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[2014] VCC 1186
General information, not legal advice.
County Court of Victoria
2014-08-08
Mr P
Original judgment source is linked above.
1 In very summary form, this claim is one by two partners, Mr James Holdsworth ("Holdsworth") and Ms Heather Ellison ("Ellison"). Their claim is against RSPCA (Vic) Incorporated ("the RSPCA"). Essentially, the plaintiffs are claiming damages in respect of the slaughtering of a portion of their herd of stud Murray Grey cattle ("the herd") by two servants or agents of the RSPCA, Mr Jason Nicholls ("Nicholls") and Mr Mark Roberts ("Roberts"). Nicholls, an RSPCA inspector at the time, was in charge of this particular investigation by the RSPCA and the events that unfolded. The plaintiffs also claim damages in respect of a portion of their herd which they effectively allege disappeared whilst under the control of Nicholls on behalf of the RSPCA. Thus, a portion of the herd was slaughtered. Another part was recovered. The balance, allege the plaintiffs, simply disappeared whilst under the control of the RSPCA. The herd was alleged to have been carefully bred along selected lines.
2 The events in question occurred in the first half of 2003. In particular, the principal activities carried on by Nicholls and Roberts occurred on 27, 28 and 29 May of that year. Some other relevant events occurred in the preceding period and in the following days and weeks.
3 At the relevant time, the herd was agisting on property belonging to the Framlingham Aboriginal Trust at Framlingham, near Warrnambool in western Victoria ("Framlingham"). The herd had been brought there from southern New South Wales because of the very severe drought conditions which were affecting large parts of south-eastern Australia in 2001, 2002 and the first half of 2003. At Framlingham there is a substantial area of forest (some 3,000 acres) which contains some clearings, and there are three relevant cleared paddocks, totalling in area some 300 acres. On one of the paddocks are cattle yards and a race, crush and ramp. The amount of feed available at Framlingham, whether in the cleared paddocks or the forest, was an issue which received considerable attention, including the tendering of many photographs.
4 In relation to the slaughtered cattle, in essence the plaintiffs say that they were not in a condition that required them to be put down. The RSPCA disagrees, claiming that it was acting in accordance with its authority pursuant to The Prevention of Cruelty to Animals Act 1986 ("the Act"). It alleges that the cattle had effectively been abandoned, neglected and were in an emaciated condition. It alleges that it was appropriate that they be put down in order to put an end to their suffering - see Transcript (hereinafter referred to as "T") 151. A great deal of evidence, including numerous photographs, was put before me in relation to this central issue and the surrounding circumstances. Indeed, as shall be discussed, this was a very lengthy trial.
5 In relation to the missing cattle, there is no clear explanation as to where they went. What is asserted is that they disappeared whilst under the control of or in the possession of Nicholls on behalf of the RSPCA. The carcasses of those slaughtered were taken to an abattoirs, operated by Tesbury Meats Pty Ltd ("Tesbury"). Documents of Tesbury reveal the tally of carcasses that were brought there, although, in a case where there are many mysteries and disputes, even that figure is difficult to ascertain with precision. The plaintiffs, and those assisting them, have a tally of the cattle ultimately recovered from Framlingham. However the situation is viewed, there is a substantial shortfall.
6 The above is a very brief summary relating to some of the central issues in the case. There was a large amount of evidence concerning matters surrounding those central issues. Such evidence related to such things as conversations, arrangements made, movement of the herd, its condition from time-to-time and, of course, its condition as at the time that the RSPCA intervened. Greater details in relation to all of these matters will be set out when I summarise the evidence of the many witnesses and make my findings of fact.
7 Mr S Langslow of counsel with Mr P Berman of counsel appeared on behalf of the plaintiffs. Mr P Scanlon QC with Mr A Saunders of counsel appeared on behalf of the defendant. A very large number of witnesses gave evidence. An even larger number of documents, photographs and the like were tendered. Indeed, the case has to date run for some 44 sitting days. One potentially significant aspect of it has not been concluded.
8 In relation to this last-mentioned matter, it was essentially agreed after the case had advanced a considerable distance that two central issues should be determined by me prior to moving onto the third issue, should that be necessary. In short, all evidence relating to the issues of liability and, should liability be established, the number of animals which is to form the basis of the assessment of any damages has been called. Evidence concerning those matters is at an end. Closing addresses in relation to those issues have been made. At a later date, evidence and admissions concerning the quantum of damages will be heard should my findings on liability and cattle numbers warrant this. I should add that some evidence concerning the quantum of damages has already been taken from three witnesses, this being done prior to the decision being taken to divide the case in the manner described. Because the number of cattle which might form the foundation for the assessment of damages had an increasing number of variables, it was thought desirable that I conclude the evidence concerning that, rather than having to receive fresh calculations from the financial experts every time a new possibility for the relevant cattle numbers arose. It then also seemed desirable to deal with the issue of liability, as, if that issue was determined against the plaintiffs, obviously the whole issue of damages would be at an end. Accordingly, this Judgment deals with the issues of liability and, secondly, and if it should be necessary, the number of cattle that constitutes the basis for the assessment of damages.
9 Another background matter that should be mentioned is that in May 2005, the RSPCA prosecuted the plaintiffs for breaches of the Act, the case being heard at the Ballarat Magistrates' Court. The prosecution failed. The charges were dismissed. What had occurred at the Ballarat Magistrates' Court was referred to from time-to-time and parts of the transcript were placed in evidence.
10 A considerable amount of time was spent at the commencement of this trial on preliminary issues. Whilst I offered to provide written reasons in relation to my Rulings in relation to such issues, there has been no request for same. Nevertheless, I shall now deal with them briefly as they assist in casting some light upon the manner in which the claim is brought and upon the assessment of any damages in the event that the plaintiffs are successful.
11 It should be said at the outset that these proceedings were issued in 2003. To put it mildly, it is a case that has been around for a very long time. It was put on hold whilst the unsuccessful prosecution of the plaintiffs by the RSPCA took place in the Ballarat Magistrates' Court in 2005, but nevertheless it is a matter concerning which there has been great delay.
12 The plaintiff originally asked for a jury. Then, in late 2013 at a mention before me, in essence the case was fixed as a cause. There was some thought that a jury might not be available on 24 February 2014, being the date upon which the matter was fixed for hearing. Next, consent orders signed by both parties were received, these stating that the matter was going to be fixed as a jury on 24 February 2014. There was then further confusion about the payment of jury fees. On 24 February 2014, when the case was called on, the plaintiff requested that the matter proceed as a cause, whilst the RSPCA sought a jury. The RSPCA then conceded that there could be some "great force" in relation to the proposition concerning the inability of a jury to be charged with the responsibility of assessing damages - see T10. Indeed, it was conceded that the issue of damages was probably too complicated for a jury - see T23. However, the RSPCA still argued that the issue of liability should be determined by a jury. The plaintiff argued that the whole matter was too complicated for a jury and should proceed as a cause.
13 My Ruling was that the matter should proceed as a cause. The action is pleaded in negligence, trespass, breach of duty of a bailee, detinue, conversion, and some seven breaches of statutory duty, as well as the somewhat nebulous pleading of unlawful removal of cattle. Further, questions of a shifting burden of proof, particularly in relation to the issue of breach of duty of a bailee, could well have arisen. The manner in which the case was to be argued seemed to me to make it an inappropriate matter for a jury. That is in addition to any matters relating to the saving of time and expense. It was always apparent that this was going to be a very long case. Given the number of witnesses and the issues, the original estimate of 10 days seemed to me to be optimistic in the supreme, and that is how matters eventuated. Secondly, the concession by the RSPCA that the issue of damages was too complex for a jury seemed to me to put the question beyond doubt. The splitting of a case so that liability is considered by a jury and damages assessed by the judge was described by Hedigan J in Altmann v Dunning [1995] VicRp 41; [1995] 2 VR 1 as, "...a course rarely, if ever, followed in a civil jury trial". Thirdly, the probable existence of varying or shifting burdens of proof represented another reason why the case might not be appropriate for a jury.
14 In short, I determined that this was a complicated case, inappropriate for a jury, and that it should proceed as a cause. Without wishing to pull myself up by my own bootstraps, the manner in which this involved case proceeded and the duration of it seem to me to have provided some justification, however retrospective, for the decision that it should proceed as a cause.
15 As stated, any assessment of damages does not form part of this Judgment. A somewhat complicated argument concerning damages arose at the outset. This related to the fact that the proceeding was issued in 2003 before the abolition of the jurisdictional limit of $200,000 in property damage cases brought before this Court. I will not go into the details of the argument or my Ruling, which also dealt with an application to further amend the Amended Statement of Claim insofar as it related to this issue. Whilst, hopefully, this whole situation of the potential amount of damages which the plaintiffs are able to claim can be resolved, it is more appropriate that I turn to it if and when damages are being considered. As stated, argument concerning it occurred at the commencement of the case.
16 A number of other rulings were made during the conduct of this case concerning such matters as tendency evidence, admissibility, hearsay and a belated and somewhat audacious attempt to introduce a totally new defence during the closing address. This was, in essence, an attempt on behalf of the RSPCA, via its legal representatives, to avoid liability on the basis that it was not vicariously liable for the actions of Nicholls (or, for that matter, Roberts). I gave a reasonably lengthy Ruling concerning this and shall not set that out here.
17 Suffice to say, as I pointed out to Mr Scanlon who advanced this argument, it was something that had never been pleaded. It was a defence which had never been mentioned by him when he was arguing that this was in effect a simple one-issue case suitable for a jury. It was not raised by him when, before evidence commenced, I asked him what he wished to say concerning the issues. Suffice to say that I did not allow an amendment to the defence so as to allow the introduction of what I was told was a complete defence, one which had never been raised in the pleadings or during the evidence of in excess of 20 witnesses over a period in excess of 35 sitting days (and raised, without warning, during a closing address).
18 Thus, the situation remains that, if the plaintiffs succeed in making out a case based on the behaviour and activities of Nicholls, they will also have made out such a case against the RSPCA.
19 I turn now to a summary of the oral evidence given by and on behalf of the plaintiffs (including a transcript of evidence given by the late Mr Warwick Kirkland). Because some of this evidence involves the question of the number of cattle forming the basis for the evaluation of quantum, should this become necessary, necessarily there shall be reference to some pieces of evidence which, on their face, may appear to relate more to damages.
20 Because the oral evidence was so lengthy, this summary shall be directed to those matters which form the foundation for my ultimate findings of fact. In this case, there were many mysteries, theories and allusions to various plots and schemes. As shall be discussed, it was argued by the RSPCA that these effectively infected at least some of the evidence of, and on behalf of, the plaintiffs. Suffice to say for the moment that there was inadequate evidence to support much, if not all, of this speculation and I shall confine this summary of the oral evidence to matters for which at least some evidentiary base was established.
21 Mr James Holdsworth ("Holdsworth"), one of the plaintiffs in this action, has been a farmer from childhood. He has always had a lot to do with cattle and, since 1968, has been involved with stud Murray Grey animals. He entered his steers in competitions, being successful.
22 I should say at the outset that Holdsworth was both quite deaf and had been unwell. On a number of occasions he seemed to become quite confused whilst giving evidence. It would also seem to me that at times he may have exaggerated matters such as the good condition of the stock. However, on balance, I found him to be a truthful, if at times confused, witness on many factual matters. I will leave to one side some of the more speculative theories as to what could have happened, for example, to missing cattle.
23 Initially, his Murray Greys were on his farm at Westmere in western Victoria where he had lived all his life. When his late wife became ill with cancer, some of the herd were moved to a property called Uardry in southern New South Wales. Some cattle went there, some remained at Westmere.
24 Holdsworth's late wife knew Ms Heather Ellison ("Ellison"), the other plaintiff, who lived near Bairnsdale.
25 Ultimately, after the death of his wife, Holdsworth went into partnership with Ellison, a business name being registered. That business name is JA Heath Inland Holdings. Both plaintiffs supplied some Murray Grey cattle to the partnership. The land at Uardry had been leased. In 1996, the partnership purchased a property called "The Willows" at Carrathool in New South Wales. This was about an hour and 10 minutes from Griffith.
26 In 2001 and 2002 there was a drought (which continued into 2003). The plaintiffs were determined to keep their better stock. They engaged in the culling of their stock, selling those which they considered unlikely to make good cattle.
27 When the drought struck and the feed disappeared on the property at Carrathool, the plaintiffs engaged a drover to take the herd on the various stock routes in the region - the so-called "long paddock". There are a number of these routes in the Riverina area and they are run or supervised by rangers associated with local municipalities.
28 The cattle were on the "long paddock" for a period in excess of 12 months, covering something between 5 and 10 or 12 kilometres per day. At times both Holdsworth and Ellison were on the road with them. Records were kept of calves born and cattle sold at various places, such as Jerilderie. As shall be discussed, it was the practice of the plaintiffs to have an ear tag placed on one ear of the cattle, a tattoo made on the other ear, and records of this kept in a book.
29 Ultimately, the cattle came off the road and were placed on a property called "Piney Park", near Corowa, where there was a failed canola crop. Eventually, the partnership bought the property. The partnership sold some cattle and also shifted some heifers to Bairnsdale. In addition, a lot of feed was purchased for the cattle at Piney Park, together with supplements such as molasses. The cattle were also drenched and those that needed it were treated for a condition called "pink eye". Overall, the cattle at Piney Park were fit and healthy. The significance of evidence of this nature is that it is some indication of the lengths to which the plaintiffs were prepared to go to look after their cattle.
30 With water running out at Westmere, Holdsworth organised for the delivery of some. This was brought by Mr Robert Rentsch. Holdsworth enquired of Mr Rentsch as to whether there was any feed available in the Warrnambool area, and it was Mr Rentsch who apparently suggested Framlingham.
31 Accordingly, Holdsworth and Ellison inspected Framlingham, where they also met Mr Ron Beard. Mr Beard was the farm manager at Framlingham. An agreement was reached concerning agistment in certain of the paddocks and in the forest. Ellison took notes of the agreement.
32 Holdsworth stated that the feed available at Framlingham was of very good quality, compared with that which the cattle had had before. There was also good water, with three or four dams. In addition, Holdsworth and Ellison purchased in Warrnambool two, large, 1,500 gallon plastic troughs. That there was plenty of water available for the stock is not an issue. Holdsworth and Ellison bought all the material required for an electric fence, so that their cattle were confined to a discrete area, being the 300 acres of northern paddocks and the forest. At the southern end of the forest, which was not accessible to the plaintiff's cattle, were some other paddocks, some of which were farmed by Mr Len Clark. Mr Rentsch also had some cattle in that area, as did his brother-in-law, but the only Murray Greys at Framlingham were those of the partnership.
33 At the end of February 2003, a livestock carrier, Mr Craig Congram was engaged to move the herd to Framlingham. He and his drivers did this in B-doubles. Holdsworth also went to Framlingham. Because of the location of certain trees at Framlingham, the B-doubles could not be taken right into the yards. As a result of that, both cows and calves had to be jumped off a short distance from the tray at the back of the truck. Some four or five cows and a few calves were hurt as a result and had to be put down. Four bulls had also been transported, but it was not suggested that they were hurt.
34 Holdsworth finished the fencing and remained at Framlingham for approximately a fortnight to make sure that the herd had settled in, that cows were mothering up with calves, and that there were not cattle running around where they should not be.
35 By mid-May 2003, there was grass in the paddocks at the northern end of the forest, but it was short. However, there was grass which the cows could eat. The last time that Holdsworth saw the herd before the intervention of the RSPCA was on approximately 14 May. They had definitely picked up and he had no thought that any of them were in trouble. He had no reason for concern because of their general appearance.
36 Holdsworth also had left relevant telephone numbers with Ms Leanne Ryan, who, with her family, occupied a farm adjacent to Framlingham. On one occasion Ms Ryan rang Holdsworth and told him that there was a cow dead on the property. As a result, Holdsworth came to Framlingham and removed it from where it was, also calling on Ms Ryan to thank her.
37 Holdsworth was shown a document, subsequently put into evidence, which could be described as a summary of phone calls, essentially those made rather than received, as the summary was prepared from telephone bills. The records of calls made from Nicholls' mobile phone appear in the same document but in a different fashion. The only contact between Holdsworth and Ms Ryan was on 28 March 2003 and concerned the animal that was dead.
38 In the first two weeks of May various calls were made from Holdsworth's home phone at Westmere, indicating that he was there rather than in New South Wales. He would have been going to Framlingham during this period.
39 Holdsworth was then in New South Wales from approximately 22 May until Monday, 26 May. He then returned on his own to Westmere, leaving Ellison behind and apparently without a car. He was returning to Westmere in order to put his crop in.
40 Holdsworth was then taken to matters concerning the registration of stock with the Murray Grey Society. Whilst that society was based in Albury, Holdsworth had animals registered with them. However, at the time when the partnership was operating, the registration with the Society did not continue because Holdsworth and Ellison did not like the Breed Plan promoted by it and the Society had moved from Albury. In any event, it was their intention to register partnership stock when the time was right to sell them. This was something that could be done at any time and the partnership retained records to enable this to take place.
41 On the night of Tuesday, 27 May 2003, Nicholls rang Holdsworth, asking him if he was the owner of the cattle at Framlingham. Holdsworth replied that he was a part owner, the cattle belonging to JA Heath Inland Holdings. Nicholls said that he hated to see poor cattle. There was a discussion as to how many there were, and Holdsworth told him that there were 496. Other matters were discussed, including Holdsworth mentioning Mr Rentsch and also saying that he would ring Nicholls back with the telephone number of Mr Beard. Holdsworth repeated that he told Nicholls that he was a part owner of the cattle.
42 Nicholls told Holdsworth that he had to come to Framlingham, but Holdsworth stated that he could not come immediately because he had to return to Griffith to go to the bank and in order to attend to other matters. He said that he would have to go back up there, but could return on Friday afternoon (30 May). Nicholls also asked him who put the fencing up and said that there was no water. Holdsworth disagreed with this proposition. They then worked out a meeting time on the afternoon of Friday, 30 May. Nicholls wanted Holdsworth and Ellison to meet him at Framlingham. There was no mention of the fact that Nicholls had been shooting cattle that day or that there had been two veterinarians on the property conducting autopsies. Holdsworth did not understand that Nicholls would be at Framlingham the following day, but thought that he was seeing Mr Rentsch and Mr Beard about some matters. Holdsworth arranged to ring Nicholls back in order to give him the phone numbers of Messrs Beard and Rentsch.
43 Holdsworth also rang Mr Rentsch to ask him if he knew anything about someone looking at the cattle, but he knew nothing about this. Mr Rentsch said that there was nothing wrong with the feed or the cattle. He was able to obtain Mr Beard's number.
44 Holdsworth stated that he does not have numbers stored in his mobile phone memory, does not know how to get messages out of the phone and has never been able so to do. His grandsons make fun of him in that regard. When he rang Nicholls back, there was no ill feeling between them.
45 On Wednesday, 28 May, just before 6pm, Holdsworth rang Mr Rentsch essentially to enquire about the herd at Framlingham and whether Mr Rentsch had or had not seen Nicholls. At this stage Holdsworth was still at Westmere, just a little over an hour from Framlingham, but he subsequently left, driving to Carrathool where he arrived at approximately 2am on Thursday, 29 May. During Wednesday, 28 May, he had not received any phone calls of which he knew from Nicholls.
46 On Thursday, 29 May, the records would indicate that Nicholls rang Holdsworth's mobile phone at 8.25am. However, Holdsworth did not speak to Nicholls and got no message from him. The records would also indicate that Holdsworth was in Griffith at 11am and made brief calls to Mr Rentsch at 11.40am and approximately 11.50am. The records of Nicholls' phone would show that he rang Holdsworth's number at 11.51am, the duration of the call being 25 seconds. The belief is that Holdsworth was on the phone to Mr Rentsch at this time. The records show another very brief call from Holdsworth to Mr Rentsch, being for some 12 seconds at 12.12pm, and a 20 second call to Mr Beard at 12.20pm.
47 Holdsworth said that, on the morning of Thursday, 29 May, he had driven himself and Ellison from Carrathool to Griffith. During one of the calls to Mr Rentsch, he asked if Mr Rentsch had heard from Nicholls. Mr Rentsch replied that he had just "left them down the paddock. They're chasing your cattle and going to shoot them" - see T203. Holdsworth told Mr Rentsch to go back and get Nicholls to ring him. Mr Rentsch agreed that he would. When he had not heard back from Mr Rentsch, Holdsworth rang Mr Beard in order to see what had transpired. He had not received a call from Nicholls. At 12.20pm, Holdsworth again rang Mr Rentsch. Mr Rentsch said that he had been back to Framlingham, had seen Nicholls and had passed on the message, asking Nicholls to ring Holdsworth. In Griffith, Ellison had an appointment with someone from Rural Lands, whilst Holdsworth had a medical appointment in relation to his shoulder and also an appointment with the bank manager. Afterwards, they went back to Carrathool.
48 At 5pm, Holdsworth rang Nicholls. Nicholls said that he had shot 117 cows belonging to Holdsworth. Holdsworth said that he went "absolutely mad", because there had been no discussion about anything such as that happening. Nicholls told Holdsworth that, if Holdsworth did not shift the rest of the herd, he would also shoot them. Holdsworth gave evidence that he "did lose it". He referred to the meeting that was to be held on Friday, telling Nicholls that he was not a man of his word. Subsequently, Holdsworth and Ellison drove through the night to Framlingham, arriving at approximately 6.20am on Friday, 30 May. They found no dead cattle, although noticing some live cattle in the vicinity. Holdsworth also noticed that the cattle yards were in a mess, boggy, and with blood obvious. Prior to that, Holdsworth had not used the cattle yards and knew of no one else who had used them.
49 As part of the yards, there is a race and crush where cattle can walk up to the back of a truck. The race had been extensively used and, in the opinion of Holdsworth, a mat had been placed on it to stop the making of cattle footprints. This is a method used by cattle thieves. There were also tyre marks indicating that a vehicle had backed up to the race.
50 At 8.28am on Friday, 30 May, Holdsworth rang Tesbury to find out if the cattle had gone there, but was told that none of his cattle were in the meatworks. Holdsworth and Ellison then went to the Warrnambool Police Station. Despite being requested so to do, the officer who had taken over the case said that he would not go out to Framlingham, asking Holdsworth to simply come back and tell him how many cattle "he was short". During all this time, Holdsworth did not hear from Nicholls.
51 Holdsworth and Ellison then set off for Tesbury, which is located near Camperdown. When they were entering Camperdown, Nicholls rang on Holdsworth's mobile phone. However, because there was a police road block ahead and he was driving, Holdsworth had to put the phone down. He then went into a bank in Camperdown, and when he came out, his phone was again ringing. It was Nicholls, who asked him whether he was going to feed the cattle over the weekend and Holdsworth said that he would. Holdsworth also said that he would try and shift the cattle on the following Wednesday, but Nicholls said that they had to be shifted by Tuesday or he would shoot the rest of them. Holdsworth replied, "Listen, mate, you've done enough shooting" - see T211. That ended the phone call.
52 At Tesbury, Holdsworth and Ellison saw Mr John ("Roly") Rivett. They obtained some paperwork.
53 On Saturday, 31 May, Holdsworth rang Mr Laurie Higgins, a transport operator, in order to get him to come and pick up the cattle that were at Framlingham. That day, Holdsworth and Ellison went back to Framlingham, taking some hay in the back of Holdsworth's utility so as to feed the cattle that were still there. Ellison also rang her son, David, in order to get him to come and help. The idea was to muster the remaining cattle. Holdsworth went into the forest where he saw cattle tracks and noted that there was still good feed left in the forest. On Sunday, 1 June, some cattle were transported back to Westmere. On Monday, 2 June, Holdsworth was still at Framlingham with Mr David Ellison, ensuring that all the remaining cattle had been found. During this time, Holdsworth saw nothing of Nicholls, Roberts, Dr Callum Irvine (the veterinarian), or any associated persons. The only person that he saw was Mr Matthew Gapes, who arrived with some hay. Holdsworth said that the front paddocks where his cattle had been were quite capable of being grazed. After his cattle had been removed, he noted that there were other cattle in this particular area. He further stated that on Monday, 2 June, he and Mr David Ellison found three more partnership Murray Greys which were then walked a considerable distance to Mr Len Clark's paddock. They had no difficulty in doing this.
