What advice did Mr Hodgson give Ms Edwards?
252 Mr Hodgson's evidence concerning the advice he gave based on the instructions or information he received from Ms Edwards was as follows:
[MS CHRYSANTHOU:] And did you give my client, after hearing those things, any advice about possession of the dog?
[MR HODGSON:] Yes, I did. I essentially said that I believe that possession was nine tenths of the law and that if there was no basis for people who live in the Southern Highlands to be retaining the dog as, essentially, bailees or intermeddlers as far as the thing was concerned, and if they could obtain possession of the dog, that they should do that. And also that I considered it was appropriate at that stage to institute proceedings in the local court to try and sort out the dispute to seek a declaration about the ownership of the dog; whether or not there was a shared ownership or a sole ownership or whether there should be compensation paid for the vast sums of money that they - Ms Edwards had told me they had spent in relation to the dog which hadn't been compensated for - they hadn't been compensated for.
….
[MS CHRYSANTHOU:] Did you give her any advice about her ownership rights compared to Mr Gillespie's ownership rights given he was registered?
[MR HODGSON:] Yes, I did. I believe that she had equal rights notwithstanding that the dog may have been registered in Mr Gillespie's name having regard to what was, I believe, an oral contract between them that there was a situation of co-ownership co-possession - - -
253 While again this did not purport to be a verbatim account of what Mr Hodgson told Ms Edwards, the key elements of his advice would appear to have been: first, Ms Edwards and Mr Flavel had "equal rights" to Oscar, apparently because there was "an oral contract between them" which gave rise to a "situation of co-ownership" or "co-possession"; second, the "people in the Southern Highlands" [Mr Fidler and Ms Angeli] were bailees or "intermeddlers" who had no basis to retain the dog; third, if Ms Edwards and Mr Flavell could obtain possession of the dog, they should do that; and fourth, it would be appropriate for Ms Edwards and Mr Flavell to commence proceedings in the Local Court seeking a declaration about the ownership of the dog.
254 In cross-examination, Mr Hodgson agreed that he told Ms Edwards that "as an owner of a dog, her claim was superior to that of a mere bailee" and that, because the other owner was overseas, as a co-owner she "had in terms of priorities a superior right to the bailee". He also agreed that he told Ms Edwards that "possession is nine tenths of the law" and that "there was no reason why she shouldn't in all the circumstances take possession of the dog", but that "concurrently with that" she should "institute civil proceedings and to seek to have the dispute resolved by a court". Mr Hodgson's evidence, however, was that there was no discussion about how Ms Edwards and Mr Flavell should "go about getting possession" and that he gave no advice about that.
255 Mr Hodgson also gave the following evidence in cross-examination in respect of what was said about abandonment:
[MR SIBTAIN:] All right. Now, Ms Chrysanthou asked you a question about the topic of abandonment. Do you recall how that arose? Did you raise it or did she raise it?
[MR HODGSON:] Well, I think I may have raised it just in the whole discussion as far as the ownership was concerned at that the other co-owner seemed to have given up his rights and was leaving the dog - had left the dog with the bailees, if we can call them that.
[MR SIBTAIN:] So it was an impression that you had formed, is that right, that because - and I'm not saying this critically of you, Mr Hodgson, please understand me - it was an impression that you formed that because Mr Gillespie had gone overseas and taken the dog to his family he had abandoned it. Is that right?
[MR HODGSON:] No. Well, abandon the dog to the extent that the deal was that the dog would be with Gina Edwards and therefore, because he had given the dog to third parties that this was an abandonment of his - of the arrangement, but also, to an extent, of his co-ownership. So therefore, that's why proceedings were instituted to work out what the situation was as far as ownership of the dog was concerned.
[MR SIBTAIN:] Just let me understand that. Were you saying that he had abandoned the dog to the bailees or abandoned the dog to the applicant?
