made below. It required no reference to the transcript of evidence or the exhibits for its development and no authority was in point. The issue could be, and was able to be, dealt with succinctly by both counsel on appeal.

4 By contrast the argument in respect of the other issues raised on appeal was comparatively extensive and required a deal of attention to the evidence below and some reference to authority.

5 In the circumstances, while the appellant should have his costs of the appeal insofar as they relate ground (b), I am not persuaded that the respondent should be required to meet the appellant's costs insofar as they relate to the other issues raised on appeal, or that the appellant should meet the whole or any part of the respondent's costs of the appeal.

6 In the circumstances, it would facilitate and save much time and further costs on taxation, and so benefit both parties, were I to apportion the appellant's costs of the appeal as between ground (b) and the other issues. This is necessarily an approximate exercise. In my view, an appropriate apportionment, even though it may if anything tend to favour the appellant a little, is that the respondent should pay 20 per cent of the appellant's taxed costs of the appeal.

7 I would, however, grant to the respondent an indemnity certificate pursuant to s 10 of the Suitors Fund Act 1964 in respect of the appeal. While, pursuant to reg 14 of the Suitors Fund Regulations 1965 and s 11(3)(b) of the Suitors Fund Act, the amount payable to the respondent pursuant to the certificate may not exceed $2,000, that will go some way to alleviating the costs burden on the respondent in respect of her performance of her statutory function in this appeal.

• The hearing
• The facts
• Ground 1
• Ground 2
• Ground 3
• Conclusion