54 The cows from Framlingham remained at Westmere and were still there when Mr Richard Keys, at that time an Animal Health Officer employed by the Victorian Department of Primary Industries, made an unannounced visit at the request of Nicholls. I shall come to the evidence of Mr Keys who was, by consent, an interposed witness during the evidence-in-chief of Holdsworth.
55 In any event, Holdsworth stated that Mr Keys examined all the stock on the property, and these included the cows from Framlingham. Holdsworth further stated that, in the week following the return of the cattle from Framlingham, three or four of them were sold at Warrnambool. Again, Mr Higgins provided the transport. The cattle had to be walked a substantial distance to get to the point where they were collected by Mr Higgins.
56 After the present proceedings were commenced against the RSPCA, charges were laid against Holdsworth and Ellison by Nicholls. The civil proceedings were put to one side. Ultimately, all charges were dismissed with costs. Holdsworth repeated that the four bulls that went to Framlingham were not found in the round-up of stock which was conducted on the weekend after the relevant incidents occurred.
57 Holdsworth was then shown photographs taken by Nicholls and Roberts at Framlingham, these photographs subsequently going into evidence as Exhibit H. There was much reference to them throughout the trial. These photographs had been produced to the Magistrates' Court at Ballarat. Holdsworth was of the view that the animals in certain photographs should not have been shot. Holdsworth said that some photographs of the ground cover of the open paddocks showed that there was quite a lot of green grass upon which cattle could graze. Photographs of post-mortems performed showed stomachs that looked to be full and definitely had grass in them. All that one calf required was "a bit of a drench" - see T252. Holdsworth repeated, in relation to several of the photographs, that there was absolutely no reason to shoot the animals that could be seen.
58 Holdsworth was also shown photographs of groups of cattle, one group having red paint on them. He stated that none of these cattle should have been shot. Having been shown a photograph of the ramp at the cattle yards, he stated that, on the morning of 30 May, he saw tracks indicating that trucks had been backed up to that ramp. These were not in the position where the trucks from Tesbury had been. He stated that there were a lot of tracks in front of the ramp. Holdsworth also stated that animals suffering from pink eye can be treated by use of a spray. That condition is no justification for shooting an animal.
59 The photographs had on them what could be described as electronic dates indicating when they had been taken. Some photographs showed that the bulls were still there at the yards on 27 and 29 May. Holdsworth stated that other photographs showed cattle with heads down feeding, some showing good, lush grass. Many photographs showed cattle with their ears up, being alert, which is a sign of good health. A further photograph showed the fence, which could be opened up to allow cattle through and which divided the forest from the open paddocks. In the opinion of Holdsworth, there was feed available on each side of that fence. There was much more evidence concerning the photographs along similar lines to those already described, essentially to the effect that there was nothing about the photographed animals' condition that warranted them being shot. There was also further favourable reference to the amount of feed available, both in the paddocks and in the forest.
60 Holdsworth's attention was drawn to photograph 36 of Exhibit H, which shows a cow in the race leading to the ramp. He was of the view that a mat could be seen which was of a type that could be used to conceal the fact that cattle had been moved up the ramp.
61 In relation to his books containing records of cattle, Holdsworth claimed that these had been at the Ballarat Magistrates' Court, but that Nicholls had taken them and he, Holdsworth, did not know what subsequently happened to them. I might say that, because of Holdsworth's quite profound deafness, cross-examination of him was somewhat difficult.
62 Holdsworth stated that it was his understanding, because of evidence given at the Ballarat Magistrates' Court, that cattle with red marks on their backs photographed in the yards at Framlingham after being herded by the RSPCA did not go to Tesbury. Similarly, the cattle that were rounded up at Framlingham and went back to Westmere also had no red marks on them. Therefore, those with red marks on them must have gone to places unknown. When cross-examined about his theory concerning their disappearance, he stated that they must have gone to Tesbury or somebody must have taken them. Holdsworth repeated that the number of cattle that were delivered to Framlingham was 496, including four bulls.
63 Holdsworth said that he had no answering service on his home phone or mobile phone. As far as he knows, people either get through to him or they do not. Similarly, at least in 2003, he did not leave messages on other people's phones. In 2003 he did not have a message bank.
64 Holdsworth was then taken at some length through an examination of the photographs in Exhibit H - these being photographs taken by Nicholls and Roberts. Again, summarising this evidence is not easy, but essentially he maintained the position referred to above. Holdsworth himself had not hand fed the cows that were on agistment. He had not paid for any money for hay and did not cause a veterinarian to go to Framlingham between February and 27 May 2003. However, he understood that those from the Framlingham Trust had fed some of the cattle some hay during the period that the animals were there. During that period Holdsworth attended at least once a fortnight, recalling that he had been at Framlingham on 14 May. If Holdsworth did not go there, Ellison would.
65 In relation to the two animals that had been the subject of an autopsy. Holdsworth was aware that it had been said that the animals in question suffered from lung worm, the cause of which is drinking stagnant water. He knew of no such water on the property. He agreed that there appeared to be a dead cow photographed in some reedy water, but could not be entirely certain. He did not agree that it was stagnant water. Holdsworth also referred to faecal samples that had been taken which did not reveal lung worm in his cattle.
66 Holdsworth stated that there was a lot of feed in the forest and some in the paddocks. There was good feed in the open paddocks, but not lots of feed, as in the forest. Whilst cattle follow the feed, they would not necessarily go to the forest, but to where the sweeter feed was.
67 Holdsworth also stated that he had an arrangement with Mr Rentsch concerning handfeeding of the cattle if required, but on his fortnightly visits there was never a time when he thought that the cattle needed feed. No arrangement about paying Mr Rentsch for feed had been organised. Mr Rentsch had his own cattle in the forest (not Murray Greys) and was also keeping an eye on the partnership animals.
68 A video was shown to Mr Holdsworth and to the Court. It was put that there was a very large number of cow pats in the paddock, but Holdsworth stated that this was in a corner where the cattle camped. Holdsworth also stated that, when the cattle arrived in February 2003, the grass was 2½ to 3 inches high in the paddocks. It was down to a bit over half an inch by the time the photographs were taken, the older grass having broken down and the newer grass coming on with rain. There had been rain at the time of one of his visits to Framlingham and the grass came on after that. Some sod-seeding had occurred, performed by Mr Rentsch and people associated with him.
69 Holdsworth said that he first heard from Nicholls at about 8pm, possibly 8.10pm, on 27 May 2003. At the time, he was at his house at Westmere. Holdsworth stated that Nicholls said that he was an RSPCA inspector and asked whether the cattle at Framlingham belonged to Holdsworth. Holdsworth insisted that he told Nicholls that the cattle were owned by JA Heath Inland Holdings, of which he was a part owner. He denied that he had been evasive because he knew that the cattle were in a bad state.
70 On the occasion of this phone call, Holdsworth stated that he spoke to Nicholls for "a good while", not arguing with the proposition that the call went for some 23 minutes and 57 seconds. He agreed that, immediately after the call from Nicholls, he had rung Mr Rentsch. He then rang Nicholls back and had a further conversation of some 18 minutes. He believes that, in either the first or second call, he gave to Nicholls his mobile telephone number. It would also seem that he passed on the number of Mr Beard. He also agreed that there seemed to be no record of a phone call from Nicholls to Holdsworth on 30 May 2003. After some discussion in the absence of Holdsworth, it became clear that the telephone records placed in evidence, at least insofar as they involved Holdsworth's mobile phone, reflect outgoing calls only, as they are based upon telephone bills.
71 Holdsworth then insisted that, on 30 May, when in Camperdown, he received a phone call from Nicholls. This was when he and Ellison were on their way to Tesbury.
72 Cross-examination then returned to that earlier conversation of 27 May. Holdsworth denied that Nicholls had told him that, if he could not find the owner of the cattle or if they were not going to be looked after, a number of them would have to be destroyed. He agreed that, in that phone call, he had told Nicholls that, because of appointments and other commitments, he could not attend the following day, as he would be in Griffith. There had been discussion about the fencing, the feed available, where the cattle were running and the like. Holdsworth said that he was asked how many cattle there were, and that he had given Nicholls the number. At this time, Holdsworth was in Westmere and had to drive back to New South Wales the following day. Holdsworth said that Nicholls had told him that he had looked at the cattle, that they were poor cattle and that he did not like to see poor, skinny cattle. He asked who was looking after them, and it was for that reason that Holdsworth obtained the phone number of Mr Beard by ringing Mr Rentsch. He also organised for Mr Rentsch to have a look at the cattle. An arrangement was made. It was more convenient for both parties to meet on the afternoon of Friday, 30 May. Holdsworth had the meeting in Griffith in relation to finance on 29 May. He did not understand there to be any urgency in the situation. He was not told by Nicholls that, unless the owner could be found, the cattle were going to be put down.
73 In relation to the phone calls of the night of 27 May, Holdsworth said that he believed that, in the second phone call, he gave Nicholls his mobile phone number in addition to that of Mr Beard. Holdsworth stated that he had also spoken to Nicholls on the night of Thursday, 29 May from Carrathool. Nicholls, although he was supposed to, did not ring him. He denied that Nicholls had rung him on the morning of 29 May.
74 Holdsworth stated that he had rung Mr Rentsch on Thursday, 29 May, after Mr Rentsch had previously rung him, telling him that Nicholls was chasing the cattle around the paddock and was going to shoot them. Holdsworth asked Mr Rentsch to get Nicholls to ring him. By this time, he was in Griffith.
75 The cross-examination, which jumped back and forth from topic to topic and date to date, then moved back to the phone call from Nicholls to Holdsworth on the afternoon of Friday, 30 May, this being received when Holdsworth was in Camperdown. Holdsworth had terminated the call because of the police on the road and had gone into the bank at Camperdown in order to get some money. By this time, he and Ellison had already seen the cattle remaining at Framlingham. They were alive and well, but a lot had disappeared. Photographs at the site were taken by Ellison during both visits to Framlingham on 30 May. Ultimately, 183 animals, 90 cows and 93 weaners, being the remaining herd, were rounded up.
76 Certain evidence to be given by Nicholls was put to Holdsworth. He disagreed with the proposition that many of the cattle appeared to be in very poor condition. Holdsworth asserted that the pasture was green, but was edible for cattle. Holdsworth would not argue with the proposition that some dead cows, which had partnership ear tags on them, may have been seen by Nicholls on 25 May. However, Holdsworth stated that there were no dead beasts there when he had last visited. He denied that there had been any lack of nourishment. He stated that, if a cow was down and had been thrashing around, the proper thing to do was to try to get her up and find out what was wrong with her. The other thing to do with such a cow would be to try and find the owner. If someone could not find the owner and could not get the animal up, the appropriate thing might be to shoot such animal.
77 Holdsworth agreed that it was appropriate for a veterinarian to be contacted. Holdsworth also referred to the fact that "we" had been told that the cattle which went to Tesbury in fact belonged to Geoff Clark (who gave evidence subsequently). He was then cross-examined about a conversation which he had with Mr Murray Moloney (who also was to give evidence subsequently). Mr Moloney had told him that the cattle which were shot were in good order and that everyone had been told to take in their fridges to get some good meat for themselves. It should be said that Tesbury dealt in pet food, as opposed to meat for human consumption.
78 Holdsworth stated that, on his visit 14 days before the relevant incidents, the cattle all looked well and in better condition than they appeared to be in relation to a particular photograph (which seems to have been photograph 27 of Exhibit H, or possibly photograph 4 - see T555 and T556).
79 There was considerable cross-examination of Holdsworth concerning the tagging system and the numbers used. Holdsworth seemed to me to become quite confused about this. I will say at this stage that I am not persuaded that some person or persons unknown engaged in some re-tagging of certain animals. Holdsworth may well have some genuinely held belief in this regard, but the state of the evidence does not persuade me that this in fact occurred. Apart from the fact that Holdsworth tended to become confused, needing breaks in relation to the giving of evidence, he stated freely that he did not handle tags during the marking process.
80 Holdsworth was then taken to another set of photographs (Exhibit X). He identified some cattle that had been there when they arrived on Friday, 30 May. There were no red marks on the cattle that had been left behind. Again, it is difficult to summarise evidence concerning specific photographs. One of these photographs, the bottom one on page 6, revealed that sod-seeding had taken place. Holdsworth agreed, effectively, that the sod-seeding had been done a short time before the cattle left and that the grass had not grown from it. When the B-doubles arrived, the ramp at the back was such a distance above the ground that some of the cattle had to jump off. These cattle had to be put down because of their injuries and not because of their poor condition. On the day that the cattle arrived, Holdsworth was effectively there all night. He had had to go back to obtain a gun to put down the injured cattle. The carcasses of those animals were dragged into the forest, attached by a chain to his utility. He stated that he tried to ring Tesbury to come and pick them up, but they did not do that. After discussion with Mr Rentsch, he dragged the carcasses into the forest. He also stated that there were carcasses of other cattle and other breeds in the forest. There were also carcasses of other cattle in the paddock area. He had seen these when doing the fencing before his cattle arrived. The plaintiff stated that on Friday, 30 May, when he arrived with Ellison, he did not see any carcasses in the paddocks.
81 Holdsworth agreed that on Thursday, 29 May, at approximately 4pm, he had rung Directory Assistance, and shortly after that had rung Nicholls. He agreed that the records indicated that he had rung Nicholls from Carrathool at approximately 5pm.
82 On Friday, 30 May, Holdsworth did not actually meet Nicholls, but spoke to him twice on the phone as described. Holdsworth also stated that he had brought some hay to the cattle. This was brought from his home at Westmere. He agreed that he had probably said to Nicholls that there was a lot of feed in the bush on Framlingham. He also said to Nicholls that there was a number of cows missing. He denied that he had said that it was the responsibility of the Framlingham Aboriginal community and Mr Beard to feed the cattle. Indeed, he denied that any such responsibility existed. What he had said to Mr Beard was that he, Holdsworth, should be informed if feed had run out or anything of that nature had occurred. He told Nicholls that he would feed the cattle over the weekend.
83 The cattle could have continued to agist at Framlingham until spring and beyond but, assuming that there had been rain in New South Wales, the plan was to take the cattle there. He had planned to pay some money to those who ran Framlingham on account of certain posts and wire, but that had never been worked out. I might say that any agreement in relation to agistment fees, fencing and the like, was difficult to work out from Holdsworth's evidence, although there does seem to have been an arrangement whereby Mr Beard was to get six cattle at the end of the agistment period.
84 Ultimately, Holdsworth again described Nicholls as not being a man of his word, having given such word on the telephone - see T635.
85 In re-examination, Holdsworth confirmed that Ellison also used his mobile phone at the relevant time, including calls to family members such as her son, David. Holdsworth usually took his mobile phone in the car with him. Calls to people such as Mr Rentsch and Mr Beard were more likely to have been made by Holdsworth. Prior to the intervention of the RSPCA, there were a number of calls back and forth between Mr Rentsch and Holdsworth, these being most likely in relation to whether everything was alright and as to how the cattle were going. Contact was made at least once a week. Prior to the intervention of the RSPCA, neither Mr Rentsch or Mr Beard, nor Mr Geoff Clark or Mr Len Clark, contacted Holdsworth suggesting that feed was getting low, supplementary feed was needed, or the like.
86 In relation to the video shown, the area portrayed was in the top north-eastern corner of the property and did not show the lengthy cleared area to the right-hand side of the drive. There was a large triangular paddock running over to the Hopkins Highway which does not appear to be shown on the video. The cattle had access to such areas. There had been troughs, apart from the brand new plastic ones, purchased and put in the forest area.
87 In relation to the telephone conversation with Nicholls on the Tuesday night, Holdsworth said that he was not being evasive with Nicholls and had nothing of concern which he might wish to hide from him. He repeated that he did not regard Nicholls as a man of his word because, having made arrangements, he did not keep them.
88 Holdsworth was then re-examined in relation to sod-seeding. He identified marks in a paddock in a photograph taken on 30 May as appearing to be lines taken as part of the sod-seeding process. He also identified areas of grass as being of the type seen throughout the forest and to which the cattle had access. He stated that, at no time, was he reluctant to speak to Nicholls. Holdsworth confirmed that, essentially, the partnership herd was confined to the northern end of the Framlingham estate and to the forest. When Holdsworth and Ellison arrived on 30 May, there were signs, shown in one of the photographs, that the cattle had been going backwards and forwards from the forest to the northern paddocks.
89 The last three cattle that were found by Holdsworth and Ellison, when rounding up the remainder of the herd, were taken along a track through the forest to Mr Len Clark's paddocks at the southern end. They remained there for a while.
90 Holdsworth said that the only time that he knew that there had been any complaint about his cattle was when Nicholls rang him. Otherwise, he had not heard of any complaints. To Holdsworth, Nicholls did not identify who had complained to him. Holdsworth knew nothing about cattle carcasses being burnt in the bush and saw no signs of this. On 30 May he did not see any carcasses on the property. He had also seen no carcasses on the video that was shown. When he had been there on 14 May, he did not see any carcasses and had no reason to believe that, between 14 May and 27 May, cattle were dying. If cattle had been dying between 14 and 27 May, he would have been informed. If Holdsworth had been told that supplementary feed was required, he had a lot of it at the Westmere property.
91 I then directed some questions to Holdsworth in an attempt to confirm the number of cattle involved and where they subsequently went, this being an attempt to keep a tally or inventory of the cattle. Holdsworth stated that 497 cattle, being 493 cows and calves and four bulls, went to Framlingham. One hundred and eighty-three, being 90 cows and 93 weaners, returned. A further 50 calves, which Holdsworth did not think had been included in those figures, had been born. No cattle, shown in the photographs with red marks on them, came back to Westmere, and, bearing in mind the evidence given in the Magistrates' Court at Ballarat, Holdsworth believed that none of them had gone to Tesbury. The missing or slaughtered livestock included four bulls, calves, cows and weaners.
92 Holdsworth was later recalled in relation to estimation of cattle numbers. His evidence was that 496 cattle, including four bulls, were taken to Framlingham and that an estimated 50 calves were born there, making a total of 546. Some cattle were injured coming off the trucks of Mr Congram, and these were later towed by Mr Rentsch into the bush. Cattle put down by Nicholls or pursuant to his instructions numbered 188. 183 cattle were returned to Westmere. That leaves 153 cattle missing. He was again adamant that no cattle with red marks on them were taken back to Westmere. In cross-examination concerning this, Holdsworth would not agree that the cattle in photograph 30 (with red marks on them) looked to be in much worse condition than those in photograph 29 (which had no red marks). The difference was that photograph 30 appeared to have been taken from above.
93 I should say at the outset that, whilst Holdsworth is quite deaf, Ellison seems to be even more deaf. Both evidence-in-chief and cross-examination of her were difficult and, at times, confusing. In addition, Ellison seemed at times to me to exaggerate and to use what was described by Mr Langslow as "flowery language". She gave the impression of having something of an emotional attachment to the cause of action. I do not say that that her evidence is to be rejected in its entirety. Rather, I am of the opinion that her evidence was less reliable than that of Holdsworth, and particularly than that of certain other witnesses. Apart from the problems caused by her deafness, she did appear to be involved emotionally in the case.
94 Whilst Ellison was not the next witness to give evidence, because she is the other plaintiff it seems to me to be logical to deal with her evidence now before turning to that of other witnesses
95 Ellison has been in cattle and livestock since childhood, having been born and raised in New Zealand. She came to Australia in 1965 and almost immediately became involved with Murray Greys. She originally worked with a man called Mr Dick Rogers, who started training her and sent her away on a course. Her initial training was to do with the showing of cattle, preparation, feeding, grooming, and the like. Essentially it was getting stud cattle ready for a royal or country show. This also involved selecting the right cattle. She was also involved in the foundation of the East Gippsland Murray Grey Society, Mr Rogers having a farm there. She worked with Mr Rogers for some 18 years until he died. Ellison then became the owner of a herd of Murray Grey cattle on her own account, her herd including two bulls bred on what is known as the Cloverdale line. These were particularly good as stud bulls and were so registered with the Murray Grey Society. She then had show success with her line of cattle. Without going through the precise details, it can be said that Ellison appears to be particularly well qualified in relation to stud Murray Grey cattle and had been very successful in that regard prior to her going into partnership with Holdsworth.
96 Ellison got to know Holdsworth when purchasing high quality oats from him. She discovered that Holdsworth and his wife, who has since died, had Murray Grey cattle. After the death of Mrs Holdsworth, discussions were held concerning combining Ellison's herd and that of Holdsworth and in particular that part of his herd which was in New South Wales. This turned out to be a perfect combination of herds, each tracing back to the Cloverdale line. Ultimately the partnership, JA Heath Inland Holdings, was formed. Ellison was also a member of the Murray Grey Society which, at that time, was based in Albury.
97 Ellison regarded Holdsworth as having a good eye and being very astute in relation to cattle. Ellison said that Holdsworth and his wife had enjoyed considerable success in Murray Grey carcass competitions.
98 Ultimately Ellison and Holdsworth purchased the property at Carrathool. The herd at Carrathool had the specialised families in it with input from both Ellison and Holdsworth. She described the cattle as being her "pride and joy" - see T 1164. Ellison was taken to photographs showing how the land looked when the severe drought commencing in 2000 or 2001 was affecting it and also photographs of the cattle on the stock routes or "long paddock". Care had to be taken that the herd of Holdsworth and Ellison did not mix with other cattle. Whilst the herd was on the "long paddock", some stock was sold to provide income, but the very top breeders were retained.
99 She pointed out that the "Piney Park" property at Corowa was purchased in order to save the herd - see T1175. She also stated that lightness of condition does not make any difference to the breeding. Mobile yards were also built and set up. All of this was done because the breeders were "very, very valuable to us" - see T1177.
100 Ultimately, the canola crop at "Piney Park" was eaten and the partnership had to get in lots of fodder, molasses, and the like. Food was very scarce.
101 By the end of 2002 and into 2003 weaners and some heifers had been drafted off, some heifers going to Carrathool and some to Bairnsdale. What was left were essentially cows with sucking calves. By this stage the cattle were lighter in condition, but were in good health. However, feed at "Piney Park" also ran out.
102 Ellison described the Framlingham proposal as "a godsend". She and Holdsworth went down to Framlingham and met with Mr Beard and Mr Rentsch. It was the first green grass that they had seen for many months. Agistment arrangements were immediately discussed and Ellison took some notes. Essentially the agreement which she recorded was to the effect that the Murray Grey cattle could graze on the Framlingham Aboriginal Trust land from 25 February 2003 to 25 February 2004. The stock could be withdrawn prior to the expiry date. Mr Beard promised to inspect the grazing cattle, check water troughs and the like and there was an agreement that he keep six young calves. The following day Holdsworth arranged for two large black troughs to be put in, together with the necessary pipes. The electric fencing was purchased. Ellison returned to Corowa.
103 At Corowa, Ellison organised for the transporting of the cattle and the assessment of them. Calves that could survive on their own and animals that were not fit for travelling or which the partnership did not want to go down to Framlingham were drafted off.