[MR HODGSON:] I didn't look at it in abandonment to either of the parties. He had full stop abandoned the dog at that stage because he wasn't fulfilling the contract, the oral contract, between Ms Edwards and himself and the dog was in the possession of third parties who, I believe, did not have the right in all the circumstances to have the dog in their possession.
[MR SIBTAIN:] Your view about abandonment was premised on the existence of an agreement of co-sharing. Is that right?
[MR HODGSON:] Yes. Well - yes. Those were my instructions.
[MR SIBTAIN:] That's what you were told?
[MR HODGSON:] Yes.
256 While that evidence was somewhat confusing and difficult to understand, the substance or effect of it appears to be that Mr Hodgson advised Ms Edwards that, in going overseas and leaving Oscar with Mr Fidler and Ms Angeli in Wingello, Mr Gillespie had somehow abandoned the arrangement of co-ownership or co-sharing, or abandoned Oscar by reason of the abandonment of that arrangement.
257 As adverted to earlier, Ms Edwards' evidence about the advice she and Mr Flavell received concerning the dispute was longwinded, muddled and confusing, if not dissembling. It is nevertheless important to set it out in full:
[MS EDWARDS:] So, anyway, the law is different state to state and Mr Hodgson explained to me - and at that point I had only just taken three courses her in law, they required me to take administrative, constitutional, and one other that escapes me, and ..... ethics. And so I - and I had just gone to a Supreme Court ceremony of some kind, but I wasn't working and I still felt completely naïve about the law and I didn't even know about the Animal Companions Act, for example, and he explained to me that for 40 years he had been dealing with people fighting over personal property in family law proceedings, and he explained to me that - and again - and again, and I - my understanding was that he had already had conversations with Anne about the situation, and Anne had relayed to Thos all of her observations and her conversations with Mark and Simona, etcetera. So he was very well-prepared by the time we met him, and he said, when he heard about the, "Keep the fucking dog", comment that Mark said to me, that we should have kept him right then and there and been done with it, because that was very clear abandonment of property, and he used the word, "Chattel", and I couldn't believe that Oscar was a chattel, and he said, "That's the law in this country", and he knew about the US and how the law was much different about who had cared for the dog was important, not the registration. We also talked about the fact that, and this was I think very important to him with regard to Atti, with Atti and Milo, that Milo - I told him that Milo was registered to - to Mark, and it had almost been three years since they broke up, and he was still registered to Mark, but he was living with Atti for three years, and - and Thos was very interested in that Atti/Milo comparison to say, "Well, the registration is not dispositive for a number of reasons", and he explained to me, and your Honour, I apologise, but in the US we do not have equity court, so he was explaining to me about equitable interest and about how someone can own/register a car or register a piece of property, but if you spend a lot of time and energy and money and - that you have an interest, and Ken and I had always assumed, because Mark had threatened us regularly with not seeing Oscar, that he had the registration and that was the end all be all, and that he had the right to threaten us, and so we were always sort of cowered. But after that meeting with Thos, we realised that we had rights, we had legal rights, and Thos recommended that we file a lawsuit against Mark to get a declaratory judgement, and he hoped that it would bring the matter to people sitting down and talking reasonably, and it was not something that we wanted to do, but we had tried the other way, with Mark negotiating with Ken, and that didn't work. So he said - he talked about abandonment from the 2018 point of view, and then he talked about equitable interest, and then he gave us advice that, despite that they have no rights beyond a potential bailment, not to walk onto the property and just take him, which was our inclination, and he said, "You have to contrive a way to get them to hand him over to you voluntarily through Mark". That is - that is what the advice was.
MS CHRYSANTHOU: So what was your understanding of your rights in relation to Oscar after that dinner?
[MS EDWARDS:] That we were owners legally.
[MS CHRYSANTHOU:] And did you contrive a way to get him?
[MS EDWARDS:] Yes.