104 Ultimately, the animals going to Framlingham were loaded onto the trucks of Mr Congram. By this stage the partnership had been out of green feed and crop for some time. The animals were light, but were fit to travel. The drafting took some time because the partnership wanted to keep the stock that was very valuable to them in relation to blood lines. It was essential that they survive, and Framlingham was the place for this.
105 Between February and the end of May, Ellison went to Framlingham on quite a few occasions. The last time that she went to Framlingham was about a fortnight before the end of May. She noticed that there were about 50 newborn calves "bouncing around" and that the cattle were doing well.
106 On that visit, Ellison went for a walk around the property, including to the bush around the yards. The cattle were doing well, there were many newborn calves and no cow appeared to be in trouble. The calves did not appear to be showing any lack of magnesium, minerals or the like and there were no calves with bad front legs. Front legs bowing out is a sign of lack of nutrition from the mother, but there were none with this problem in mid-May.
107 Holdsworth kept in touch with Mr Rentsch. Ellison said that Holdsworth was very good in this regard and is very diligent. In the cleared area of the property at Framlingham, the grass was short but the cows enjoyed it.
108 In the last week of May, Ellison was at Carrathool while Holdsworth was at Westmere doing cropping. He then came up to Carrathool in order to go to Griffith on Thursday, 29 May. He had made appointments with a rural councillor and also with the bank. He also had a bad shoulder at the time. On that Thursday he made a number of phone calls during the day. He was on the phone to Mr Rentsch. Holdsworth was on the mobile phone a lot, and at one stage Mr Rentsch had told him that cattle were being shot.
109 They returned to Carrathool. Holdsworth became upset. Mr Rentsch had given Nicholls Holdsworth's phone numbers, but Nicholls had not rung back. Ultimately Nicholls did ring, and apparently told Holdsworth that he had shot 100 stock. Holdsworth virtually exploded and it was all very upsetting. On the night that he came back from cropping at Westmere, Holdsworth had told Ellison that he had an appointment with "the RSPCA man" on the Friday.
110 Ultimately, Holdsworth and Ellison packed and left Carrathool just before midnight. They drove through the night to Framlingham, where they arrived at approximately 6.40am on the Friday. They went to the cattle yards. Ellison took a number of photographs. Ellison noticed some cows or calves on the left hand side of the driveway, but otherwise wondered where all the cattle were. Holdsworth went into the bush to have a look for them. He ultimately returned, and both of them had a look around the yards. The yards were messy, and blood could be seen. They were at Framlingham for approximately 30 to 45 minutes and then drove to Warrnambool to the police station. They alleged that cattle had been shot and stolen, requesting the police to come to Framlingham and have a look at what had happened. This did not occur. Ellison and Holdsworth returned to Framlingham. After Holdsworth had a phone call from his son, Stephen, they set off for Tesbury. When they were in the midst of Camperdown, Nicholls rang on Holdsworth's mobile phone. They stopped in Camperdown so that Holdsworth could go to a bank. They then went on to Tesbury, where they had a conversation with some people in the office. Ellison accused them of stealing her cattle. Whilst there, Ellison obtained photocopies of business records. She subsequently made enquiries of various people and wrote letters, including letters of complaint to the police.
111 From Tesbury, Ellison and Holdsworth returned to Westmere. On the following day, they attended again at Framlingham. Animals were removed from there and taken to Westmere. No bulls were found to be taken back to Westmere. The bulls that had been taken to Framlingham were the partnership's sole breeding bulls. Ellison stated that all the good breeders and top weaners were gone. What they had been left with were dry cows and calves that could not be marketed.
112 She referred to the fact that the photographs taken by her at Framlingham showed fresh truck marks into the yards and to the loading ramp. She mentioned that only a few animals were found by them in the bush. Some cows came back from the bush looking for their calves. Ellison said that she took photos because of the need to do it. One picture was of an area inside the forest which showed good roughage and also good feed underneath. She emphasised the importance of roughage during a drought.
113 Ellison confirmed that no heifers went to Framlingham. Some steer calves went there. Two hundred and seventy cows went, but Ellison was not able to give figures in relation to the number that had calves at foot. At the time there was no one at Corowa who could have looked after the four bulls and hand feed them. Further, there was no hay available within the proximity of Corowa or Carrathool, as this had been exhausted.
114 There was then considerable cross-examination concerning the marking or ear tagging of cattle. At times this evidence was hard to follow, a situation not assisted by Ellison's quite profound deafness.
115 When looking at photograph 10 of Exhibit H, Ellison identified the animal as a bull. She referred to it as having lost "so much weight", but said that all their cattle had lost weight during the drought, but were picking up at Framlingham. She thought that the bull in the photograph was fine.
116 Ellison stated that, when she arrived at Framlingham on 30 May, she did not see any dead cattle in the paddocks or any old carcasses. She did not go right through the bush, but only looked around the yards and the paddocks in that area.
117 Ellison said that the ramp, as shown in photograph 36 of Exhibit H, was not as it was when she saw it upon arrival in the early hours of 30 May 2003. The cover of the ramp was totally different. Her suspicion was that there had been come cover on the ramp which had subsequently been taken off. Ellison's conclusion was that all of this - the clean ramp, a missing piece of timber and the like - "just did not add up" - see T1329.
118 There were also massive tyre tracks in and around the ramp that would have been from very good sized trucks. There was evidence of the trucks having backed up to the loading ramp.. The bulls and top breeders were gone.
119 Ellison said that the cow depicted in photograph 36 of Exhibit H was in light condition, and would attract a score of about 1. The cow in photograph 37 was a little better. The grass shown in photograph 38 was short, but was fresh and nourishing. Ellison also pointed out that the photographs, being those taken on behalf of the RSPCA, were basically all taken out in the open paddocks and not in the forest where the roughage feed was. She stated that the cows shown in photograph 54 needed medical attention, but not to be shot. To the knowledge of Ellison, a veterinarian had not been on the property whilst the cattle had been at Framlingham.
120 Referring to the June arrangement for the record of interview, Ellison thought that, if Holdsworth had gone to the police station for an appointment, he would keep it and, if the person who made the appointment did not turn up, he would still stay there "until it was closing time" - see T1382. She understood that he was going there to meet Nicholls. She reiterated that the four bulls that went to Framlingham essentially came from Corowa, where the food had run out. She also said that the four bulls that went to Framlingham were from Corowa and had been on the "long paddock".
121 Ellison gave evidence concerning a photograph of an old carcass which she had found on a visit to Framlingham. On its face, this was not a particularly important issue, but her evidence in relation to it was decidedly shaky and unconvincing. She also had difficulty in finding the photograph which she said showed truck marks going back to the ramp. I might add that a considerable part of Ellison's evidence was essentially more to do with issues surrounding damages, whereas Holdworth's evidence had been directed more towards liability and, to a lesser extent, cattle numbers.
122 Ellison agreed that Mr Rentsch and Senator Bill Heffernan had some cattle on the property at the time. However, she never saw other cattle mixed in with partnership cattle.
123 Whilst she understood that some cattle may have gone live to Tesbury, she had no idea where the others had gone. The RSPCA was in charge. She confirmed that the only day on which she had gone to the Warrnambool Police Station was Friday, 30 May.
124 The re-examination dealt principally with matters more related to damages.
125 Mr Keys is now semi-retired, but at the relevant time was an Animal Health Officer, employed by the Victorian Department of Primary Industries, and was based at Ararat. Mr Keys adopted an affidavit of 28 June 2011 as being true and correct. That affidavit describes in general terms how Mr Keys went to the Westmere property of Holdsworth at the request of Nicholls. He went unannounced and toured Holdsworth's property and adjoining properties to look at all of Holdsworth's cattle. As a result, he reported that the cattle were in reasonable condition and that no further inspection was necessary. The affidavit of Mr Keys is Exhibit F.
126 In cross-examination, Mr Keys agreed that Nicholls had asked him to have a look at a property and examine some Murray Grey cattle, that request being on 6 June 2003. Mr Keys stated that, whilst he had some difficulty recalling events because of the passage of time, he thought that the cattle that he was to look at were in fact separate from those that had been involved in the incident at Framlingham. Whilst he did not put that in the memorandum that formed the basis of his affidavit, he believed that to be the case. This may be a belief which he formed, and he was a little uncertain about it, but, in the circumstances, I prefer and accept the evidence of Holdsworth that in fact Mr Keys inspected all cattle on the property, including those that had come from Framlingham. I might say that Mr Keys again emphasised that his belief that the cattle which he saw did not include those from Framlingham was something to which he could not swear - see T92 and T93. Indeed, while saying that he had not inspected cattle from Framlingham to his knowledge, he may have so inspected. The condition of the cattle which he saw was satisfactory. As stated, other evidence, including that of Holdsworth, would suggest that the cattle inspected by Mr Keys did in fact include cattle that had been at Framlingham.
127 Mr Keys also described the method of scoring cattle on a scale between 1 and 5, where 5 is very fat and 1 is very lean. If a score of 0 is given, it would mean that the animal was emaciated and moribund, meaning close to death. Of the cattle he inspected, some were down to a score 1 condition, but none were in such a condition that he was worried about them.
128 Mr Keys was shown some photographs. The cow in photograph 36 of Exhibit H was one that he would score as 0, although he stated that he may have had to examine the animal physically rather than looking at a photograph. If he could see the cow walking or running around, that would enable him to give a more critical diagnosis. He again emphasised his reluctance to express his opinion, on the basis of a photograph, as to whether leaving a cow in a condition of that shown in photograph 36 would be an act of cruelty. In the view of Mr Keys, animals that were too weak to stand and walk, unless under fairly intensive attention, should be destroyed. He also expressed the view that the grass shown in a particular photograph might be of good quality, but he would be concerned about the quantity of it. A large number of acres, perhaps in excess of 1,000, would be needed for a herd of 400 cattle if the level of grass shown in the photograph was all that was available.
129 Mr Keys would not agree with the proposition that running four or five bulls with a herd of cows, unsupervised, was a recipe for disaster. However, livestock should also be supervised, depending upon the circumstances. He also modified his opinion somewhat concerning the amount of feed available, again emphasising that he was reluctant to comment on individual photographs - see T303.
130 Mr Keys stated that he did not know how good or bad things had been at Warrnambool in terms of drought in autumn, 2003. Leaving to one side other factors, and if the condition of the cows seen in photograph 36 was due to a lack of feed, he thought it unlikely that such a cow could be restored, in the space of a few weeks, to the condition of the cattle which he inspected at Westmere. Mr Keys stated that cattle should not be left unassessed for any length of time, but such assessment need not necessarily be coming from a veterinary surgeon. Someone who has knowledge of cattle sufficient to identify a problem would be enough. Animals in a poor to very poor condition need intensive surveillance to prevent further issues developing. The feed shown in the paddocks in some photographs was not good feed in that the quantity appeared to be a concern.
131 In re-examination, Mr Keys described one of the cows photographed, and to which his attention had previously been drawn, as being in a borderline situation. When it was put to the witness that there was also available grass in the forest area, he pointed out that he had only been answering questions on the basis of the grass in the paddocks shown in the photographs. He also stated that there may have been a lot of feed in the paddocks when the cattle were moved in during February.
132 Mr Keys further agreed that, on his inspection tour at Westmere, he was, to his knowledge, shown all the cattle on the property of Holdsworth and the adjoining property. He stated that he had gone around an extensive part of the property and was satisfied, within reason, that he had seen all or "pretty much all" of the cattle of Mr Holdsworth - see T327. If there had been some other stock nearby in a paddock that he did not see, it would be unlikely that they were in a condition significantly different from those that he did see. He also stated that he was still prepared to stand by the report which he had given. When shown a photograph of part of the herd (photograph 31 of Exhibit H) Mr Keys scored one of the cows at no more than 1 or 2, and also thought that an animal which he thought was a bull appeared to be in very poor condition. However, the others had been mustered, presumably walking of their own accord, and this would indicate to Mr Keys that, unless there was no other option, such cattle would not normally be destroyed. The cattle shown in photograph 39 of Exhibit H looked to be in a similar condition. Mr Keys explained that score 1 did not mean that an animal urgently needed the care of a veterinarian, but might need a good feed, good husbandry and frequent surveillance. However, that did not mean that such cattle required euthanising, particularly when they were able to move into a yard. The only animals that would require euthanising are normally those that are cast, moribund or suffering unnecessarily.
133 In answer to a question of mine, Mr Keys said that he had formed the belief that these were cattle other than those that had been at Framlingham because of the nature of the request for an inspection made by Nicholls. He was aware that there had been some form of problem at Framlingham, but was probably not aware of further details concerning it. He thought that this was more of a routine inspection caused by the fact that the cattle were owned by the same person as those that had been at Framlingham. It would be fair to say that - and this is no criticism of Mr Keys whose evidence I found to be quite credible - Mr Keys' somewhat tentative belief that he may have seen only cattle that had not been at Framlingham did not have a particularly solid basis. Clearly, evidence that he was in fact shown cattle, which included at least some that had been at Framlingham, would not be shaken solely because of his far from certain belief. Before departing, Mr Keys volunteered that he was very reluctant to talk about or make significant assessments from photographs. He described it as being very much inferior to actually being there and seeing the animals, "the big picture", animals moving, and the like - see T334. This statement, clearly designed to qualify or limit the weight to be attached to opinions expressed by Mr Keys on the basis of photographs, is one which I accept.
134 Mr Congram operates a livestock transport business, this being based in Finlay in New South Wales. He has undertaken work for Ellison and Holdsworth for some 15 or 18 years or more, and has been in the livestock carrying business for 33 years. He and his enterprise are Truckcare, accredited livestock carriers (such accreditation being in respect of animal welfare and by the RSPCA). He and his employees always assess the capacity of stock to be able to endure a particular proposed trip. Those that are not fit to travel are put to one side.
135 Mr Congram identified the billing invoice for the stock that was transported from Corowa to Warrnambool on 26 and 27 February 2003. This invoice showed that the stock carried were 271 cows, 222 calves and four bulls (497 cattle). This involved five B-double loads.
136 Before the cattle were loaded, they were drafted in order to take out any weak cattle that might not have been fit to be transported for the required distance. Apart from the cattle that were to go to Framlingham, Mr Congram believed that heifers between the age of approximately six and 14 months that had been running with the mob of cattle were returned to Carrathool. Thus, from Corowa, younger heifers went to Carrathool, cows and calves that were fit to travel went to Framlingham, and old cows that were not fit to travel went to the meatworks (it is to be remembered that four bulls were also transported to Framlingham).
137 The trip from Corowa to Framlingham took something in the order of six to eight hours, with the B-doubles stopping approximately every hour in order to check the condition of the cattle. It had been a bad season in this regard because of the drought. Mr Congram regarded the cattle that were taken to Framlingham as being light, but fit to travel.
138 Mr Congram's recollection, as opposed to that of Holdsworth, was that at Framlingham ramps were dropped and the cattle walked off quietly. His impression of Framlingham was that it was green and had some feed available, something that he had not seen for a while. He also went for a drive around Framlingham with Holdsworth.
139 Mr Congram also said that the condition of the cattle as they got off the truck was "quite okay" - see T360. They could get off without assistance. He again referred to Framlingham as being an "oasis" compared with what he had been seeing.
140 In cross-examination, Mr Congram stated that his recollection of the length of grass in the area where the cattle was unloaded was that it was about a foot or 18 inches high. He repeated that all the cattle walked off unassisted and stated that the ramp goes down and sits on the grass. He was not aware of any cattle being shot at the time of arrival. He stated that no cattle were put down whilst any of his trucks were on-site.
141 Mr Congram said that the vehicles could not get to the loading race and that is why they were unloaded from the trucks. Mr Congram also stated that, if the cattle were having trouble descending the ramps on the trucks because of their steepness, there is a method of jacking the door up so that it is about 18 inches above the ground. He confirmed that Holdsworth was present when the cattle were unloaded.
142 Mr Congram went on to describe an unloading procedure that would have involved the weaker cattle stepping off the ramp about 18 inches above the ground and stated this could well have happened. In essence, Mr Congram said that this usually happened, so that it probably happened in this instance.
143 Mr Congram agreed that a total of 497 cattle, being 271 cows, 222 calves and four bulls, had been counted when the trucks were loaded in New South Wales.
144 When shown the cow in photograph 36 of Exhibit H, he agreed that such cow looked to be in a horrible condition and he would have not have loaded her. He added that, given the green feed around her in the photograph, something was wrong. Looking at another photograph, he thought that the grass was certainly longer when he had unloaded the cattle some months earlier. Further, cows that were feeding calves would be pulled down. He thought that the feed in the photograph that he was shown looked short, but not bad.
145 In re-examination, Mr Congram agreed that sometimes cattle go off the side of the ramps at the back of the truck and do this about half way down. In answer to a question of mine, Mr Congram agreed that, even with the best of care, it is not unusual for cows or calves to be injured in transit. It was also quite common for weaker cows, particularly if injured, to lie down and recover at the end of the trip. In addition, he said that, whilst in 2003 there were unfortunately a lot of cattle that went down on the trailers and had to be dragged off, none of Mr Holdsworth's cattle had to be dragged out. They all went out "under their own steam" - see T384.
146 Mr Clark lives at Framlingham and has been associated with the Aboriginal Trust which runs the property in question. He stated that the trust property consisted of 500 acres of Aboriginal land and 3,000 to 3,500 acres of forest, with another 300 acres at the top or northern end of the forest. The 300 acres at the top of the forest is known as the "McKenna block", McKenna being the name of the owners from whom the Trust purchased the property. The community is located in the original 500 acres of cleared land at the southern end. On the McKenna block is a set of cattle yards (the McKenna block and the forest area were the areas available to the herd of Holdsworth and Ellison). Mr Clark regularly visited the McKenna block in 2003. The McKenna block had been sod-seeded over time and was quite good pasture. Within the forest area were quite large flats on which were native grasses which were green in summer, although not doing so well in winter. There were also three or four dams on the McKenna block and some seven to 10 in the forest. On the property, there were also three or four windmills with four or five troughs. In relation to the track that leads from the main gate to the yards, there was relatively new and good boundary fencing.
147 Mr Clark had seen the partnership cattle after they arrived. He described their condition as being generally good, although they were obviously drought cattle, some of them being "a bit skinny, and particularly those with calves" - see T681. They ranged from poor to good cattle.
148 Mr Rentsch had approached Mr Clark and his son. At the time, Mr Clark was a member of the community and had previously run the farms. Mr Rentsch stated that there was someone who wished to put cattle in the forest. Mr Clark and those involved in the Trust could see no reason why Holdsworth could not put his cattle there, bearing in mind that the cattle were drought affected and that there was good grass available. It was thought to be a generous thing to do for neighbours in a drought situation. Some fencing was done along the forest road to keep the cattle off the road and some additional troughs put on the edge of the forest area. Mr Clarke stated that the entire area is a water catchment area with good drainage. There were areas where there was a lot of grass in the forest.
149 At the time, Mr Clark was working in Canberra, but was going back and forth. He last saw the Holdsworth/Ellison cattle in May 2003. No one, including the RSPCA, got in touch with him or sought permission to enter the property. The cattle, when he last saw them, looked fine and he had fed them a bail or two of hay, trying to get them into the forest area. He has been involved with beef and dairy cattle all his life. When he last saw the cattle in May 2003, it did not occur to him that they should be put down. At the time, he had arranged for some other cattle to come to agist on other trust properties, because Framlingham was one of the few places where there was green grass left. Despite rumours in the district, none of Mr Clark's cattle were in fact shot or sent to Tesbury.
150 In cross-examination, Mr Clark confirmed that there was ample food in the forest. He also referred to sod-seeding that had been carried out in approximately 2000 and had continued to produce good feed. The Holdsworth cattle had been kept separate from cattle agisting at the southern end of the Trust property. He had tried to move the cattle from the McKenna block into the forest by the use of hay, because the sown pasture is sweeter than the forest grass and the cattle naturally gravitate to it.
151 Mr Clark stated that the boundary fence onto the road was an appropriate, stock-proof fence. He was also of the belief that an electric fence had been put down the middle of the road in the forest. Mr Len Clark's paddocks at the southern end were fenced, although it was possible that cattle could have got through such fences. Prior to the arrival of the RSPCA, he had not seen any carcasses in the forest or in the McKenna block.
152 Mr Clark expressed the belief that sod-seeding had been performed in 2002. In 2003, between February and May, he was home every few weeks. On the occasion that he was endeavouring to lure the cattle into the forest, he noticed that some of them had quite runny manure which indicated that they had been eating too much green grass. He realised that they were cattle down from the north, and thought some rougher grass might bind them. There had been plenty of green grass for them to eat. He also stated that the relevant paddocks had been "supered". 2003 had been a very good season and there was green grass at Framlingham.
153 Mr Clark agreed that, in the photograph that he was shown, the level of the grass in the paddocks looked as if it had been grazed and was low. When shown photograph 36 of Exhibit H, he stated that the cow there pictured was a drought cow. The grazing had kept it alive, which is essentially what the offer of agistment was all about. Having been shown a photograph of a paddock, he agreed that the grass shown in it had been eaten down, but said that there was enough there to keep animals alive. He pointed out that the herd also had the entire forest area. He also repeated that he had seen the pasture in February, and that there was plenty of grass. Obviously some of it had been consumed by May. He also said that he had no particular issue with the RSPCA and supported its actions in relation to cruelty to animals.
154 In re-examination, Mr Clark was shown a photograph taken either on Thursday 29 May (or, more likely, Friday 30 May) and asked to comment upon the grass that could be seen in the picture. He described it as showing "plenty of green grass" - see T740. He also identified in a photograph what appeared to him to be introduced grass of pasture.
155 Mr Len Clark also resides at Framlingham and is an Aboriginal Elder. I found him to be a particularly impressive witness. Apart from a short period in Melbourne, he has always lived in the Framlingham area. Where he lives adjoins the forest at its southern end. At one time he was the chairman of the body that controls the forest. He referred to knowing the forest like the back of his hands. It was also traditional to put cattle in the forest, because of the flats in it which provided great pasture. In 2003, there were two Aboriginal groups in Framlingham, one associated with Mr Len Clark and the other with Mr Geoff Clark, his second cousin. Mr Rentsch used to do a lot of work for Mr Geoff Clark. Mr Len Clark also knew Mr Beard.
156 Mr Clark recalls Holdsworth erecting an electric wire fence, using power from Mr Clark's house. He also stated that the forest is criss-crossed with tracks from the days of horses and carts and is easily accessible. Mr Clark subsequently saw three cows which had been rounded up in the forest and moved onto his property. He stated that they were in excellent condition. In addition, he and his family had earlier kept an eye on the cattle. Mr Clark said that he had previously had a lot of experience with cattle and he would say that the cattle which he saw on Framlingham had come from a drought area, but he would not say that they were in poor health. He thought that, having been in the forest, they would have been able to pick up. The cattle that were his and had been through drought conditions picked up in the forest and on the flats very quickly.
157 In cross-examination, Mr Clark said that he would not have been away from home for long periods in 2003. Mr Clark also said that he had had cattle in worse condition than those under discussion and that they had fully recovered. He was shown the photograph of a cow (number 2 of Exhibit H) which he described as being in poor condition, but, in his experience, a cow in that condition can be saved with proper food, and the like. He also said that, when cows go down, they can be picked up with a sling and are able to be saved. He scored the cow at 2½ out of 5. When shown photograph 36, he stated that the cow depicted was in poor condition and he would rate it at 2 out of 5, whereas that in photograph 37 he placed at 3. The cow in photograph 48 he described as being in reasonable condition or better. He was also of the view that the pasture shown in the photographs was of grazeable length, a view concerning which he said that he had no doubt whatsoever. He agreed that some of the grass depicted was a bit short, but also pointed out that it was seasonal. Mr Clark repeated that the cow depicted in photograph 36, which was the one that he marked the lowest, was lean but recoverable and definitely not a cow that he would put down. He stated that most farmers would try to save every bit of cattle that they had, even if this meant "taking the half dead cow inside, into their kitchen they will save it. They are always saveable" - see T764. He stated that three-quarters of the cattle that he had been shown could have been saved with proper care and husbandry. However, he then repeated that if he had been in control of cattle like that, they would have been saved. He stated that he had come to the Court because he wanted to be helpful, not only being of assistance to Holdsworth but to explain his experience in dealing with cattle. In addition, he knows the forest really well.
159 Mr Rentsch is an agricultural contractor and has various pieces of agricultural equipment. In approximately 2002 and 2003 he was doing agricultural contracting, but also had a trucking business carrying milk and hay. At the time, he had both a home phone number and a mobile phone number. At that time, he did a lot of contracting work for the Framlingham Aboriginal Trust. He knew the people in charge of it and had known them for years.
160 He recalled that the summer of 2002/03 had been long and hot with terrible drought conditions "up north". He had carted a lot of feed to the north. The carting of hay had been going on from November right through to approximately May. The conditions were terrible compared with the Warrnambool area.
161 As a result of some water cartage to the Westmere area and a conversation with Holdsworth's son, James, a couple of days later, Holdsworth rang Mr Rentsch, describing the conditions up north and enquiring as to agistment around Warrnambool. Mr Rentsch replied that he knew of none, as it had all been taken. Holdsworth rang back on a couple more occasions, describing how the cattle were effectively eating dirt in New South Wales. He also described how desperate the situation was, and Mr Rentsch had seen such conditions for himself. Mr Rentsch then thought of, and went to, the Framlingham Aboriginal Trust to see if cattle could be put in the 3,000 acres of bush. Effectively, approval was given.
162 Subsequently, Holdsworth and Ellison came and met Mr Rentsch. Holdsworth went for a drive through the bush with Mr Rentsch. There was plenty of feed in the forest area and there was also the cleared area. Fencing was done and access to water arranged. The fence was set up so that there was access into the forest area. There was also a meeting with Mr Beard, the farm manager at Framlingham. It was organised that, as Mr Beard was out every day checking the Framlingham cattle, he would also check that there was water for the Holdsworth cattle. Mr Rentsch had also been involved in the pasture improvement on the three paddocks that constitute the McKenna block. Grass that grew during the winter had been put in. This is a type of rye grass. He believed that some of this had been put in, in March 2003, and identified marks on the ground shown in a photograph in Exhibit X. The grass shown on page 4 of Exhibit X was said to be typical of the grass in question.
163 Mr Rentsch said that, after the partnership cattle arrived, he went out regularly to check on them, in addition to checking the cows that belonged to his brother-in-law. He would drive through the bush or forest part to the McKenna block. He had seen cattle belonging to Holdsworth and Ellison in the forest, as they were able to go between the McKenna block and the forest quite freely. He would often see cows in the bush in the clearings, in addition to being in the open paddocks.
164 Mr Rentsch said that when partnership cattle arrived, "They were struggling, they were - they were really in need of tucker, for sure" - see T782. By the time the RSPCA intervened, the cattle were starting to improve. Mr Rentsch said that he was quite surprised that some of the cows had started calving. He was also surprised at how quickly they had picked up, in that they had started to fill out again and were producing enough milk for calves. This may have caused some of them to look thinner, but essentially they were "doing okay".
165 In the three months following the arrival of the cattle, Mr Rentsch spoke to Holdsworth on the telephone quite often. This would occur at least once a week and Holdsworth also visited regularly. Mr Rentsch said that, if he had thought supplementary feeding for the cattle was desirable, he would have informed Holdsworth. Mr Rentsch saw Mr Beard from time-to-time and spoke to him on the telephone. As Mr Beard was the farm manager, he would make bookings for agricultural works such as sod-seeding, mowing, and the like.
166 In March 2003, Mr Rentsch found approximately six or eight dead cows in the area of the forest, the cause of death being unclear. They were in the area where the sod-seeding was done, towards the edge of the bush. Mr Rentsch rang Holdsworth and told him of this. He also rang Tesbury and gave some directions. Apparently Mr Rentsch had moved the carcasses and placed them near the middle gateway. However, because the cattle had been dead for some four or five days, Tesbury would not pick them up. As the carcasses were beginning to decompose and were in a public spot near the road, Mr Rentsch, using a tractor, towed them back into the bush again. Mr Rentsch said the ones that had died were not particularly thin and he wondered whether "they just tore in and ate the first thing they got to" - see T786. In fact the carcasses were towed to a part of the McKenna block close to the forest, but where there is a bit of bush. Mr Rentsch towed the carcasses there because that was a long way from any houses and the smell would not be a problem.
167 In late May, Mr Rentsch received a phone call from Nicholls, who stated that he was going to the property with a veterinarian in order to inspect cattle. As Mr Rentsch was going there anyway to look at the cows of his brother-in-law, he organised to meet Nicholls, which he did, at approximately 1pm. When he arrived, there was someone with a truck from Tesbury parked near the gateway. Nicholls was there with a veterinarian. Nicholls had a gun. Mr Rentsch asked him what was going on, and Nicholls said that he was going to destroy the cattle that were starving.
168 Mr Rentsch said that a conversation in the following approximate terms ensued. Mr Rentsch asked Nicholls whether James Holdsworth knew about this. Nicholls said that he could not get in contact with Holdsworth. Mr Rentsch said that he had been talking to Holdsworth on the previous day. Holdsworth had told him that he had a meeting with Nicholls at the property on the Friday. Mr Rentsch said that he also enquired of Nicholls as to what was wrong with the cows and why were they going to be put down. Nicholls replied that they were just too weak and starving. Mr Rentsch said that they were in "heaps better condition than the ones we're carting hay to up north" - see T789. Mr Rentsch noticed someone else in the paddock further over where there were more Murray Grey cattle and enquired as to who that was. Nicholls replied that that was another RSPCA inspector who was trying to round the cattle up and get them into the yard. Mr Rentsch asked that, if the cattle were in the poor condition that Nicholls was describing, how was it that they kept running away from the vehicle. Nicholls reply was that it did not matter, they were too weak to make it "in here so we'll shoot them out there". Mr Rentsch again said that Nicholls had to get in contact with Holdsworth, because they were his cows. Nicholls replied that he could not get Holdsworth on the phone. Mr Rentsch then said that the cows had come down from New South Wales and were absolutely starving when they arrived. Mr Rentsch said that the Aboriginal Trust had given Holdsworth the use of the bush, but what happened to the cows was the responsibility of Holdsworth. Nicholls would have to contact him. Nicholls repeated that he could not get Holdsworth on the phone. Mr Rentsch stated, "Well, James told me he was meeting you on Friday" and said that Holdsworth had told him that he was in New South Wales trying to organise some finance to keep the rest of his herd going. Nicholls' response was, "No, that's it, that's what I'm doing" - see T790. Mr Rentsch could do no more about it and simply said that he was going.
169 Mr Rentsch then headed back to Warrnambool, but when he got to Purnim, he received a phone from Holdsworth. He told Holdsworth what was occurring. Holdsworth said that he could not get there because he was in New South Wales. Mr Rentsch told Holdsworth that Nicholls had been trying to get him on the phone. Holdsworth said that he had not had a call from anyone, that he had been there all day, and that there were no missed calls. Mr Rentsch got Holdsworth to repeat his phone number and said that he would take it back to Nicholls, Holdsworth should wait where he was, and Mr Rentsch would get Nicholls to ring him again. Mr Rentsch then returned to the property and by this time another truck from Tesbury had arrived. Mr Rentsch approached Nicholls, gave him Holdsworth's mobile telephone number, and said that Holdsworth was waiting for Nicholls to ring him back. Nicholls took the piece paper with the telephone number on it, looked at it, put it in his pocket, and said that Holdsworth would not answer his phone. Mr Rentsch repeated that Holdsworth was waiting for Nicholls to ring him. Nicholls again said that Holdsworth would not answer his phone. Mr Rentsch then said, "I'm out of here, I'm going", and headed back to Warrnambool. Holdsworth rang him again. Mr Rentsch said that he had given Nicholls the phone number and Nicholls had said that Holdsworth would not answer his phone. That was the last that he had to do with the issue at that stage.
170 One or two weeks later, Nicholls rang Mr Rentsch and said that he wanted Mr Rentsch to come in and make a statement about what had happened to the cows. Mr Rentsch said that he did not want to have anything to do with it, and said to Nicholls that it was between him and Holdsworth. "You destroyed his cows. It wasn't up to me" - see T791. Nicholls then said that, if Mr Rentsch did not come in and make the statement, he would be charged with cruelty to the cattle that were at Framlingham. He, Mr Rentsch, would be held responsible for it. Accordingly, Mr Rentsch went to the RSPCA's office and made a statement.
171 Mr Rentsch said that, when he went to the property when Nicholls and the other people were there, about 50 or 60 cattle were in the yards with possibly another 100 behind them. Some of these kept bolting out of the yards and running back out into the paddock area. In fact, one animal jumped over part of the stockyard fence. Mr Rentsch said that he asked Nicholls that, if the animal could jump like that, how could it be so weak that he was going to shoot it. Nicholls replied that the animal was probably scared with all the activity that was going on. Mr Rentsch did not see many cattle that were so weak that they could not make it to the stockyard. He said to Nicholls that he could see some skinny cattle that had calves on them, but the calves were looking well. Mr Rentsch's concluding observation in evidence-in-chief was that "it just didn't add up" - see T796 - which some might consider to be not a bad summary of the situation as he viewed it.
172 Mr Rentsch was then cross-examined. He said that the animal that had jumped the fence had got itself up with its feet and was roaring and carrying on. It then got over and dropped down the other side. It was not a little calf but was quite big. Mr Rentsch said that he had run cattle himself, but had not bred them. He had never engaged in veterinary work or the marking of cattle. However, he had been around cattle all his life and definitely knew the difference between starving and dying cattle, as compared to cattle that had been through a terrible drought.
173 In relation to cattle that had previously died, Mr Rentsch repeated that there had been six or eight not long after the herd had arrived. However, some three or four weeks later, someone (not Nicholls) rang from the RSPCA to say that there was a cow down about halfway through the bush and near one of the waterholes. This cow was down and could not get up. Mr Rentsch rang Holdsworth and told him. Tesbury was then contacted, ultimately arrived, shot the animal and took it to Tesbury. In relation to the six or eight dead animals which Mr Rentsch had dragged into the bush, he knew of no others that had been so dragged. Mr Rentsch said that he saw no evidence of the burning of carcasses, and he did not do this. He had not seen any cattle bogged in dams or reeds. Mr Rentsch believes that the dead cows that he saw were young, but that he saw no dead calves.
174 In relation to the phone conversations, Mr Rentsch stated that his understanding was that when he spoke to Holdsworth on the Thursday, Holdsworth had not yet spoken to Nicholls on that day. Holdsworth had told him that he had organised a meeting with Nicholls on the Friday before Nicholls spoke to Mr Rentsch. He understood that the conversation organising the meeting had occurred earlier in the week, referring to the need of Holdsworth to go to New South Wales. Holdsworth had said that he had been contacted by Nicholls to have a meeting about the cows, but, because Holdsworth had to be in New South Wales, the meeting was arranged for the Friday.
175 Mr Rentsch repeated that Holdsworth had stressed the fact to him that he had a meeting with Nicholls on the Friday to discuss the problems with the RSPCA and the cows. He stated that the primary reason for the access to the McKenna block was that that made another trough available. The basic idea was that the partnership cattle were to get the feed out of the bush. On two or three occasions, he had gone up to the bush and left a bale of hay there, but two or three days later the cattle would come back out again. The feed in the bush is not as palatable as the shorter green grass. Mr Rentsch did not lock the cattle in the forest because, if the two plastic troughs had run out of water, the cattle could still have had access to the water in the concrete trough on the McKenna block.
176 Mr Rentsch stated that Holdsworth did not have an answering service. When he rang Holdsworth, the number just rang and rang until it ceased or Holdsworth answered it. Mr Rentsch expressed the opinion that Holdsworth had done "a tremendous job" trying to save the cows" - see T328.
177 In re-examination, Mr Rentsch confirmed that Nicholls claimed that he had been trying to ring Holdsworth and Holdsworth would not answer his phone. He also stated that, on the previous day when Nicholls had spoken to him about going out to Framlingham, that was the first occasion that he had ever spoken to him.
178 Mr Rentsch struck me as being a reliable witness who was doing his best to answer questions accurately. Whilst, obviously, in a case such as this the evidence of witnesses, however reliable, does not always coincide, basically I am prepared to accept the evidence of Mr Rentsch.
179 Mr Walker is a truck driver who has worked in the past for Mr Rentsch. In 2003, at the property in Framlingham, he did work sewing grass seed and super. This included work at the northern end of the bush - that is, the McKenna block. He thought that this was in the autumn. There were some cattle there. He has worked with cattle most of his life. The cattle which he saw were Murray Greys. He worked performing the seeding of a winter pasture mix for approximately three days. On a photograph (Exhibit X, page 6), he identified seed drill marks in a paddock. It seemed to him that the cattle were fairly happy, with the calves chasing the tractor as they normally do. He was of the view that the cattle were obviously drought affected, but that they were "coming along". He noted that they came in and out of the bush.
180 In cross-examination, Mr Walker became somewhat confused concerning work done in autumn and spring. Ultimately, he expressed the belief that the work had been done in the autumn. One thing about which he was comparatively clear was that the cattle which were present when he was doing the drilling work were Murray Greys.
181 Mr Walker's evidence did not add a great deal to the issues but, on balance, I accept his evidence that some drilling and seeding work was done in the autumn of 2003 in the northern paddocks and in relation to his observations concerning those cattle which he had been able to observe.
182 Mr Doukas is a farmer. He visited the Framlingham property at the time that Holdsworth had cattle there on two or three occasions. His first visit was after he became aware that the RSPCA had been and that some hay should be taken to the property. He took two bales of hay. Whilst he cannot recall on which days this occurred, it was at approximately 3pm. He did not see any RSPCA people there. He had only been there a brief time when Holdsworth appeared. The recollection of Mr Doukas was that this was on either a Friday or a Saturday. He saw some cattle in the vicinity. He had not met Holdsworth before. He returned a few days later and met both Holdsworth and Ellison. Nicholls was a person known to him in that he had met him approximately two weeks earlier. This seems to have been in relation to an unrelated matter.
183 On the occasions that he visited and Holdsworth was there, the two of them went for a walk in the bush, because Holdsworth had said that there were accusations that there were cattle starving and dying there. They found none. Mr Doukas stated that there was grass in the bush. He thought that it was similar to the grass depicted in the pictures on pages 6 and 7 of Exhibit X. In the bush, there were a few cows walking around. He was uncertain as to whether or not he went back for a third visit. The cows that he did see appeared to be in a fair condition, considering the type of year that had been experienced.
184 In cross-examination, Mr Doukas said that he was not certain whether he had seen the cattle to which he referred before or after the visit of the RSPCA. His rough estimate of the number of cattle which he saw was between 50 and 100. He had no idea as to whether any cattle had been destroyed until Holdsworth told him so. That was probably over the telephone at some later date. On his second visit, he went for a walk with Holdsworth in the forest area. On that occasion, he was aware that Holdsworth had issues with the RSPCA. They looked in the bush to see if there were any cattle in such poor condition that they required shooting. He did not find any cattle in such condition. He did not observe the open paddocks. He saw no cattle that were down. If he had, it would have been of concern to him.
185 In relation to the hay, he thought that the cattle in the bush might eat the hay because "they want as much as they can get, but they were feeding quite happily in the bush". What he had seen on the day that he visited were cattle that had not been put down, but were in poor condition and, with hay and care, could be saved.
186 Whilst there was some re-examination of Mr Doukas, I am not of the view that this took matters further. Overall, whilst I have no issue with the reliability of Mr Doukas as a witness, to my mind his evidence had no important impact upon the central issues.
187 Mr Moloney is a butcher. In 2003, he commenced work at Tesbury as a slicer and knife hand. Prior to working at Tesbury, Mr Moloney knew Holdsworth and had worked on his property at Westmere in the shearing sheds. He had not seen Holdsworth for approximately a year before March 2003, but was aware of the fact that the bulk of the cattle which he had seen at Holdsworth's place had been Murray Greys.
188 Mr Moloney recalled an occasion when a lot of Murray Grey cattle arrived at Tesbury. He had been told the night before by Mr Steve Wakeling, the Manager of Tesbury, to come in early, because it was going to be a big day. He was told that many cattle belonging to Mr Geoff Clark were coming from Framlingham. He was also told the day before to bring his Esky, because there would be a lot of good meat coming in, good enough to take home. Mr Moloney became concerned because he knew that the cattle coming from Framlingham would in fact be Holdsworth's cattle, and not those of Mr Geoff Clark. He knew Holdsworth was really good with his stock and thought that there must be something wrong with him. Mr Moloney told Mr Wakeling that the cows that were coming in belonged to Holdsworth and not to Mr Geoff Clark. He also attempted to ring Holdsworth, but could not get onto him.
189 On the next day, ultimately some cattle did arrive. The carcasses were put in a big pile on the tarmac just in front of the skinning area. There were the carcasses of 50 or 60 animals that looked like a mixture of weaners and older cattle. Mr Moloney had a look at them. He considered that they were in good condition. None had red paint on them.
190 Mr Moloney then resumed his place on the chain. By the time the carcasses got to him, the hides had been removed. He effectively took off the heads and pushed the carcass further along the chain. He was in a position to observe that the stomachs of the animals were reasonably full. In the opinion of Mr Moloney, the meat was of export quality. He considered the weaners to be in really good condition, but the older cattle were a bit lighter and in "store condition". Mr Moloney said to Mr Wakeling and to Mr Warwick Kirkland (leading hand and supervisor of the skinning floor) that this was a travesty and that he was shocked at what he was seeing. He had worked with drought cattle before, but did not consider these to be drought cattle. They were lean, but doing well. Mr Moloney worked on at Tesbury for some further six months, until being dismissed after suffering an injury.
191 The procedure is that, after the carcasses are cut in half, they hang in the chiller overnight, then get boned, graded, sliced and processed. He took part in this as a slicer. Accordingly, he worked on every carcass. He worked next to Mr Kirkland. He repeated that the meat was good, and he would have eaten it.
192 In cross-examination, Mr Moloney described the procedure, which included a description of the removal of the hide. Mr Moloney stated that he inspected each of the carcasses in the initial pile of 50 or 60, but not ones that subsequently arrived, not seeing them until he was working on them. He repeated that they were beautiful cattle in good condition and that he was amazed that they had been shot.
193 Mr Moloney said that he had been told to bring his Esky in by Mr Phil Langley (a co-worker). He could not recall whether he mentioned Mr Langley when giving evidence in the Magistrates' Court at Ballarat. The conversation with Mr Langley was before Mr Steve Wakeling called a meeting to make sure that everyone was in early, referring to the fact that Mr Geoff Clark's cows were coming from Framlingham. From memory, Mr Moloney believed that they had been told that there were over 100 extra cattle coming in on top of the normal work.
194 As far as he could recall, all the carcasses came in on the one day. They mostly arrived in the afternoon or from 11.30am or midday onwards. His belief that the cattle which were coming in belonged not to Mr Geoff Clark but to Holdsworth was formed after a conversation with a friend, Mr Brett Moyer. He did not contact Holdsworth that night because he wished to be sure that they were Murray Greys that were arriving.
195 When Mr Moloney inspected the pile of carcasses, he was certain in his mind that they were Holdsworth's animals. None of them had ribs, hips or the like protruding. He repeated that the weaners were in "real good condition", but the older ones were in "store condition". None of them deserved to be put down. He made subsequent complaints and, as a result of his complaints, he was harassed by both Mr Langley and the owner of Tesbury, Mr Rivett. He was subsequently sacked on a date of which he was uncertain, but which he believed to be in late August (although it was put to him that he left on 28 September 2003).
196 Mr Moloney was certain that the Murray Grey carcasses that had been brought to Tesbury were owned by Holdsworth, because Holdsworth's Murray Greys were beautifully bred and quite distinctive.
197 The appearance of cattle which had been thrashing was raised with Mr Moloney. He said that, when that happened, some of the hair was usually rubbed off the hides. All the hides from these particular cows were in good condition, or "firsts", whereas if there was blood and bruising, the hide would be a "second". The cattle that he saw did not have disclosed and visible ribs. When shown a couple of cows in the photographs (photographs 3 and 4 of Exhibit H), he said that a number of the carcasses that he saw coming in were "as skinny as that" - see T900. There were none like that in the first load. He had earlier said that he could not understand how a veterinarian would put down cattle of the type which he had seen.
198 Whilst he had not seen any cattle such as that in photograph number 4, he did not agree that such cow was at death's door, but said rather that she needed a feed. Similarly, in relation to the bull shown in photograph 10, he said that it was in poor condition and needed a feed. He agreed that a cow that had been thrashing and appeared to be emaciated would need to be put down. Before shooting a cow that was down and could not get up, Mr Moloney would firstly call a veterinarian and have an injection administered in order to try and get such a cow back on its feet.
199 He also expressed the view that five other cows seen in photographs in Exhibit H were in bad to poor condition and "needed a feed". He had not seen a cow such as that in photograph 36 in the pile of carcasses or passing along the chain, and agreed that meat classed as edible for humans would not be able to be obtained from an animal such as that shown in photograph 36.
200 Mr Moloney stated that Mr Phil Langley, to whom he had referred, was the morning supervisor in the boning room. The complaint that Mr Moloney made to him would have been on the Friday, because the carcasses were all hanging up in the chiller. He repeated that the carcasses kept coming over the table at which he worked and it was obvious that they should not have been shot. Starving animals produce meat that becomes jelly-like, whereas the meat that he saw in these particular carcasses was "good robust meat" - see T927.
201 In answer to a question of mine, Mr Moloney said he could not recall seeing any bulls. There were no bulls in the pile which he had inspected, but a smaller bull could possibly get past him on the chain. When shown photographs 12-17 of Exhibit H, these being of the post-mortem of two cows, he stated that the meat visible was red and represented proper muscle fibre. He also noted vegetable matter in two of the stomachs that had been opened. His answer to a further question was to the effect that, when he had been taking the heads off the cattle, there would be a difference between the head of a bull and the head of a cow. He would know instantly if the head was that of a grown bull. He removed the heads of all the cattle in the load. He could also pick the difference between the head of a young bull and a cow.
202 He was also asked some questions by Mr Scanlon concerning matters arising out of my questions. He repeated that, in the relevant photographs of the post-mortem, it could be seen that the stomach was bulging because of the physical presence of the grass. He agreed that a photograph of some of the grass did not show the length or the quality of it.
203 As I stated from the Bench on one occasion, Mr Moloney seemed to me to be a witness who at times "went into bat" for the plaintiffs. Whether this was because he has known Holdsworth for some time or because of events that occurred at Tesbury, including his departure, or whether it was a combination of factors, is not clear. However, that does not mean that all of his evidence is to be disregarded. Parts of it seem plausible and logical. Parts of it accorded with the evidence of other witnesses. In short, I do not regard him as a completely unbiased and reliable witness, but I do accept considerable portions of his evidence.
204 Mr Wagstaff is currently the Regional Manager for ABS Australia, which is an artificial insemination company. Mr Wagstaff identified himself in photograph 31 of Exhibit H, being a photograph taken at the yards at Framlingham on Thursday, 29 May. This was taken at the time when the cattle were mustered and assessed, and when some were put down and loaded onto Tesbury trucks. In the photograph, Mr Wagstaff is standing on top of what would appear to be a pile of carcasses in the back of one of the trucks. In the foreground are cattle in a race along with an individual, subsequently identified as being Dr Irvine. Mr Wagstaff stated that he made a number of trips to the yards at Framlingham on that day. The truck he was driving would take 10 or 12 full size cows and, depending on size, 20 to 25 weaners. The carcasses are, in essence, winched up a folding tailgate to the tray of the truck.