258 It is extremely difficult to make any sense of that evidence. The crux of it, however, was that, according to Ms Edwards, Mr Hodgson advised that: first, Ms Edwards and Mr Flavell had rights in relation to Oscar because they were "owners legally" and Mr Gillespie's registration as owner was not "dispositive"; second, Mr Fidler and Ms Angeli (though Mr Hodgson did not name them) had "no rights beyond a potential bailment"; third, while Ms Edwards and Mr Flavell should not just "walk onto the [Southern Highlands] property and just take him [Oscar]", they should "contrive a way to get them to hand him [Oscar] over" to them "voluntarily through Mark [Gillespie]". Ms Edwards also claimed that Mr Hodgson gave some advice based on abandonment, though that appeared to relate to the fact that he had been told that Mr Gillespie had at some stage said "keep the fucking dog".
259 It was put to Ms Edwards in cross-examination that Mr Hodgson did not give her any advice about the means of obtaining possession of the dog. Ms Edwards maintained that Mr Hodgson did give her advice in that regard. She also gave the following evidence on that topic during cross-examination:
MR SIBTAIN: You knew that you hadn't received any advice from Mr Hodgson to tell a lie, didn't you?
[MS EDWARDS:] No. I disagree with that.
[MR SIBTAIN:] So is your evidence that Mr Hodgson had told you it was okay to tell a lie?
[MS EDWARDS:] The evidence I gave is the best recollection of the conversation I had with him and Ken, which was we could not walk onto the property and take him, but we had to contrive a way in which they would hand him over voluntarily.
[MR SIBTAIN:] He didn't - - -?
[MS EDWARDS:] And that's what we did.
[MR SIBTAIN:] He didn't tell you to contrive a way that involved a lie, did he?
[MS EDWARDS:] I don't remember the depth of our discussion but I do know that there were several people who were aware and who we discussed with how to do this. I cannot tell you for certain whether we told Mr Hodgson before or on the morning of - we went to get Oscar.
260 Ms Roach was not asked any questions, either in her evidence in chief or in cross-examination, about the advice that Mr Hodgson gave to Ms Edwards and Mr Flavell during the dinner.
261 Mr Flavell's evidence in chief concerning the advice given by Mr Hodgson during the dinner was that Mr Hodgson "explained that we [he and Ms Edwards] had rights to Oscar and that the family members in Wingello were subservient to those rights". As noted earlier, Mr Flavell's evidence also appeared to be that Mr Hodgson advised that because Mr Gillespie was no longer in the country "he had abandoned his property" and that his and Ms Edwards' "claim" in respect of Oscar was a "valid claim". Mr Flavell also said that Mr Hodgson advised that the fact that Mr Gillespie was the registered owner did not make him the "sole claimant to Oscar".
262 Mr Flavell's evidence concerning Mr Hodgson's advice was not significantly challenged in cross-examination.
263 Like the evidence concerning what Mr Hodgson was told by Ms Edwards during the dinner at the Thai restaurant, the evidence concerning the precise terms of the advice given by Mr Hodgson at that meeting was somewhat unsatisfactory. My view, once again, is that the most cohesive and persuasive account of his advice was given by Mr Hodgson. To the extent that there was any material conflict between Mr Hodgson's evidence in that regard and the evidence of the other witnesses, I would prefer and accept Mr Hodgson's evidence.
264 Importantly, while I accept that Mr Hodgson advised Ms Edwards and Mr Flavell that there was no reason why they should not take possession of the dog, I reject Ms Edwards' evidence that Mr Hodson gave her and Mr Flavell advice about how they could go about obtaining possession. Specifically, I reject Ms Edwards' evidence that Mr Hodgson advised her and Mr Flavell that they should "contrive" a way to get Mr Fidler and Ms Angeli to give them possession of Oscar, or worse still, that he indicated that she could or should tell a lie to obtain possession. Ms Edwards' evidence to that effect was plainly self-serving and lacked credibility. It also reflects poorly on her credibility. Mr Hodgson effectively denied that he gave any such advice and I consider it to be quite implausible that he did so. Ms Edwards' evidence in this respect was also not supported by Mr Flavell's evidence.