205 In relation to his experience in the cattle industry, Mr Wagstaff said that he had been involved since leaving school at the age of 17. He worked on a dairy farm for five or six years before working with Tesbury, where he stayed for almost two years. He then went to work for Genetics Australia, an artificial breeding company based in Broome, before becoming Regional Manager for ABS Australia. He has undertaken professional accreditation in relation to artificial insemination and various related courses. He also did some four years work as a stock agent, working daily with cattle, in good and bad times. Mr Wagstaff said that what he had learnt subsequently had not altered the opinion which he had expressed to Mr Steve Wakeling at the time as to the condition of the cattle that were being destroyed and carted back to Tesbury.
206 I might say that Mr Wagstaff was a particularly impressive witness. I have no difficulty in accepting his evidence as being accurate and reliable. Further, the impression I formed was that he had no particular "axe to grind", and was giving honest and unbiased evidence.
207 Mr Wagstaff only attended the yards on the one day. After taking some cattle back to Tesbury, he was instructed to take over the rifle and shoot cattle which he was instructed to put down. His boss at the time was Mr Steve Wakeling. However, he understood the decision-making to come from the officers of the RSPCA and the veterinarians. He saw some of the cattle that were taken back to Tesbury, but not every one. He winched up the carcasses onto the truck for both the first and last load. He saw those carcasses in addition to the ones that he shot.
208 When he first arrived, it was assumed that he was only to pick up dead animals that had already been shot by officers of the RSPCA, and it would seem that a couple more animals were shot by those officers whilst such carcasses were being collected. When Mr Wagstaff discovered that, apart from those, there was also to be shooting of ones that had been run into the yards, he questioned Mr Wakeling concerning the necessity for these animals being shot - see T944. In his estimation, the cows were hungry, being drought affected, but so were 30,000 other cattle around the district.
209 The animals were in fact shot in the crush, where the crusher could be closed around the animal's neck. They were then dragged out and onto the truck. They fell in the race after being shot. The witness was shown photograph 36 of Exhibit H and identified it as the place where the shooting occurred. The shooting and dragging out process took two or three minutes, depending upon whether the animal was willing to walk up.
210 Returning to his discussion with Mr Wakeling, Mr Wagstaff said that, when he returned for the second load, he asked why the animals were being shot. His concern was that the shooting was taking place without the owner's permission or, as he understood it, knowledge. Before shooting an animal "you speak to the owner" - see T956. The owner was not present and, as far as Mr Wagstaff knew, did not know that the animals were being shot.
211 Another driver, Mr Steve Richies, was there and may have done two loads. There was another truck there, but Mr Wagstaff could not remember who was driving it. He also did two loads.
212 Mr Wagstaff described the way in which he had entered the property. On his first trip, he picked up the cows that were already dead, having been shot by the officers of the RSPCA.
213 Mr Wagstaff said that, when he got back to Tesbury, the truck was backed-up to a skinning cradle, the tipper was elevated and the cattle slid off onto the ground. When he got back, he talked to some of the workers there about the cattle and their quality. They were surprised as to its quality. Mr Wagstaff was of the view that the greater proportion of the animals should not have been put down.
214 In relation to the animals at Framlingham, Mr Wagstaff said that he did not know whether he had dealt with any bulls. He was not then differentiating.
215 Mr Wagstaff also said that, on the day, all he knew about the cattle in question was that they were told whose cattle they were and that they were supposedly from a Murray Grey stud which had sent them to Framlingham on agistment. (T986)
216 All that he could say about drought affected cattle was that they looked the same when in that condition, regardless of whether or not they were stud cattle. He was of the view that this also applied to bulls. He repeated that his view in relation to the condition of the cattle was the same now as it had been at the time. He agreed that the cow portrayed in photograph 36 of Exhibit H was in poor condition. However, he also said that he had seen a lot worse. He had worked as a stock agent and had sold cattle in that condition. He also agreed that a cow that had been thrashing and with mounds of dirt around it and which could not get up was most likely to be put down. This was particularly so on a beef farm. When asked if he would shoot the cow that was shown in photograph 36, he replied that, "If it was my cow, no" - see T990.
217 Mr Wagstaff went on to emphasise that, if he did not know the owner and was asked to put down an animal in circumstances where no one knew who the owner was, he would not shoot it. In relation to the particular situation, he said that he was being directed by the RSPCA, and also stated, "...we were told who the owners were, I was told that I was in no risk of being liable for it, so I was doing my job. Are you asking me if I had to make a decision whether that animal should be put down, I would say no" - see T991 and 992. In relation to the particular cow in photograph 36, he stated that she was not suffering as she could walk. However, he agreed that, nine times out of 10, a cow that was down and physically could not get up would be shot.
218 In regard to the grass at Framlingham, Mr Wagstaff thought that there was very little and that is why the cattle were in the bush eating ferns. The grass may have been good when the cattle arrived, but not when Mr Wagstaff was there. He also stated that he had been there on the one day only, although he believed that Tesbury trucks had been there previously, but not subsequently. As far as he could remember, his was the last truck out the gate apart from the vehicle that he saw driving in after he had left. He agreed that the shadows cast in photograph 31 of Exhibit H in which he appeared would indicate that it was late in the afternoon. Some other cattle were released back onto the property to feed and some hay was delivered. Those cattle were the ones that "they chose not to put down" - see T996.
219 On looking again at photograph 31, he thought he could count eight weaners in the race. He thought that there would have been room on the truck for them because of their age and size. He would not agree that the animals photographed were cows. It would not have surprised him if those animals were released back into the paddock without being shot, as he did not think that the ones that they were shooting should have been shot.
220 In answer to a question of mine, Mr Wagstaff said that the cow portrayed in photograph 36 of Exhibit H, being locked in the race in the manner in which it was, made him think that it was one that was going to be shot. There was no re-examination.
221 Dr Kuseff is a veterinary surgeon from Bairnsdale. His work involves a considerable amount of contact with beef cattle. He has had substantial experience in relation to cattle affected by drought, that having been a major problem in the district in which he practices. In such circumstances, cattle are going to look skinnier. There are a number of variables that affect the condition of the cattle, including pregnancy, lactating and the like. However, skinny animals can still remain strong. An animal that has a low condition score, when put on to better pasture, will put on condition.
222 Dr Kuseff described the method of scoring cattle based upon body fat and visual boniness. As previously discussed, the scoring ranges from zero to five. Normally, if animals are going to be sold for the food market, it is expected that their condition score will be 3 or 4. Essentially, an animal with a score of zero or one would be regarded as being emaciated or skinny. A condition score of 5 would indicate obesity. Neither end of the scale represents a justification for shooting the animal but, rather, is related to the adjustment of the food requirements. Each case needs to be assessed on its merits.
223 In relation to a recumbent animal, the first step is to assess why it is in that condition. This includes consideration of nutrition, pregnancy, feeding and the like. Such a recumbent animal should be given a thorough clinical examination, including the taking of body temperature, an estimate of hydration, an examination of teeth, an examination of the udder and other tests. Once the cause of the cow being down has been determined, it is then a matter of assessing what the next step to be taken is. This can include treatment of a disease, attempts at feeding and the like. It is also possible to help lift cattle by using hip lifters or a sling. This is done quite regularly. A lot would improve with regular lifting. Stimulants, and such things as the licking of molasses, can be beneficial.
224 There is also a distinction between external recumbency and lateral recumbency. External recumbency, where the animal is on its chest, often means that there is a good likelihood of getting a positive outcome, depending upon what the underlying problem is. Lateral recumbency, meaning lying on the side, is not good news, but again the reason for this has to be determined. A thorough clinical examination of a recumbent animal would probably take 10-15 minutes.
225 In relation to the present case, it was put to Dr Kuseff that the animals in question had been mustered or driven through stockyards. He was asked to assume that they had a score of around about one. He stated that he certainly did not think that it would be necessary to destroy such cattle. If they were able to move around, the more pressing consideration was to try and make sure that they are able to obtain some feed and then to improve the situation. If an animal is able to be got up and walked, euthanasia should not be the prime consideration. If an animal could be walked a couple of hundred metres to a yard, it could be expected to continue without distress for another two to five days. If it could walk into the yards, Dr Kuseff could see no reason why it could not walk out again. He also stated that, even in a situation where there was adequate pasture, cattle will go to supplementary feed such as hay. This does not indicate that the nutrition available has been inadequate.
226 Dr Kuseff was shown photographs 4 and 5 of Exhibit H. He stated that the animal was in external recumbency and that its score rating would have been one, but certainly not less. He described its demeanour as being quite reasonable, it holding its head normally with its ears up, indicating that it was attentive to its surroundings. It did not look like an animal in extremis. He thought that the animal looked as if it may be weak in the back end, but there is a lifting device available which could assist in getting it up. He carries with him such a device. He was assuming the cow could not get up by itself. There was no way of telling from the photographs. There was the possibility that the cow was simply resting. His overall conclusion was that the cow was skinny, but normal. It was also possible to get a cow up by frightening it or by use of a cattle prod, although he was not greatly in favour of the use of this. There are also medical stimulants.
227 Dr Kuseff was then taken to the photographs of the post-mortem examinations, these being contained in Exhibit H. Looking at photograph 17 in which the rumen had been cut in two places, Dr Kuseff stated that there appeared to be partially digested grass in evidence, this looking quite moist, indicating that the cow had been drinking until recently. However, there was not a lot of faecal material going through the small intestine, so that the cow could not have been said to have been gorging on food. Whilst being far from certain, he thought that there had been a period of perhaps 24 hours or so without food material going through. He was unable to determine whether the cow was pregnant, but thought, if she was, it would be a pregnancy of about five months duration. Dr Kuseff then stated that the animals in photographs 12 and 14 were different, one being pregnant (14) and the other not being pregnant. I might say that this became a matter of contention subsequently, but not a great deal hangs upon it other than it became a ground for some attack upon the expertise of Dr Kuseff.
228 Dr Kuseff also stated that, at the relevant time, one could expect the pathology results to come back from Gribbles within three to five working days. He would be disappointed if samples taken on a Tuesday did not mean that the results would be back before the Friday. He would expect to get the haematology and the urine analysis back by the Thursday, although the histopathology might take longer.
229 When shown the pathology results, Dr Kuseff said that liver changes may be a sign of a negative nutrition plan. He was not concerned about lung changes and the like. There was no sign of adult lung worm. However, it could be that the herd might need a drench. In relation to one animal ("Welfare 1"), he saw no signs of anaemia or that the animal had an illness or sickness to such an extent that it could not recover. He did not believe that the animal had been down for days.
230 Dr Kuseff was asked whether he recalled certain aspects of evidence given in 2005 at Ballarat, including the showing of a video. His recollection was that there was nothing on the video that worried him. He did not think that any of the animals that he saw required euthanasia. In relation to the photographs, which again had been seen in this Court, he remarked that it is hard to make comments based upon a still photograph in a categorical fashion as to whether or not an animal needed to be put down. However, most of those that he saw looked quite reasonable for drought cattle. There was nothing visible that indicated that animals should have been put down. In relation to the calf shown in photograph 18 of Exhibit H, he observed that it had been scouring quite badly, but that this may have been the result of an infectious problem. He did not think that it was a drought-related condition. Whilst he may have had some doubts, he did not think that euthanasia was required. He did not think that the animal in photograph 20 needed to be put down, and also observed that the condition of pink eye does not mean that an animal should be put down. There is treatment for it, such treatment not being difficult. Ninety per cent of animals that suffer from it get better without treatment.
231 Dr Kuseff expressed the opinion that the animal in photograph 41 was in external recumbency. Efforts should have been made to get her to stand up before shooting her. The cow in photograph 38 appeared to be standing up and had already got its back end up. Normally, in a weak cow, this is done in the opposite way, with the front end coming up first. It is an animal that certainly would be able to survive for several days. The group of cattle in photograph 29 did not look as if they should be euthanised on that day, and the same could be said of cattle in photographs 30 and 31. In photograph 31 they are all up and moving around. The steers in photograph 30 looked fine. In photograph 35, the cattle looked alright, although the bull was a little lean, but not so bad as to require euthanasia. He was quite definite that the bull in photograph 35 did not have a prolapsed penis. Dr Kuseff stated that he did a lot of work with bulls and that this was definitely not a prolapse. The animals shown in photographs 40 and 42 should not be put down.
232 Dr Kuseff thought that the animal shown in photograph 43 of Exhibit H was perhaps a little bit below a score of 1, and probably the leanest that he had seen. However, she did not look as if she was overly stressed and had her ears up. Whilst it was hard for him to say without seeing her walking around, his impression from the picture was that she did not need to be shot. In relation to photograph 44, which showed three animals, one cow looked very light, but she had a reasonably large udder and was probably feeding. If the calf was weaned, she would probably put on condition. Photograph 43 (and 47), which showed a brownish cow ultimately put down and, in 43, a calf, were photographs which, in the case of 47 when the cow had been put down, exaggerated the pelvic prominences because of her position. The calf did not look very impressive and, if its mother had been put down, probably would not survive. In another photograph, he thought that the calf should be weaned off the cow to give her a chance of regaining condition.
233 Dr Kuseff said that cattle would generally prefer to eat a lower improved pasture than native pasture. However, photographs which he was shown (from Exhibit X) indicated that there might be enough native grass in the forest to maintain cattle, even though they preferred the other feed. He identified that sod-seeding had taken place when looking at page 6 of Exhibit X. Photographs of cows which were not put down but which remained on the property appeared to be fine, with a condition score of 2.
234 In cross-examination, Dr Kuseff agreed that he was from Bairnsdale and that the basis of his involvement and opinions was effectively photographs and a short video. He was initially approached by Mr David Ellison, who was an acquaintance of Dr Kuseff. Dr Kuseff has undertaken veterinary work for the Ellisons. Dr Kuseff's professional opinion had been sought in order to support Ellison in the prosecution against her and Holdsworth in 2005.
235 Dr Kuseff's basic belief, both then and now, was founded on the premise that there were a lot of cattle that were slaughtered because they were lean and skinny. They were taken to the yards where those that were thought to be needed to be killed were killed immediately. Dr Kuseff thought that it was the wrong thing to do, and still thinks that. Dr Kuseff said that he had only met Holdsworth once or twice, including at Ballarat Court, and that the only information he obtained prior to the previous trial was from the solicitors. That included inspection of the photographs. Dr Kuseff also agreed that there was a distinction between the weaners and the cows, particularly those with calves, and which had lost condition. He also said that he had been in practice for over 30 years and had had dealings with the RSPCA previously. He understood its obligation to look after animals that may be subject to cruelty.
236 Dr Kuseff also stated that it was harder for him to make broad statements concerning the condition of the animals as he did not see them at the time, but still believed that euthanasia was not the way to go - see T1075. He had been called by the RSPCA on occasions to examine cattle and horses and the like, and so he was familiar with contact between the RSPCA and a veterinarian. He also agreed that, if ownership had been denied and the RSPCA needed to operate without an owner, that would change the method of such operation. Dr Kuseff agreed that Dr Irvine, being on the spot and seeing the animals, was in a better position to make an assessment of the state of the cows and to determine whether they should be put down or saved. Dr Kuseff also agreed that a cow that was very lean with a score of 1 or less is a hungry animal, and with that comes distress and anxiety. He also agreed that there was not a lot of grass to be seen in the photographs, but there was some in the forested area. Whilst he would not describe the pasture in the paddocks as good, he also stated that everything was relative and it depended upon where the cattle had come from. If previously they had little but dirt, then what they were on, as seen in the photographs, is good pasture. It may also be that the animals had not spent a great deal of time in the forest and that is why the pasture was so low. The assumption would be that to the cattle the improved pasture was more palatable. He also said that it was very difficult to make an animal put on condition by supplementary feeding. He agreed that, if the animals had been left for some months without any veterinary advice, this was not an ideal situation. He further agreed that, if there were cows dead on the property when Nicholls arrived, this would set alarm bells ringing. Dr Kuseff also said that, from his experience, starving cattle are not going to be thrashing. He agreed that the animal portrayed in photograph 24 of Exhibit H, was "a bag of bones" - see T1097. He thought that such animal would have to be put down. He also thought that the calf portrayed in the photograph with the cow was in quite reasonable condition. He would not have shot such an animal. He considered that shooting the calf because it had been orphaned was cruel. Dr Kuseff repeated that it was difficult to make assessments from photographs.
237 In re-examination, Dr Kuseff said that it seemed to him to be very harsh that so many beasts were euthanised just because they were lean and hungry. That does not mean that they all needed to be euthanised. He stated that he would think about euthanising an animal which was recumbent, unable to get up, and when he could not find a medical reason for it not being able to get up. If animals are up and walking around, "they would be okay" - see T1103. He had also had experience of dealing with a herd of cattle at Bairnsdale which had been affected by starvation and neglect. When he was called in, there were quite a few cattle down and some dead cattle on the property, but arrangements were made to feed the animals. There was no wholesale slaughter.
238 In answer to a question of mine, Dr Kuseff said that, in circumstances such as those at Framlingham involving a large number of cattle, he would prefer to look at them in the paddock where they were rather than rounding them up, which causes them additional stress. Further, he stated that if the cattle were well enough to be rounded up and run into yards, then the decision-making to the effect that the cattle had to be put down could be questioned. He was aware of the issues of food and supplementary feed, but stated that, "... if there was a likelihood that within a couple of days we could get in touch with the owner, then, you wait. That's just what I'd do." - see T1109. When asked further questions arising out of my questions, Dr Kuseff repeated that he could not see what the urgency was to run around and shoot animals on the spot if they had been there for the last three months, having arrived in bad condition. He did not think that things had been done properly.
239 Basically I found Dr Kuseff to be a credible witness. In relation to individual cows seen in photographs, it may be that, as he fairly conceded, a veterinarian who was "on the spot" would be in an advantageous position compared with one like himself who could only look at photographs and a short video. I also appreciate that Dr Kuseff is certainly not wholly independent, being the Ellison family veterinarian and an acquaintance of Mr David Ellison. However, he did not strike me as someone who was "going in to bat" for the plaintiffs. I accept that he genuinely believed the opinions which he was advancing.
240 Mr Ellison, son of the plaintiff Ellison, is an officer in the Customs Marine Unit. He lived on the farm at Bairnsdale since early childhood, and grew up with Murray Grey cattle being on that farm. He had also been to Carrathool in relation to the cattle there in which he had an interest, and had worked with cattle at both venues. This work included mustering, drenching, husbandry, and the like. He had also undertaken stud work, including grooming and teaching cattle to lead in preparation for shows and sales. He stated that his mother had enormous success at the Sydney, Melbourne and local shows. She had the Senior Grand Champion Bull at the Royal Melbourne Show.
241 He regularly visited Carrathool after it was acquired by his mother and Holdsworth. He still attends regularly. He remembered that the cattle at Carrathool were in outstanding condition in the early 2000s before the drought. He could also recall the animals being on the "long paddock" for some 20 months, during which time they lost condition. He was also aware of the cattle ultimately being trucked from Corowa to Framlingham.
242 Mr Ellison first saw the cattle at Framlingham on 31 May 2003. He had received a phone call from his mother on the evening of 29 May 2003, he being in Deniliquin at the time. He was told that the cattle at Framlingham had been rounded up and approximately 120 of them shot. His mother was on her way to Warrnambool. He received a couple of calls subsequently, one being around midnight. He also thinks that she rang when she arrived at Westmere.
243 On Friday, 30 May, Mr Ellison drove from Deniliquin to Westmere and believes that he spoke to his mother a couple of times during that trip. On Saturday, 31 May, he, his mother and Holdsworth got up early, Holdsworth and Mr Ellison loaded two and a half round bales of hay onto the back of his ute, along with his motorbike, and the trio then drove to Framlingham. At Framlingham, some hay was unloaded and the cattle mustered, including some in the bush area. Rounding up the ones in the bush took a while because they were in small mobs spread throughout the bush. Mr Ellison's observation was that the feed in the bush was very good. There was long green grass at the beginning of the forest and lots of native grasses throughout. He was dumbfounded that the cattle should have to be moved, but was told that Nicholls had threatened Holdsworth that he was going to shoot them if he did not move them. He was bewildered because he had done a lot of driving from Bairnsdale through to Warrnambool, and up as far as Carrathool, and this was the only place that he had seen in a long time that was sustainable for cattle. His recollection is that there were about 180 dry cows, weaners and calves that were brought out of the bush. Ultimately, on the Monday, he went out and had one last look. He brought in a couple more cattle and was then satisfied that there were no more partnership cattle left there. Four truckloads of cattle were moved to Westmere, these being loaded by going up the ramp.
244 Shown a photograph on page 4 of Exhibit X, Mr Ellison stated that the clearings throughout the forest were grassed like those in the photograph. The entire block was full of native grass. In the wooded areas, there were more native grasses, but there was feed all the way through the block.
245 Mr Ellison stated that the conditions around Carrathool in 2003 were extremely tough. Ultimately, the stock routes ran low on feed and water. He remembered his mother telling him that it was difficult to find any agistment or a place to house the cattle. It was the worst drought in 100 years. He had no reason to doubt that.
246 In relation to the grass in the paddocks at the front of the property, Mr Ellison stated that it was green, but short. It had been heavily grazed. The cattle were feeding on the grass. He stated that he knew this because the animals were in good condition, considering the ordeal that they had been through. He also saw some of them eating in the bush block. He would not agree that the cow shown in photograph 36 of Exhibit H was emaciated. Shown the cow in photograph 47, he said that, given her condition and the available feed, if she was down, there was something else wrong with her apart from malnutrition.
247 He also pointed out that a cow with a calf finds it very difficult to put on weight. Driving through drought areas in Bairnsdale, he saw cattle that looked like those in photograph 47 every day. In answer to a question of mine, Mr Ellison said that the cattle that he got out of the bush and took back to Westmere did not have any red paint on them. There was no re-examination.
248 I found Mr Ellison to be a credible witness. Given the circumstances, he could not be described as being independent, but I have no difficulty in accepting his evidence.
249 Mr Gapes is a transport operator. He is a neighbour of Mr Doukas, who had previously given evidence. He was contacted and asked to provide hay to the Framlingham property, and did this twice. On the first occasion he saw cattle close to the yards and also saw vehicles, including a Tesbury truck. Nicholls came and saw him, and Mr Gapes then unloaded the hay by hand, which took a while. There were a group of men working in the yards with the cattle. One thing that Mr Gapes specifically recalled was that one cow jumped the cattle yard fence. It was heading away, but someone rounded it up. Mr Gapes said that he had some experience, including recent experience, with drought areas. The cattle that he saw at Framlingham looked to him to be "a hell of a lot better than ... where they'd been" - see T1205. In 2003, he had taken hay on almost a daily basis from the Warrnambool district to northern Victoria and southern New South Wales. He considered that the cattle at Framlingham were "on the improve" compared to cattle that he had dealt with and seen in northern Victoria and southern New South Wales at that time.
250 Mr Gapes was not cross-examined. I accept his evidence.
251 Mr Byrne worked at Tesbury for approximately four and a half years, commencing as a labourer before ending up being foreman on the skinning floor. He described the skinning and subsequent processes that occur at Tesbury. He recalled the animals that came in from Framlingham and saw them as they were processed. He was involved in the skinning. The arrival of the carcasses was something that was in his full view. He did not see any animals with red paint on them. He had to deal with each carcass as it went through the process. His view was that, overall, the animals were in pretty good condition. He believed that they were in sufficient condition that they could have been used for human consumption and, thus, taken to Midfield Meats, where he had also worked. In addition to seeing the animals and their hides, he saw the intestines of the animals, which appeared to have feed in the digestive tracts.
252 In cross-examination, Mr Byrne said that he had left Tesbury on a couple of occasions and done stints at Midfield Meats. He believed that it was in approximately 2007 when he finally left. His longest stint there was approximately two and a half years. In relation to these events, he recalled cows coming in during the afternoon and the chiller was full by the end of the day. He estimated that there were probably 60 in the chiller. He thought that it took two or three truckloads to convey the 60 animals. He did not know Holdsworth. He knew nothing about any prosecution brought by the RSPCA. He had been asked to give evidence on the preceding Friday (23 March), following a conversation with Mr Rentsch. This followed a newspaper report concerning the whole incident. He had been referred to Mr Rentsch by a friend.
253 It became clear that the person to whom he had originally been talking was in fact not Mr Rentsch. He recalled the incident because so many cattle came in. He was reasonably sure that Mr Moloney was one of the people working there at the time. He repeated that he had no recollection of there being paint or identifying marks on the cattle.
254 In relation to the quality of the cattle, Mr Byrne said that they were all right. They were not the best that he had seen, but they were far from the worst. He repeated that every cow that came in had to pass by him. On this day, he did the briskets and heads, and helped push the carcasses into the chiller. He did not do the gutting. That was the next step. He could not recollect seeing any carcasses that had already been opened up. He repeated that the cattle carcasses looked healthy, but he would not say that they were well beefed up. The cattle were not so marked and were not as emaciated as those shown in photograph 30 of Exhibit H. He agreed that the cow shown in photograph 36 was in very poor condition and would not have gone to Midfield Meats. He also thought that the cattle shown in photograph 30 would not be of the type that was fit for human consumption. His estimate was that, if they had done 60 cows that came in, some 8 or 10 were in poor shape and the rest were in good shape. He did not recall seeing cows that were in as poor a condition as that in photograph 36. Cows shown in photographs 22, 23, 24 and 37 were also in poor condition, but the majority of cows that came through were not in such poor condition. The same could be said of the cows in photographs 43 and 47. Referring to the cows in photograph 30, he said that, whilst they were in poor condition, they were up and about and it would not take them long to come good.
255 There was very little re-examination of Mr Byrne, although he described the animals, as seen in photograph 31 of Exhibit H, being cows in the race, as being "just average" - see T1635. Mr Byrne also struck me as a reasonably credible witness.
256 Ms Young's evidence solely related to a previous incident, or chain of incidents, involving Nicholls. Her evidence, which was limited, followed my Ruling in relation to tendency evidence. Whilst I have no doubt that it was given in good faith, her evidence does not advance matters any great distance.
257 She first had contact with Nicholls in 1996. Shortly thereafter, she made complaints concerning him, some of which were directed to the RSPCA.
258 Ms Young said that her complaint made to the RSPCA had been about the behaviour of Nicholls generally and the fact that he appeared to have unlimited power. Her complaint included reference to his making an appointment and then breaking it. It also related to his manner and behaviour over the telephone and the like.
259 Ms Young, on behalf of her mother, made further complaints to the Department of Agriculture. Prior to a meeting which had been arranged, she made approximately five complaints over the telephone to the RSPCA about Nicholls. These complaints concerned both shot and missing cattle.
260 Ms Young was cross-examined. She had with her a copy of the complaint that she had made in writing to the RSPCA concerning Nicholls (although it seems to have been addressed to him). However, this letter seems only to have complained about one aspect of his behaviour. The other complaints were made over the telephone. The letter, whilst referring to earlier spoken communications, effectively does not mention a specific complaint against Nicholls. She said that she had gone to very significant lengths to resolve the problem that existed both with Nicholls and with the situation. In relation to the telephone complaints, Ms Young said that she effectively spoke to whoever answered the call. She agreed that her mother, who was the owner of the cattle in question, was later charged with a number of offences to which, ultimately, she pleaded guilty. It followed some negotiation concerning the charges.
261 In re-examination, Ms Young stated that Nicholls had been abusive. He had also been "waving his arms and muttering and doing all sorts of strange things, which I thought were inappropriate..." - see T1674. He appeared to be very agitated. When Ms Young had rung the RSPCA complaining of the trouble that they were having with an inspector, she identified who the inspector was. She made it clear on the day that cattle were being put down unnecessarily. As stated, in my opinion the evidence of Ms Young had little or no impact upon the outcome of this case.
262 Mr Sutherland is a farmer and cattle breeder from Thologolong in north-eastern Victoria. His family were the foundation breeders of Murray Grey cattle. Mr Sutherland was on the first Board of the Murray Grey Society and has been involved with it since. He has also been very successful in the showing of such cattle. He has also judged them at Royal Shows. Mr Sutherland said that Holdsworth had been the 200th breeder in the society.
263 He also described how calves could be registered with the Society by means of provision of the required details. It should be said that a considerable amount of Mr Sutherland's evidence related to commercial matters and the area of possible damages. In any event, he also commented upon Holdsworth's long involvement with the Cloverdale bloodlines. He was also familiar with the breeding lines of the Murray Grey cattle that Ellison had. In 2000, Ellison had purchased a bull from Mr Sutherland. He was also familiar with bulls which he had sold to the partnership. Mr Sutherland, in cross-examination, was shown two photographs from Exhibit H. He thought that one could be a bull that he had sold, but it was in very light order and condition. He also said that he would be amazed if a Murray Grey breeder could not recognise that the animal shown in one of the photographs was a bull, this being a question directed to the fact that Holdsworth had difficulty in this regard.
264 In relation to the bull shown in photograph 10 of Exhibit H, Mr Sutherland described the animal as being in very light order, whilst also saying that it was very hard to judge the bull the way he remembered him. He also stated that the grass shown in that photograph was very low, but was quite green. In drought time, there is no green feed whatsoever. In relation to photograph 10, whilst the bull was in light condition, Mr Sutherland considered it to be in strong condition. He said, in essence, that drought does that to bulls, but that the spine of the animal had not dropped down, which is something that is seen in drought conditions. Whilst the bull in photograph 10 was "pretty hollow", he was still fairly level in the back. The animal depicted in photograph 44 had dropped in the spine, but there was a calf that was pulling that cow down. Mr Sutherland described it as what was being seen in Queensland at the moment. He also observed that a drought cow would get in calf as soon as there was green feed.
265 Mr Sutherland thought that the cow depicted in photographs 4 and 5 of Exhibit H was "a pretty good Murray Grey cow". His overall impression was that all of the cattle that he had seen in the photographs "needed a good feed". The cattle appeared to be in light order. He agreed that if a cow was down, could not get up and was thrashing, it would be put down. The cow in the photograph in question might have had bad feet, which would have been a "big cause" to the demise of the cow. The calf in the photograph was very good. If the mother had died or was put down, it would not be necessary to shoot the calf.
266 I should say that Mr Sutherland (who was also deaf, which again created some confusion) was obviously an authoritative witness in relation to Murray Grey cattle. It is not difficult to understand why he is apparently known as "the legend up the river" - see T1922. However, he was also a very likeable and engaging witness. I have no difficulty whatsoever in accepting his evidence. Given the nature of his evidence, I see no need to divide it up into evidence-in-chief, cross-examined and re-examination.
267 Transcript of the evidence given by the late Mr Kirkland to the Ballarat Magistrates' Court in 2005 was placed in evidence. There was no argument but that Mr Kirkland has died. Whilst a transcript of his testimony has been placed in evidence, I shall bear in mind that he, for obvious reasons, has not been the subject of cross-examination in this case, although he was cross-examined at Ballarat.
268 The transcript of Mr Kirkland's evidence could be summarised as follows. He grew up on a farm and had been in contact with cattle for the greater part of his life. He had worked in the meat industry for some 18 years and had been the supervisor leading hand as well as a stockman in sale yards and abattoirs. In May 2003, he was working for Tesbury and was still there as at the date of giving evidence in 2005. In May 2003, he had been the leading hand and supervisor of the skinning floor. He remembered the large number of Murray Grey cattle that came in and were processed. He saw them as soon as they were delivered and also whilst they were being processed. Part of his work as supervisor of the skinning floor involved him in going from position to position. His description of the condition of the cattle was that they seemed to be in "pretty good nick", although they might have been a little skinny, which was not unusual given the drought.
269 Mr Kirkland felt that the cattle were in a reasonable condition, and questioned why they had been brought in. There was no indication that any had been in desperate need of veterinary treatment. He was shown photographs. The condition of the cattle shown in them was consistent with what he had seen.
270 The cattle in question had grass in their stomachs. In the opinion of Mr Kirkland, the quality of the meat seen was that it was fit for human consumption and much the same as cattle which he used to export to certain overseas countries.
271 In cross-examination at the Ballarat Magistrates' Court, Mr Kirkland stated that when the carcasses arrived, he did not know whose cattle they were. He also referred to the fact that cows get thin during drought times, particularly when they have a calf at foot. He stated that he knew the condition of the meat on the animals, but not on every beast. He had seen the animals being slaughtered. He stated that he did not know Holdsworth, but had met him in the foyer, and also met Ellison there.
272 Although Nicholls was not the first witness called on behalf of the RSPCA, I shall deal with his evidence at the outset, as he could be described as the principal witness or protagonist on behalf of the RSPCA.
273 Nicholls is now a compliance officer employed by the Benalla Rural City, but in 2003 he was an inspector employed by the RSPCA. His background is that he obtained a Bachelor of Arts in Humanities in Bendigo before obtaining a Graduate Diploma in Education at Melbourne University. He commenced working for the RSPCA in 1992. He had grown up on a relatively small farm near Benalla.
274 Upon being employed by the RSPCA, he underwent a traineeship and was then appointed an inspector. He was initially based at Burwood but, after approximately two years, was appointed to the position of inspector at Geelong, this being in approximately 1994 or 1995. His daily work involved his attending to animal cruelty complaints. He was also on a number of animal ethics committees as a representative of the RSPCA.
275 In relation to what occurred at Framlingham, he believes that a complaint was passed on from the Melbourne office, and his vague recollection was that it was to do with starving cattle. As a result of this, in May 2003, he went to Framlingham. Upon arrival, he noticed the cattle in a large paddock "on our left" - see T2509. He did not know who owned the property. Roberts, who was a probationary inspector, was with him.
276 Upon arrival, he could see a number of Murray Grey cattle. There were some carcasses in the paddock and the cattle appeared to be in very poor condition. They drove around a bit, and counted about 25 dead animals. They noticed a number of cattle with an emaciated body condition, and there were a number down. The carcasses were not very aged. They also appeared to have been in a very poor condition prior to their death. This was on Tuesday, 27 May.
277 Two cows were down and could not get up, despite attempts made by Nicholls and Roberts. They were laterally recumbent. Nicholls decided that they should be euthanised. He attended to that. One of these animals was the subject of a post-mortem. The other animal on which a post-mortem was performed was put down later when the veterinarians arrived. It had been sitting up against a fence. Shortly after the putting down of the two cattle, Ms Heck from the Department of Primary Industry arrived. Nicholls had not made any arrangements to meet her there. They then drove a short distance into the forest, but it was wet and they did not wish to get bogged. They saw some cattle in there. These were also Murray Greys. No other breeds of cattle were seen.
278 As it was getting late, Nicholls decided to get a veterinarian out to perform autopsies. Nicholls stated that he made no estimate of the number of cattle that were there at this stage, but, on the following day, estimated about 260 head. On the Tuesday, all he knew was that there quite a large number. He had also noticed some dead cattle in a type of dam in the bush. He stated that he had not looked at the photographs for years.
279 After trying elsewhere, Nicholls rang the Warrnambool Veterinary Clinic where he spoke to Dr Irvine. He and Dr Robert Page arrived subsequently. It was actually Dr Irvine who suggested that the cow that was sitting against a fence needed to be put down, it subsequently being used for a post-mortem. Thus, by this stage, there were three cows that had been put down. Nicholls can remember taking photographs on Tuesday, 27 May, but was not certain about video footage. By the time the post-mortem had concluded, it was dark. Following this, they left the property.
280 After leaving, Nicholls spoke to Ms Ryan. She gave him information about who might own the cattle. She provided the name of James Holdsworth and a landline telephone number. Nicholls and Roberts returned to Warrnambool, where they were staying for the night. Nicholls then rang the telephone number that he had been given. He spoke to someone who identified himself as Holdsworth, the call lasting something in the order of 15 to 20 minutes. Nicholls claimed that he asked Holdsworth for confirmation that he was the owner of the cattle at the Framlingham property, but Holdsworth was evasive and would not give him that information. He claimed that Holdsworth stated that the cattle were owned by a business, that he had done some work for them, and that he knew about the cattle and where they had come from - see T2518.
281 He also claimed that Holdsworth stated that looking after the cattle was the landholder's responsibility. He stated that the agistment had been organised through a third party, whose name he could not remember, but that Mr Beard was the farm manager and was responsible for looking after them. Nicholls said that Holdsworth stated that he would ring back with the details of the other person who had arranged the agistment. He repeated that Holdsworth specifically said that he was not the owner of the cattle, but that they were owned by a company. He was uncertain whether Holdsworth gave him the name of the company. It may have been in a later conversation. In any event, he mentioned JA Heath Inland Holdings, of which Nicholls had not previously heard.
282 Nicholls then provided the information about JA Heath Inland Holdings to the RSPCA, seeking a search to identify the people involved with it. He did this on the following day (Wednesday). He believes that he ultimately got that information sometime on Thursday. The result of the search was that the partners in the business were Holdsworth and Ellison.
283 Before leaving Framlingham on Tuesday 27 May, Nicholls had made arrangements to return the following day so as to undertake a better inspection of the cattle and the property. Initially it was just Nicholls, Roberts and Ms Heck who returned. He also stated that, at no stage, had the gates on the property been locked, but, upon arrival, the gates were closed. He was later to say that they always left the gates in the condition in which they found them, namely closed. On the morning of Wednesday, 28 May, they drove around, had a look at the size of the property and the number of cattle, and did a rough headcount in the order of something like 250 to 260 animals. He believes that they put down a couple of calves and a cow, the cow and one calf being moribund. The only way it could be detected that they were alive was because of their eyes. There was no way of saving either of them. Leaving them would just have prolonged their suffering. Nicholls described the putting down of animals as an unpleasant, but necessary, part of the job.
284 Nicholls believed that, on the Wednesday morning, he made some phone calls to try and track down the people, including Mr Rentsch, whose names had been given to him by Holdsworth. Whilst Nicholls could not remember the sequence of events, at some stage he did contact both Mr Beard and Mr Rentsch.
285 When driving around the property, Nicholls ascertained that there was water available. The cows had been let out into the front paddocks, and that is where the overwhelming number of them were. In relation to the front paddock, it was bare, with grass "bowling green" length - see T2522. There was also a lot of manure. There was a mixture of cows, calves and some bulls. All the herd were in poor condition. It was just that some were poorer than others. Some were emaciated.
286 Nicholls stated that the difficulty that he had at this stage was in establishing someone to take custody of the animals and control of their welfare. He was not in a position to be able to provide sufficient feed or to seize them. He was looking at getting them through the next week. After discussion with Ms Heck and Dr Irvine, it was determined that what was needed was to properly assess the whole herd. Nicholls also said that on that day, after Dr Irvine arrived, "We actually went around with him and he directed me to shoot a number of other cattle as well" - see T2523.
287 It would seem that, before Dr Irvine arrived, Nicholls went around making observations as to specific animals that were in such a state that they needed to be put down immediately. He said that, whilst in a perfect world there were always other options, he had none at the time and felt that the main option was to destroy the animals.
288 Nicholls was then shown a brief video which had apparently been taken by Roberts whilst they were driving around. He commented that the pasture was heavily contaminated with manure. However, this is not necessarily a major problem if adequate supplementary feed can be given. As far as he could tell, there had been no harrowing on the property. There was very little natural fodder available and no sign of any supplementary feed having been provided. His opinion of the grass was that it simply was not long enough and there was not enough of it. It was like a bowling green. Samples of manure were also taken.
289 It was also Nicholls' recollection that Dr Irvine and himself put down three cattle on the Wednesday morning. Nicholls thought that seven cows had been put down on the Wednesday. The assistant veterinarian, Dr Page, did not return after assisting with the post-mortems on Tuesday.
290 Nicholls said that his opinion was then, if he could get no confirmation from Holdsworth about the custody of the animals and what he was going to do with them, or who the owner was, a large number of those that were not viable needed to be culled and concentration would be on the ones that they thought were recoverable. I might say that Nicholls was using the word "we" in relation to this decision-making and the putting down of animals. As shall be seen, Dr Irvine was reasonably definite in his evidence that he was, in essence, taking instructions from Nicholls. Indeed, Nicholls went on to say that cows that were put down were so put down on the direction of Dr Irvine - see T2530.
291 Nicholls said that it was then decided by Dr Irvine and himself that they would revisit on the Thursday and yard up the cattle. Dr Irvine would get a stock agent to assist him and each animal would be assessed for viability. Those that Dr Irvine deemed to be not viable would be destroyed and they would try to feed the remainder through the following week and then review the position. Nicholls also said that the remaining cattle, after the culling, were going to be fed again on the Sunday and, "We were coming back on the Tuesday and then, if there was still no resolution, we were probably going to destroy the rest of them" - see T2531.
292 Nicholls said that he had no conversation with Holdsworth on Wednesday, 28 May. He contacted Tesbury concerning collection of the deceased cattle. Nicholls thought that he had attempted to ring Ellison, having been given her number by Ms Ryan, and believes that he left a message when he could not speak to her. He spoke to Mr Rentsch on the Wednesday. He believes that he might also have spoken to Mr Beard.
293 Nicholls was then taken through the photographs in Exhibit H. He identified some cows that were already dead when the photographs were taken on 27 May and some that he put down. I shall not go through them all. Suffice to say that the cow shown in photograph 2 was in what Nicholls described as a classic emaciated state from which it would not recover. He disagreed that it could have been sick from eating bracken. He thought that the cow in photograph 4, which was one that he shot for post-mortem purposes, was also emaciated and in external recumbency. Nicholls said that, from memory, when moving in and around the property he saw two bulls. He was unaware of any cattle getting out of the property whilst he was there. As far as he knew, no live cattle were taken from the property. He believed that the bull in photograph 10 was ultimately put down.
294 In relation to the cow and calf in photograph 24, Nicholls said that it takes a period of time for animals to get into that state and that they would have been in poor condition 14 days previously. He also stated that he could not see any marks of sod-seeding either on the video or in photograph 26. He could not recall seeing marks of sod-seeding, as seen in a photograph in Exhibit X. Nicholls also said that the state of the grass in the forest around the plastic troughs was non-existent.
295 In relation to the red marks on some cattle, Nicholls said that none had marks on them when he originally arrived, but marks were placed on them by the stock agent (Mr Kelly).
296 Nicholls was then asked to go through the selection process pursuant to which the cull took place. They were putting to one side cattle that "we believe are not viable in the short term without radical intervention" - see T2551. These were selected by the veterinarian and the stock agent, driven up into the race and destroyed by the Tesbury workers. The decision as to whether or not the cattle would be put down or survive was made by Dr Irvine. Nicholls instructions to him were to select those that he did not believe were viable in the short term. Nicholls had also organised for a number of large square bales of hay to be delivered later on Thursday afternoon, and this in fact happened. As shown in photograph 31 of Exhibit H, the cattle which were driven into the race were the ones that had been selected for destruction. They were destroyed and dragged onto the Tesbury truck. The others were let out back into the paddock. Nicholls repeated that there were two bulls, and he believed that they were both put down. Nicholls also stated that the red marks were only put on by the stock agent, but there would have been other cattle that would have been put down "on the say-so of the vet that may not have a red mark" - see T2553. This does not appear to me to sit particularly well with the description subsequently given by Dr Irvine and Mr Kelly of the process, nor, to some extent, with the earlier description of it by Nicholls.
297 Nicholls identified a cow which he had shot in photograph 45. He believed that the cow in photograph 48 was already dead when the photograph was taken. The cow in photograph 49 was one that was put down for purposes of the post-mortem.
298 Nicholls repeated that, on 29 May, no gates were left open. He also said that no transport vehicles arrived in his presence. No alteration had been made by him to any fencing or gating. No live cattle left the property and he did not allow any person onto the property. He gave no authority to anyone to do anything on the property in his absence.
299 In relation to conversations with Holdsworth, Nicholls said that he spoke to Holdsworth twice on the Tuesday evening (27 May) and once on the Thursday afternoon (29 May). He rang Holdsworth on the evening of 27 May after he had received the phone numbers from Ms Ryan. The content of the first phone call has already been discussed. In the second conversation, Nicholls said that Holdsworth told him about the identity of the person who had organised the agistment (Mr Rentsch). Holdsworth also said that he had to go away to Griffith and he would not be contactable. Nicholls should speak to Mr Rentsch and to the owners of the Framlingham Trust.
300 Nicholls had attempted to ring the Bairnsdale number which he had been given by Ms Ryan on Wednesday, 28 May. He also believes that he made a phone call to Holdsworth's number. He spoke to someone at Ellison's number and asked if they knew Holdsworth, the answer being that he was a friend of the family. Nicholls said that he left a message requesting Holdsworth to ring him. He believes that he also made a couple of attempts to contact Holdsworth on the mobile telephone number which had been given to him by Mr Rentsch. However, there was no answer or it was not in service.
301 On the Thursday, Nicholls again rang Holdsworth's mobile phone. He tried several times to reach him, but was not able to speak to him until approximately 5pm, when Holdsworth rang him. It was a short call. At the time, Nicholls was at the cattle yards. Holdsworth wanted to know what was going on. Nicholls told Holdsworth that, "We culled out a number of head of cattle, and he told me that there'd been an injunction taken out against me and that I wasn't - I was to stop doing what we were doing" - see T2560. Nicholls knew nothing of any injunction. He again asked Holdsworth who was the owner of the cattle and Holdsworth said that they were owned by JA Heath Inland Holdings. Nicholls asked if Holdsworth was a partner of that business or one of the owners of it. Holdsworth said that he was. Nicholls again stressed the need to take urgent action in relation to the provision of feed to the remaining cattle. He pressed Holdsworth "again" for a commitment as to when he could attend the property, and Holdsworth said that he would try to get there on the Friday.
302 Nicholls then specifically said that, prior to such call, he had never heard any suggestion that Holdsworth would plan to come on the Friday. This conflicts with the evidence of Mr Rentsch. Nicholls added that, until that point, he had no confirmation that Holdsworth was the owner of the animals, or not "from him anyway" - see T2561.
303 After receiving the information that Holdsworth was coming on Friday, 30 May, Nicholls believes that he spoke to Dr Irvine and to Roberts. As he still did not know what was going to happen, he continued to organise for a hay drop to be delivered on Sunday, 1 June.
304 Nicholls believes that he was the last to leave on Thursday, 29 May. He shut the gates when he left, which was at about 5.40pm. He believes that he might have spoken to Holdsworth again on the following day, but was not sure.
305 Nicholls was then taken to the telephone records. Those records show the numbers from which calls were made in relation to persons other than Nicholls. For Nicholls' mobile phone, the number shown is that to which, as opposed to the number from which, calls were made. Nicholls effectively agreed that the first call which he made to Holdsworth lasted for 23 minutes and 57 seconds. The return call made to him by Holdsworth was for some 17 minutes and 48 seconds. Nicholls could also recall speaking to Mr Beard on Wednesday, 28 May. He also identified the call to the Bairnsdale number, where he left a message, on this occasion saying that it was a woman to whom he spoke. Whilst no contact was made on the Wednesday, Holdsworth rang Nicholls on his mobile phone at 5pm on Thursday, 29 May, and spoke to him for 9 minutes and 13 seconds.
306 Nicholls visited Westmere on the Tuesday or Wednesday of the following week. He went via Framlingham. There were no Murray Grey cattle there. He saw cattle that he believed were from Framlingham at Westmere.
307 Nicholls was asked whether any of the cattle, absent an owner, were able to be kept alive. He said that:
"It's always difficult...There's always the possibility that you could keep them alive, given unlimited resources...There were...A lot of those cattle that I don't think would have survived no matter what you did to them, but there obviously were some that could have survived if you weaned off the calves, provide them with intensive veterinary treatment - it may have been possible - but given the fact that we had no owner, one of the options is to euthanise them, and that's the option that I believe was the most practical and most reasonable option given the circumstances that we found ourselves in." - see T2570
308 Nicholls said that the decision was also taken, "Given the fact that I wasn't going to be able to revisit the property over the weekend to deal with any further cattle going down and becoming recumbent". Thus, he believed that the decision was the appropriate one for cattle that were not viable in the short term. He also said that, given his discussion with Holdsworth on the Thursday, he had become "a little bit" more confident that he had "found someone who would take responsibility/ownership of the cattle" - see T2571.
309 Prior to being asked whether he was a shareholder or partner in JA Heath Inland Holdings, Holdsworth had not admitted to any ownership of the cattle. Nicholls also said that the veterinarian did not think that the cattle were fit to travel (a proposition in direct conflict with the evidence of Dr Irvine). There was inadequate feed. Therefore, the option was to destroy the remaining cattle. To engage in a feeding program would not have been Nicholls' decision because of the amount of resources required. The RSPCA did not have facilities for looking after cattle in these numbers.
310 Nicholls said that the ramp was not used whilst he was there, nor was he aware of a mat being in position. In answer to a question of mine, Nicholls said that he was not aware of a phone call of some length between himself and Holdsworth on Tuesday, 3 June at 12.40pm. Apparently in this discussion, apart from some discussion of the cattle, Nicholls booked a date for a record of interview with Holdsworth at Warrnambool on 17 June. In relation to this, Nicholls agreed that he did not turn up because he had made several attempts prior to that day to confirm the booking with Holdsworth, but Holdsworth would not return his calls to confirm it. He further said that he believed Tesbury collected all deceased cattle that had been put down on the property, save for the two post-mortem cattle.
311 The cross-examination of Nicholls was very lengthy. As Nicholls is a key witness, I have gone into some detail in summarising his evidence-in-chief. I now turn to his cross-examination.
312 Mr Langslow took Nicholls to an incident in July 1999, when he had been shot by a farmer and sustained physical injuries. He was in fact shot at three times, this occurring prior to the events in question in this case. The person involved was arrested and charged with attempted murder, but died in custody prior to a trial. The shot that struck Nicholls effectively shattered his jaw. I might say that the point of this line of cross-examination was, in essence, that, following the shooting, Nicholls may not have been psychologically or psychiatrically equipped to carry out the work of an inspector for the RSPCA, particularly in situations involving any hostility.
313 In any event, Nicholls stated that, following this incident, he was not treated by a psychiatrist, but had some counselling sessions with a psychologist. He was also taken to a claim that he had made in relation to what occurred. In particular, he was taken to a letter of 8 July 2002, which he had written to the State Director of the RSPCA, Mr Peter Barber, in which he described the incident in some detail, saying, inter alia, that it took months, even years, for him to recover psychologically. There was reference to bouts of depression and Nicholls suffering from what was described by his psychologist as a post-traumatic stress syndrome. He further said in the letter to Mr Barber that he was still finding it difficult at times, especially when working and having to front up to people whom he knew were going to be hostile, or having to enter paddocks on rural properties. He referred to sometimes breaking out with sweat when he approached a property, but he would deal with it. He referred to having undergone emotional turmoil - see T2583. In the letter, he said in essence that it was impossible for him to forget this event, and he was being constantly reminded of it.
314 In relation to notes that he took, Nicholls said that he did not always make them at the time. It would depend on whether he had his log book with him. He agreed that, after the events, he had visited Westmere without informing Holdsworth that he was so doing. That trip was basically "a reconnaissance" to try and find where the cattle had been relocated. He made no attempt to attend at Holdsworth's house. He said that he would prefer to conduct any interviews with Holdsworth at the police station. He said that he would not go to Holdsworth's house without a police presence for reasons of security.
315 Nicholls agreed that he had organised for Mr Keys, the animal welfare officer, to attend at the Westmere property and subsequently obtained a report from him. Nicholls agreed that Mr Keys said that, on inspection, he found all cattle to be in a satisfactory condition, whilst some were light with a condition score of 1. Mr Keys had said that this was understandable in the prolonged period of well-below average rainfall and pasture growth. However, he found not one animal that was emaciated or moribund, or sufficiently poor to require later re-assessment. He also said that he had arranged for Mr Keys to attend "given that we were involved in criminal proceedings in relation to this matter" - see T2595.
316 It was then put to him that, at that stage, he was not involved in criminal matters and that he had not issued proceedings in relation to it until after Holdsworth and Ellison had commenced civil proceedings effectively against him. Ultimately, he agreed that, by the time he commenced criminal proceedings, Holdsworth had already issued proceedings against the RSPCA in relation to what Nicholls had done.
317 In relation to Nicholls' failure to keep the appointment at Warrnambool Police Station on 17 June, he agreed that the arrangement had been made at least a couple of weeks previously. It was incorrect that he was not prepared to face Holdsworth. He repeated that he had made several attempts to contact Holdsworth to confirm the booking, but no return calls had been received. He also said that Holdsworth had not rung him on 17 June when he, Nicholls, failed to attend. The messages he had left with Holdsworth had been on his own telephone. When it was put to him that he could not have left messages because Holdsworth did not have an answering service on his telephone, Nicholls said that the messages may have been left with other people, but he did not know what other people, when he had rung and left messages, or, effectively, what telephone he had used, although he said that it was probably the office phone. Whilst this issue is not an absolutely pivotal one, I might say that I found Nicholls' evidence concerning the arrangement to meet at the police station, and his failing so to attend, somewhat unsatisfactory and unconvincing.
318 In relation to events on Friday, 30 May, he had no information to suggest that Holdsworth was in the Warrnambool area on the morning of that day. He was aware that Holdsworth was alleging that there were some missing cattle. He had returned to Geelong on that day, going past the Framlingham property. He did not believe that he had two telephone conversations with Holdsworth. He could not recall the earlier call being interrupted by the presence of police in Camperdown.
319 In relation to the telephone discussion of 27 May, Nicholls stated that he had told Holdsworth what had been done "up to that point", this presumably including the shooting of some cows. However, he did not make a note of telling him that. He denied that an arrangement had been made to meet Holdsworth on Friday, 30 May. He denied that he liked killing animals.
320 In relation to his phone conversation with Mr Beard, Nicholls said that it was mainly about who was responsible for the cattle and who was looking after them. He said that he spoke to Mr Beard at some length, but was uncertain whether that was on the phone or in person. He agreed that his notes of his 40 minutes of conversation with Holdsworth represented just a fraction of the conversation that took place, but said that they were "the important bits" - see T2606. He was then again pressed as to whether the absence in the notes of any reference to shooting animals must have meant that he regarded that as unimportant. He was told that they were stud cattle from New South Wales and had been in the "long paddock", but did not make a note of it at the time. He also said that Holdsworth did most of the talking.
321 Nicholls also agreed that, after he had received the report of Mr Keys, he nevertheless issued a document called a "Notice to Comply". However, he denied that he was still exercising some sort of control over the cattle. He said that he had queried whether Mr Keys actually saw the same cattle, stating that there were cattle on several different properties "up that way". Nicholls was pressed about the point that the Notice to Comply appears to have been drafted 21 days after it had been organised for Mr Keys to go and conduct an inspection and three weeks after Nicholls had last seen the animals. He thought that would be unusual.
322 Nicholls then stated that he had said to Holdsworth specifically that he was not to move the cattle because, in the opinion of the veterinarian, they were not fit to be moved (Dr Irvine effectively said the opposite). He denied that he told Holdsworth to get the cattle off the property by the Tuesday (3 June) or he would destroy the rest (although I would refer to his earlier evidence that, "We were coming back on the Tuesday and then, if there was still no resolution, we were probably going to destroy the rest of them" - as earlier stated, see T2531). He also denied that he had said that the matter had to be finalised by the weekend. He repeated that the central point, as far as he was concerned, was whether Holdsworth told him that he was the owner of the cattle. Nicholls said that the fact that Holdsworth did not explain[ed?]remove? all of[?] his (Nicholls') other actions taken between 27 May and 29 May. If Holdsworth had told him during the phone calls on the Tuesday night that he had to go to Griffith but would be back and at Framlingham on the Friday afternoon, Nicholls would not have taken the action that he did - see T2615.
323 In those circumstances, if Holdsworth had turned up on the Friday afternoon, Nicholls would have met him at Framlingham and discussed what action was appropriate, ascertaining whether Holdsworth would comply with that. However, Nicholls again repeated that the only time Holdsworth ever admitted ownership of the cattle was:
"When I prompted him in that conversation on the Thursday afternoon about whether he was proprietor of the company. Right up until then he was still saying they were owned by JA Heath Inland Holdings and it was only when I said to him 'are you a proprietor of that company or that business' that he said, 'yes I am'. That's the first time he admitted to me that he was the person in charge of those animals." - see T2616.
324 In relation to the complaint received which provoked the investigation, Nicholls' only recollection was that it was about starving cattle. He said that the property was divided into two paddocks by a fence. The cattle could move into either paddock. He agreed that he had assessed the area at about 80 acres (I accept that the accessible area was in fact some 300 acres). He stated that there was no access for the cattle into the area to the west of the driveway. However, he was then unsure as to whether or not there were double gates. He did not agree that the cattle could move freely backwards and forwards between the land on both sides of the driveway. He did not examine the land on the western side of that driveway. There were cattle in there that were not Murray Greys.
325 In relation to the video taken as they drove around, Nicholls said that there were carcasses on the property, but agreed that only two were shown on the video. He believed that there were about 25 carcasses, but he did not take photographs of all of them. Taking photographs of carcasses was not a high priority. Nicholls agreed that, from the outset, this was an investigation with a view to prosecution.
326 In answer to a question of mine, Nicholls agreed again that, if he had known that the owner was coming on the Friday, a different course of action would have been followed. He stated that, "...We would have just attended on the Wednesday and Thursday and destroyed those animals that were in immediate need of being put down...". He went on to say that the reason that they followed the course of action which they did on the Thursday was because they did not have an owner who was taking responsibility for the cattle. He said that:
"...If I'd been satisfied that he was coming on the Friday and was going to take responsibility for them and provide feed and what have you coming forward, then I would've just gone there and done that piecemeal, inspections on the Wednesday and Thursday and destroyed animals that required it at the direction of the vet, and then we would have dealt with it on the Friday with Notices to Comply and constant vet monitoring..." - see T2626 and 2627.
327 Nicholls went on to say that he knew that they would not be in a position to be able to inspect the animals on a Saturday or Sunday and he was not prepared to leave animals there, potentially down and suffering, over the weekend. The difficulty of inspections on a Saturday or Sunday was that there was no one available. He denied that Dr Irvine was available and had been out there on the Saturday and Sunday. Nicholls said that he could not remember Dr Irvine giving him some sort of undertaking to drive past. However, he had some recollection of Dr Irvine ringing him and describing people or vehicles at the yards, his vague recollection being that this was on the Sunday. Nicholls had not given Dr Irvine any instructions to do anything on his own (this does not sit particularly comfortably with the evidence of Dr Irvine).
328 Nicholls agreed that, as a result of the business name search of JA Heath Inland Holdings, he may well have had Holdsworth's name and address by Thursday, 29 May. He was able to send a Notice to Comply.
329 In relation to the appointment on 17 June at Warrnambool Police Station, Nicholls agreed that, having made the appointment with Holdsworth, he did not actually speak to him prior to that date. Nicholls agreed that a date had been made for that appointment, but said that a time had not. He did not dispute the fact that Holdsworth had waited all day at the police station for him.
330 Returning to the phone conversations of Tuesday, 27 May, he agreed that Holdsworth had told him of the identity of the person who had organised agistment at the Framlingham property. However, this did not necessarily mean that Holdsworth was the owner. He simply knew a lot about the owner and the cattle. However, Nicholls continued to deny that Holdsworth had said that he was a part owner of the animals. He agreed that Holdsworth had said that he would ring back, and in fact did so. Nicholls agreed that it had been a lengthy conversation and Holdsworth had not been rude to him. Nicholls continued to assert that Holdsworth had not been forthcoming about the true state of affairs in terms of who owned the cattle. He agreed that Holdsworth had given him the name of Mr Rentsch. Holdsworth also mentioned Mr Beard. Nicholls also stated that Holdsworth sounded as if he had been desperate to find somewhere to agist the cattle.
331 In answer to a question of mine, he said that he did not know whether such a statement by Holdsworth made him sound more involved than someone who just did some work for JA Heath Inland Holdings. He agreed that Holdsworth had given him details of people to whom he could speak about feeding and other details. Nicholls agreed that, on the evening of 27 May, Ms Ryan had told him that Holdsworth had given her telephone numbers and asked her to ring him if there were any problems with the cattle. Ultimately, Nicholls agreed that all these factors indicated that Holdsworth was the proprietor of the cattle. He could not remember if he asked Holdsworth the direct question, "Are you the owner of the cattle?" However, he denied that Holdsworth had said that he was a part owner.
332 In relation to trying to contact Holdsworth, Nicholls said that he was not sure whether Holdsworth had told him that he would be in Griffith on Thursday, but had told him that he had to go away for business and would not be available. He then said that he had spoken with other people and was firm in his view that Holdsworth was the person to speak to - this was confirmed in his mind. This is in the context of phone conversations on Wednesday, 28 May. He then asserted that Holdsworth had told him that he would not be at Westmere on Wednesday, 28 May - see T2642. Why Holdsworth would say this is something of a mystery. It is to be remembered that he was essentially in attendance at Westmere all day doing cropping work.
333 Nicholls also said that Holdsworth was aware of the fact that he was about to start destroying animals because he had told him that on Tuesday, 27 May. He stated that Holdsworth had used words to the effect that Nicholls had better be careful if he was going to do such a thing. Nicholls confirmed that he had already told Holdsworth that he had destroyed some animals. In answer to a question of mine, Nicholls said that he treated Holdsworth's words concerning being careful as a veiled threat.
334 It was put to Nicholls that, in relation to the carcasses, he actually knew who owned them. He answered in the affirmative. He also agreed that he did not have the consent of the owner to give the carcasses away. He believed that the cattle which were put down were suffering from a period of extended malnutrition, which entailed suffering. It was put to Nicholls that he believed that it was necessary to put certain animals down on the Thursday because it was not appropriate, in all the circumstances, to wait until Friday. He agreed with this proposition. He also agreed that he had to be back in Geelong for the weekend. He then went on to say that he probably could have stayed in Warrnambool for the weekend. Roberts probably had to go back to Melbourne. On Thursday, 29 May, Nicholls believed that he left Framlingham at approximately 5.40pm.
335 In relation to his activities when the cattle were being mustered on Thursday, 30 May, he stated that he assisted in putting them into the yards and moving them through to where they were examined by the veterinarian. He also said that he put down a couple of animals that went down in the yard and made a couple of phone calls. He was on foot during this time. He recalled speaking to Mr Rentsch, but was not sure exactly when and where. Nicholls also agreed that, on Tuesday, 27 May, he drove a short distance into the forest, but subsequently did not go there again. Roberts went in to have a look at Nicholls' direction. After some lengthy cross-examination, Nicholls agreed that he and Roberts subsequently had driven through only a portion of the forest area.
336 When shown some photographs from Exhibit X, he disagreed that the amount of grass seen was on the property when he was there. He also thought that the marks shown on the ground were more likely to be from harrows than from sod-seeding. When shown more photographs, Nicholls could not recall whether there were two sets of double gates on either side of the drive in 2003. He had no reason to dispute that. However, he disputed that there was free access to the land on both sides of the drive through double gates. The Murray Grey cattle were confined to the east of the driveway and the forest. Cattle of a different breed were on the western side.
337 Nicholls agreed that he spoke to Mr Rentsch at the yards when Mr Rentsch arrived. Mr Rentsch subsequently returned with a piece of paper with the phone number of Holdsworth written on it. Whilst he could not remember some things, Nicholls recalled Mr Rentsch going away, coming back, saying that he had spoken with Holdsworth, and that Holdsworth wanted Nicholls to ring him. When he rang Holdsworth, he got some type of automated answering service. He did not get a busy signal.
338 Nicholls agreed that he had been told Holdsworth was in Griffith and awaiting his call, but he did not try more than once to ring him. Holdsworth ultimately rang back about 5pm after the culling had been done. He agreed that, at the time of making the one attempt to ring Holdsworth, Nicholls believed that the animals belonged, at least partially, to him - see T2673.
339 Under further questioning, Nicholls agreed that he could have persisted with his attempts to ring Holdsworth - see T2675. He also agreed that he was the person in charge on the property in relation to assessing all the animals. It was his call.
340 When it was put to Nicholls that the cost of having veterinarians and others present for the autopsies, assessments and the like would have bought a large amount of hay, Nicholls said that it was not a matter of cost, it was a matter of availability of hay. He had not sought veterinary assistance to treat the animals rather than to have them shot. He thought that there was no point in trying to keep those animals alive because, "They were down and dying because they were starving" - see T2699. The first thing to do then was to put them out of their misery rather than give them food. Nicholls emphasised the large number of animals that were in poor to emaciated condition. He stated that this was the view of Dr Irvine, in addition to his own opinion. The four cows that were down had been euthanised at the request of the veterinarian.
341 In relation to what occurred on 27 May, Nicholls said that he had not made enquiries as to the owners of the cattle when he first entered Framlingham. He was not certain when he became aware that the property belonged to the Aboriginal Trust. On that day, he did not try to communicate with the owner of the property. Once Ms Ryan had given him contact details for Holdsworth, he followed that line of enquiry.
342 Nicholls effectively denied that he told Dr Irvine that, as far as he was concerned, the cattle were abandoned. He could not recall whether he told Dr Irvine that the cattle were stud cattle or had come down from New South Wales. He denied that he told Dr Irvine that there was no owner, believing, he said, that the owner was not going to take responsibility for the cattle. He also agreed that he may have told Dr Irvine that he could not trust the owner to attend on the Friday because of his poor compliance with requests to date. He may have said that after he had spoken with Holdsworth on the phone. The poor compliance, as viewed by him, was Holdsworth's failure to attend the property prior to that point. Nicholls stated, "You told me yesterday he was free all Wednesday. If he was free Wednesday, why wouldn't he attend?" - see T2721. I might say that there appears to be a degree of ex post facto rationalisation in that comment. He again denied that any agreement had been made to meet on Friday, 30 May, after Holdsworth had been to Griffith. He had not avoided meeting Holdsworth out of a fear of a confrontation.
343 In essence, Nicholls agreed that he had told Dr Irvine that he did not want him to provide treatment for individual animals. If enough resources had been devoted to it, any animal (Nicholls then altering that to most of these animals) could probably have been returned to health. A number of them would not have been but, when dealing with animals in the husbandry sense, it is not practical to undertake that sort of treatment. That, said Nicholls, was his view - see T2729. He regarded euthanasia as the appropriate treatment. He again emphasised that he did not have an owner who was taking responsibility for the animals, although, "I knew the identity of the owner" - see T2730. He also said that ultimately a further decision was not required in relation to the remaining animals, because the owner removed them against veterinary advice (which was not the evidence of Dr Irvine).
344 Nicholls was then somewhat unclear as to whether or not he had told Holdsworth that, if the cattle were not moved, they would have to be put down. At first he effectively denied this, but then stated that he did not remember whether he told Holdsworth that the animals had to be disposed of, stating Holdsworth always had the option to implement veterinary advice. He again stated that the advice of Dr Irvine was that the animals were too weak to travel. Nicholls thought that they had to be disposed of on the property or fed there until they were physically fit to travel.
345 In answer to a question of mine, he stated that, whilst he had not walked through every part of the bush, they could not find any cattle in there. He believed that Roberts had gone into the forest on the Thursday. He had seen a couple of cattle in the forest on the first day and some around the water troughs. He did not recall Roberts bringing any cattle out of the forest for yarding purposes. The cattle that they had dealt with on 29 May had been in the front paddocks. He did not believe that cattle were in the forest when he was there.
346 Nicholls' view in this regard seems to have been based on the theory that the cattle had run out of feed in the forest and that people from the Aboriginal Trust had released them into the front paddock - see T2735. In answer to a question of mine, Nicholls stated that 200 missing cattle could not have been in the forest. Only a handful, if any, could have been there. There were a number that had died in there. Some carcasses had been seen on Tuesday, 27 May. There was a patch where a heap of cows had been burned previously. He agreed that, in the conversation with Holdsworth on Tuesday, 27 May, Holdsworth may have told him that the animals had the run of the forest to graze in and that there was plenty of feed. However, he personally made no examination of the forest on Wednesday, 28 May, or Thursday, 29 May, but concluded that there was no feed in the forest.
347 Nicholls said that he had not organised Mr Kelly, the stock agent, and had never met him previously. This was done by Dr Irvine. He could recall Mr Kelly putting paint on some of the animals, but was not sure as to in which yard this occurred.
348 In relation to the post-mortems, Nicholls said that it was obvious to those involved that the cause of death of the cows was the failure to provide sufficient food. He had extrapolated this as a common condition which affected all the others. He also stated that drought cattle should not be subject to being pregnant or lactating small calves. Nicholls also said that, "If we hadn't got involved...those animals and the circumstances that they were in would have continued on goodness knows for how long" - see T2753.
349 Nicholls also agreed that if he had not killed the animals and had met with Holdsworth on the Friday, had advised him that he should provide additional feed, and if Holdsworth did this, Nicholls would have expected the animals to recover. Some cows might still have needed to be destroyed. He repeated that, if Holdsworth had arranged to meet with him when they spoke on the Tuesday, "...Our actions on the Wednesday and Thursday would have been different. There's no doubt about that".
350 Nicholls also asserted that 10 of the animals had to be shot just walking to the yards. He took no photographs of this because he did not have his camera with him. Nicholls agreed that, if a cow went to ground during the process of walking them to the yards, he would shoot it. He identified photographs that he had taken of various carcasses, these photographs having been taken on Tuesday, 27 May. He identified 11 such photographs.
351 Nicholls ultimately agreed, after some cross-examination, that, at the Ballarat Magistrates' Court, he had said that the animals needed something done straight away and could not wait until Friday - see T2768-70.
352 Nicholls also stated that his position had always been, and always would be, that Holdsworth did not admit to being the owner of the animals during the conversation on the Tuesday. Nicholls said that Holdsworth "duck shoved" responsibility onto everyone else and continued to do that right up until Friday afternoon. (At this stage the witness was getting somewhat frustrated. I take it that he in fact meant Thursday afternoon.) This was when he finally put it to Holdsworth that he was in fact the proprietor of JA Heath Inland Holdings, and Holdsworth admitted that he was.
353 Nicholls then agreed that he had formed the belief that Holdsworth had proprietary interest in the cattle from the evidence that he had gathered over the period of those three days. He would have expected that Holdsworth, being at Westmere, not far from Framlingham, on the Wednesday, would have gone to Framlingham following the Tuesday phone calls. He denied that there was any other arrangement in place.
354 In relation to his mental condition after the shooting episode, Nicholls stated that he did not see a general practitioner and seek a referral to a psychologist or seek any psychiatric or psychological help himself. He believed that he was "pretty good" by October 2001. He took no medication for depression, stress, or the like. He sought no psychiatric treatment after he returned to work. The psychologist that he had seen in Geelong was organised for him as part of the debriefing process.
355 Nicholls stated that, as at the morning of Thursday, 29 May, there was no one "putting their hand up" in respect of the health of the cattle apart from himself.
356 I then asked Nicholls some questions, with counsel having leave to ask further questions arising out of mine. Nicholls repeated that he believed that there were two bulls and that they were both put down. The fact that the records of Tesbury contained no references to bull carcasses did not cause Nicholls to change his mind. He was satisfied that he only ever saw two bulls.
357 In relation to the carcasses that he saw upon arrival at Framlingham, he believed that some were taken away by Tesbury on the following day. They did not take the carcasses that had been opened up for post-mortem purposes. His estimate was that some eight animals had been put down on Wednesday, 28 May. One cow was put down and one died on the Tuesday, these being in addition to the cows the subject of the autopsy, and Tesbury would have collected those. Nicholls agreed that he was the person who contacted Tesbury about collection of the carcasses. He then repeated that, at the time the Tesbury trucks were there, he had formed a view as to who the owner was through the evidence which he had collected, but this had not been confirmed by the owner. Nicholls had not been convinced or provided with information that led him to think that Holdsworth was taking responsibility for the cattle, and that was the issue. When a couple of cattle were put down on Tuesday, 27 May, the process of tracing the ownership had not commenced.
358 I informed Nicholls that Dr Irvine, who had given evidence earlier, had told the Court that the cattle which had been left behind were capable of being transported, as opposed to the evidence that Nicholls had given. Nicholls replied that that was not his recollection of what Dr Irvine had told him. I asked him whether he had given any consideration to waiting another day in order to pursue the information that he had received about the business name search. He then stated as follows:
"Well, as I've said the issue for me wasn't the identity of the owner. The issue for me was that there was no one taking that responsibility, no one provided with information about their willingness to come forward and provide the care that was required, and as I said earlier I mean if he'd done that on the Tuesday then we would have just been attending on the Wednesday and Thursday in a capacity that dealt with those animals that were requiring immediately euthanasia. The whole point was that I didn't have that information and therefore I took the decision that we needed to - given that I had to look forward into the following week, and I didn't want the situation where animals were going to be going down over the weekend, so I made the decision to cull those animals that we didn't think were viable and I obtained expert evidence on that. I didn't make that decision myself." - see T2792
359 Nicholls went on to say how he had with him a veterinarian, a stock agent and an animal health officer from the Department of Primary Industries. He took advice from them and the decision was not made lightly. He felt that he had no other option. He claimed that he also made several attempts to contact Holdsworth after the material from the business search was received. In answer to a question of Mr Langslow, he stated that he could not recall having given a number of carcasses to be picked up when he first rang Tesbury.
360 He was also asked further questions by Mr Scanlon. Nicholls agreed that, from the telephone records, it would appear that he rang Tesbury three times on Wednesday, 28 May. Nicholls said that three cows had been put down on Tuesday, 27 May, before the process of tracing an owner had commenced. They were in an emaciated body condition. He also said that he needed the business name search to be done. He stated that, if there had been an arrangement to meet on Friday, 30 May, he would not have taken the step of destroying that many cattle on the Thursday.
361 I shall discuss my impression of Nicholls as a witness subsequently. Suffice to say at this stage that there were some key issues in relation to which I prefer the evidence of others.
362 Dr Irvine is a veterinarian who is now practising in New Zealand, where he has his own practice. He has been a veterinary surgeon for 16 years, having graduated with first class honours from Melbourne University in 1998. He initially practised at the Warrnambool Veterinary Clinic, working as a cattle veterinarian. He then spent some time in the United Kingdom, again working with cattle, as well as some small animals, before returning to the Warrnambool practice in late 2001, staying there until mid-2004. He again worked primarily as a cattle veterinarian. Since then, he has been in New Zealand.
363 On 27 May 2003, he was called to Framlingham. He there met Nicholls. He was aware of the identity of Nicholls, but had not had specific dealings with him previously. Nicholls informed him that there was probably a welfare investigation under way and he required that some cattle have post-mortems performed. Because the light was fading fairly quickly, it was considered valuable to get another veterinarian to assist, and Dr Irvine organised this. Dr Irvine commented that it was pretty difficult to see at the time, but he was aware of the open paddocks adjoining part of the forest.
364 The cow on which he was to perform an autopsy was a down cow, unable to rise. His first impression was that she was in very poor body condition. She was euthanised shortly after this and he performed a post-mortem examination of her. It was getting dark quickly, and Dr Irvine understood that there were other cattle around, but he did not have good vision.
365 The results of the autopsy were that the cow was suffering from intestinal worm and lung worm infestation. The remainder of the findings were consistent with a state of starvation or emaciation.
366 Having performed the autopsy, he watched Dr Robert Page, who had arrived, finish another post-mortem, but otherwise took no further action at Framlingham that night. He did have a conversation with Nicholls, who felt that it was appropriate to come back and have a closer look the following day when the light was better. Arrangements were made accordingly. Ms Heck had also been present at the time.
367 Dr Irvine returned the following day, made a closer assessment of what was going on, examined the pasture and the condition of the animals, and had a further discussion with Nicholls. He believes that another two animals were euthanised because they were unable to rise, were in a very poor condition and were distressed. Faecal samples were taken, the testing of them indicating very high levels of intestinal parasites within the group of cattle tested.
368 Dr Irvine went for a walk around the paddock area and assessed that, on average, there was a couple of centimetres of pasture. The grass looked green, but when he walked through it, there was actually very little available feed. What was available was not good feed. Whilst walking around, he also noted that the paddocks were heavily faecally contaminated. This, in turn, is likely to contribute to a high parasite load and it also means that cattle had been heavily stocked there. The setup was not ideal without supplementary feeding. Dr Irvine said that he was not aware that the cattle had access to the forest, but thought that they were confined to the area under discussion.
369 When Dr Irvine was present on Wednesday, 28 May, two cattle were put down. He was aware that there were other deceased animals on the property. He had no record of their numbers. On the Tuesday night, Dr Irvine had attempted to contact two colleagues because there may have been a need to put more cattle down, this belief coming from a discussion with Nicholls rather than from what Dr Irvine could see in the poor light. In relation to the cow upon which he had performed a post-mortem, his impression was that it was profoundly emaciated and he thought that it was a "long bow" to say from pictures of a post-mortem that the meat indicates that cattle were in good condition. The cow in question would have scored 1 out of 5 at best and had no available fat on it. It was a Murray Grey.
370 On the Wednesday, Dr Irvine had a conversation with Nicholls concerning whether anyone was taking guardianship or ownership of the animals. The information he received was that, although Nicholls had a feeling about who may own them, that person did not assume responsibility for them. Dr Irvine had conversations with a couple of other people from the Department of Primary Industries and the Bureau of Animal Welfare. This was because Dr Irvine's belief at the time was that the animals had been abandoned and there was no owner willing to take custody of them. The advice that he received was to the effect that, "Absolutely the RSPCA had jurisdiction on the property" - see T2194. It was clear that he was there as a private veterinarian to offer his viewpoint, but to follow the instructions of Nicholls in relation to whatever he intended to do with the stock. Dr Irvine also organised for Mr Kelly, a stock agent, to come to the property. Dr Irvine felt that it would be appropriate to have an experienced stock agent present who could assist assessment in terms of body condition and suitability for slaughter. He was waiting to assess whether the cows were fit for being transported and whether they should go to an abattoir as opposed to a knackery. Dr Irvine felt that there were a number that were not suitable for going to an abattoir. He did not believe that any cattle put down in his presence were fit for human consumption. Dr Irvine was then asked whether there was any cow put down that did not need to be put down. His answer was as follows:
"I think given the situation that we were presented with, and I think it was really important in this that we, you know, we are talking cattle that were abandoned and that we were taking an immediate to long term view of the welfare of these animals, that we absolutely put down the correct animals on the basis of the decision that we formulated" ― see T2197.
371 In relation to a situation where there are several hundred cattle in a crisis situation, as opposed to one or two, Dr Irvine said that it depended upon whether the owner was or was not present "for a start". He again referred to the situation, as far as they were aware, as being unlikely to change in that there was no ownership and no provision of food beyond a small amount, so that it was a good husbandry decision to remove the ones that were most at risk of not surviving the immediate emergency. This would allow the balance of the stock to remain and potentially survive. This would be a good humane decision. I would point out that Dr Irvine was again putting in the important proviso that there was no ownership and that the situation was unlikely to change. Nicholls had told him that he was able to bring in a single feed of three tonnes of hay which, by Dr Irvine's calculations, would feed 150 cattle for approximately 36 hours. It was a very-short term feed situation.
372 Dr Irvine believes that, at the time that he acted, he had all the information to hand that he could possibly get, but subsequent information was that there was ownership of the cattle (as opposed to Dr Irvine's belief that they were abandoned cattle). His knowledge of ownership as at Thursday 29 May was said to be as follows:
"My understanding from the inspector was that he had knowledge of who was potentially the owner but that that person had refused to accept responsibility for the animals" ― see T2200.
373 In relation to the number of cattle that were put down and removed from the property, Dr Irvine stated that these numbered 60 cows, 45 calves and 2 bulls that were in the yards. Another 10 were put down before reaching the yards because they went down in the process of walking and they were not able to be raised again. They were destroyed where they lay. The cattle had been brought slowly from the paddocks to the yards. On 28 May, Dr Irvine had been aware of other carcasses, but could not assess their number. The cattle that were put down in the yards were killed in the crush, except for a couple that went down in the yard area itself.
374 Dr Irvine was shown Exhibit H. He commented upon the enormous amount of faecal material in the pasture. In relation to photograph 2, he said that the cow there depicted had been thrashing, was laterally recumbent and the chances of a cow recovering from such a situation are "pretty poor". Dr Irvine did comment that it is difficult looking at photographs of animals because "they don't truly often reflect the situation". If anything, they tend to err on the side of making them look slightly better than they are. The cow shown in photographs 4 and 5 was extremely underweight, but was sitting up and alert with strength available to hold up her head. The cow in photograph 6 was laterally recumbent and looked to be bloated. When shown photograph 10, which is of a bull, Dr Irvine said that he did not specifically remember the bull, but it was one of several on the property. The bull in the photograph could not survive in the long term or the immediate future without supplementary feeding. The cow in photograph 22 would possibly score a 1, whilst that in photograph 23 was 0 to 1. The same animal was portrayed in photographs 24 and 25, and this was a cow in very poor condition. It was unlikely that she had got to that condition in a fortnight. In relation to the cow in photographs 24 and 25 and whether she would need to be put down, Dr Irvine stated that if it was on an individual basis and if he had an owner, he may have tried to treat the animal, but the prognosis would have been very poor. The calf with her would probably not have survived on its own.
375 The cows depicted in photograph 30 were those that had been selected by Mr Kelly and Dr Irvine to be put down on the basis of extremely poor body condition. They were very thin. In other words, they had been designated as being unable to survive the immediate future without nutritional support and health care. The cows shown in photograph 29 were more likely to be ones that were left standing. They had more condition and looked better than those in photograph 30.
376 In answer to a question of mine concerning the cattle in photograph 30, Dr Irvine said that if there was an owner or someone taking responsibility for them, there would still be a chance of survival, but the treatment would have to be immediate and very intensive. They would have needed a nutritionist and a nutritional plan to try to resurrect them. Potentially they could have survived, and that possibility could not be discounted if everything had been done correctly. There was also a chance that many of them may not have, particularly if there was a sudden turn in the weather or a very cold snap. A significant amount of supplementary feed would have been needed for those animals.
377 Dr Irvine's recollection was that he and Mr Kelly had walked through, assessing the cattle, identifying those that were worst off, and then had run the cattle through the race and drafted them accordingly. He was reasonably certain that each cow came up the race at one point or another. Dr Irvine said that he looked at every one of the cattle. Dr Irvine believed that there were no instances where, a red mark having been put on a cow, there was a subsequent change of mind and the cow was not put down.
378 Dr Irvine also commented that the cow in photograph 36 was in very, very poor condition with a score of 0 to 1, which meant that she was profoundly underweight. The cow in photograph 36 did not appear to have a great future. Many of the animals were underweight and in need of feed. Similarly, some of the calves seen in photograph 40 looked very "light on". The calves in question had probably not been drenched adequately. Normally Dr Irvine would have advised a farmer to fix things up pretty quickly. To euthanise them was the correct thing to do if there was no owner and no one taking ownership. Some of the cows needed intensive feeding, drenching and veterinary care. In relation to there being possibly hundreds of cows of this type, Dr Irvine again emphasised that the situation required ownership, intensive management and good nutrition. The cow in photograph 48 was also in very poor body condition. Dr Irvine thought that she was going to be very close to death.
379 Returning to the pathology reports following the post-mortems, these did not indicate that any other disease processes, other than what had previously been described, were present. Essentially, the changes found were consistent with starvation and heavy parasitism. He also found that the ribs in the animal on which he performed a post-mortem were very fragile, which was unusual. This can be caused by nutritional deprivation.
380 Dr Irvine stated that the cattle that were put down were not capable of being transported, but those that were left behind were. He also stated that no cattle transport vehicle had come onto the premises whilst he was there. The decision making process had been carried out by Dr Irvine in consultation with Mr Kelly. Nicholls did not attempt to interfere with the decision making.
381 Dr Irvine also said that the post-mortem findings were consistent with the cattle not having been drenched since at least February 2003. He said that the findings did not indicate severe pneumonia.
382 Dr Irvine stated that he had given Nicholls an undertaking that he would drive by and visually check that the animals looked all right and that is why he returned to Framlingham on the following weekend. If the need to put down further cattle had arisen, he would have contacted Nicholls.
383 Dr Irvine agreed that he did not take any muscle tissue samples. He may have inspected the area again on Monday, 2 June. He could remember that he had said to Nicholls that he would do a visual inspection over the weekend. Dr Irvine said, in relation to the cattle that had been assessed but not put down, that keeping them in the yard for an hour or two after assessment was not a problem.
384 Dr Irvine agreed that the shooting of the animals at the yard took place in the crush. He thought that it was probably Mr Kelly who had marked the cattle with the red paint. His recollection of the method of assessment of the cattle was not clear. He thought that the animals would have gone through the race after they had been marked with the paint. Dr Irvine's recollection was that the animals were selected by being put through the race ― see T2265. Dr Irvine also stated that the pathologist's report was to the effect that the level of strongyle worms was high and that drenching was required. He also agreed with the proposition that lung worm infection is considered relatively common in cattle in Victoria. He agreed that it was a similar position in relation to gastrointestinal parasitism. He stated that the degree of parasitism which the animal had indicated that it needed treatment. Drenching would be that treatment. Ideally, drenching should be carried out every two to three months.
385 Dr Irvine agreed that he had never seen or dealt with drought cattle, such as those that were being seen in New South Wales at the relevant time. When he first went to Framlingham at the request of the RSPCA, he did not have any information that the cattle were from New South Wales. He had never received any information, from Nicholls or elsewhere, that the cattle were highly bred and of stud quality. He agreed that, at least by Wednesday, 28 May, he had information from Nicholls that Nicholls had a belief or knowledge to some extent of who the owner was, but the owner refused to take ownership or responsibility. Nicholls had also made a comment late in the afternoon of Thursday, 29 May, that the owner had said that he was unable to be there before Friday, 30 May, but that he would be there on the Friday to discuss the matter. Dr Irvine then said that, if he had known this from the Wednesday night or the Thursday morning, that would have, "Absolutely made a difference to the course of action" ― see T2277. He then would have said words to the effect of the following:
"...Look, we can't do this, these animals can clearly last, or the bulk of them can, until Friday. We've got to wait until the man gets here".
Dr Irvine said he had no knowledge that Holdsworth and Ellison had driven through the night of Thursday, 29 May, and arrived at approximately 6.30am on the Friday.
386 Dr Irvine said that, as far as he was concerned, Nicholls was clearly in charge. He had consulted other colleagues in this regard. Dr Irvine regarded his right to enter the property and do the things which he did as being dependent upon his belief concerning Nicholls' position in the hierarchy of the people on the property. Nicholls was present and part of the process when the animals were dealt with in the yards. However, he left the assessment "per se" to Dr Irvine and Mr Kelly.
387 In answer to a question of mine, Dr Irvine said that, if there was an owner coming or an owner accessible for the cattle in question, he would have suggested that a drench was required. That is something that should be within an owner farmer's capacity to organise. He thought it possible that the cattle marked with red paint may have been marked in the race and then drafted and yarded separately. They may then have come through a second time, but he could not specifically remember.
388 In answer to a further question of Mr Langslow, Dr Irvine agreed concerning the geography of the paddocks that were available to the cattle. He could not recall gates that allowed stock to cross from a paddock on one side of the driveway to the other. He did not examine the pasture or the grass in the area between that driveway and the Hopkins Highway. He could not recall whether there were marks consistent with sod-seeding.
389 Dr Irvine also effectively agreed that, in the pathologist's report, there was no comment to the effect of there being any problem with bone density or the like.
390 Dr Irvine agreed that he had made a phone call to Nicholls on Sunday, 1 June, concerning the fact that he had been past Framlingham and, essentially, cattle were yarded. The responsibility was that of Nicholls. That extended beyond Thursday, 29 June. Dr Irvine's recollection was that the assessment process took several hours. He could not recall how long was spent on each animal. He also agreed with the proposition that animals such as cows can be very lean, but fit and strong. He repeated that he had no information concerning the fact that they were drought cattle that had been on stock routes in New South Wales and had walked long distances. He also repeated that 10 animals, when being mustered, fell down and were not able to rise again. Such animals can be treated, but there was no owner. According to the information that Dr Irvine had, they were abandoned. Treating them was not an option that was provided to him at that time. Dr Irvine also stated:
"I'm not in a position ... to treat animals without someone actually authorising me to do so, so in this situation the person who is responsible was the inspector ... He made it clear to me that we weren't looking at individual treatment, we were looking at an overall welfare and husbandry decision" ― see T2304.
Dr Irvine then agreed with a proposition put to him by Mr Langslow, namely that Nicholls' position was clear that he was not going to have Dr Irvine treating individual animals at all. Dr Irvine's preference would have been to save animals if he could, and he had some material in his vehicle that could have been used. Dr Irvine stated that the overall decision to put animals down was that of Nicholls, he being in charge of the property. He had not suggested to Nicholls that an attempt be made to obtain a tractor or a sling to lift any animals because "we weren't treating the individual animal". He said that he had told Nicholls that his position was that, if the animals were going to have guardianship and be provided with feed and water, he would probably only have destroyed the animals that were unable to rise or walk to the stockyards.
391 Dr Irvine said that, until Nicholls had told him after the work had been completed on Thursday, 29 May, that the owner was claiming that he would be there on the Friday, he had no knowledge or belief concerning this. He also repeated that photographs are misleading and often do not convey the condition score. He would not be prepared to comment on photographs alone without examining the particular animal. Dr Irvine had not been asked by the RSPCA to do anything further after he saw that the cattle were yarded. He was not asked to undertake any further tasks by the RSPCA. Cattle that had been put down had spines that were very prominent and probably fitted into a high risk 1 category, some being high risk 2. Muscle wastage was obvious over the whole body. Individual bones were easily felt. Some were lacking in energy or staggering. The cattle that were put down were not fit to travel. They were at risk of death from cold or wet weather.
392 In relation to the marking of certain animals with red paint, that was a collective decision between Dr Irvine and Mr Kelly. In relation to injuries to individual cattle, Nicholls was the only decision maker in relation to those that he euthanised.
393 In answer to a question of mine, Dr Irvine said that his records clearly showed two bulls had been put down, it having been pointed out that the Tesbury records mentioned no bulls. He then stated that he had no doubt that there were a couple of bulls present. Apart from the note which he recorded, his recollection that there were two bulls comes from photographs which he had examined.
394 Dr Irvine impressed me as a witness. Whilst he could be described as being a principal player in events, he did not strike me as being particularly aligned with one side or the other. I accept that he was doing his best to give accurate, unbiased evidence.
395 Roberts is now a fire prevention officer employed by Moorabool Shire Council. He worked for the RSPCA from early 2003 until approximately March 2009. In May 2003, he was a probationary inspector employed by the RSPCA. Prior to working for the RSPCA, he had been a local laws officer, a ranger and a protective services officer. He has a Certificate IV in Animal Management and Control. Roberts attended Framlingham with Nicholls, who was mentoring him in his role as a probationary inspector.
396 Roberts' recollection is that the cattle at Framlingham were in very poor condition. When they arrived on Tuesday, 27 May, they found some cattle dead, others alive. As Roberts was a probationary inspector, he was not authorised to take any actions under the Act. He accompanied Nicholls during the inspection of the animals and was present when a number of them were shot by Nicholls. His recollection is they did not enter the forest area on the first day there. Ms Heck was also present and two veterinarians arrived later. Post-mortems were conducted and subsequently Roberts left. He did not think that the number of cattle that were shot on the Tuesday was as many as 10, but he could not be certain.
397 He returned to the property on Wednesday, 28 May. He and Nicholls met Ms Heck at the property. They then conducted a head count as they drove around. The total was approximately 260 animals. Whilst his memory was not clear, he did not think that they went into the actual forest, but drove around the forested area. At some stage, he drove around that area and his recollection was that he found perhaps another three or four cattle in the forested area. Whether they were included in the head count, taking it to a total of 264, he could not recall, but he seemed to think that 264 was the total. He could not recall whether any further animals were shot on the Wednesday. At some point, faecal samples were taken. He believed Mr Beard also attended, but he did not speak to him.
398 Roberts attended the property again on Thursday, 29 May, arriving in the morning and spending most of the day there. He believed that he left at approximately 5pm. At approximately 9.20am, he received a telephone call from another RSPCA inspector who advised him that the proprietors of JA Heath Inland Holdings were Holdsworth and Ellison. He believed that this was conveyed to Nicholls shortly after or at the time of the phone call. His recollection of what occurred on 29 May, was that the cattle were driven to a set of yards and then assessed by the "vets" and Ms Heck. He believed that a stock agent was also present. Roberts' memory of events was far from clear and he was uncertain as to whether Ms Heck actually took any part in inspecting and assessing cattle. He was certain that the two veterinarians were involved, accompanied by Nicholls and the stock agent. The evidence in fact seems to be that only one veterinarian, Dr Irvine, was present on this occasion, but that is no criticism of Roberts, who was giving evidence without the assistance of notes and said more than once that his recollection was far from clear. Again, his recollection was that animals that were to be saved were put in one yard which ran off to the race or crush, whilst those that were deemed unable to survive were pushed into another yard where they were shot. Again, the evidence of others would indicate that the slaughtered cows were shot in the race, rather than in a yard.
399 Roberts could recall Mr Rentsch arriving about lunchtime, but did not speak to him. He heard part of the conversation, and his recollection was that Rentsch said he had spoken to Holdsworth and gave Nicholls a phone number for Holdsworth. Mr Rentsch left shortly afterwards. Roberts thought that Nicholls attempted to phone Holdsworth, but could not get in contact. He could not say whether Nicholls received a return phone call form Holdsworth on that day.
400 Roberts repeated that the cattle that were destroyed were in very poor condition and were destroyed on humane grounds. He believed that Nicholls and himself attended again on Friday, 30 May, at approximately noon, in order to reassess the condition of the animals remaining on the property. He thought that they saw approximately 60 cattle remaining there. He also believed that they had attended Warrnambool Police Station in relation to what was occurring.
401 Roberts then was given leave to refer to his notes on the issue of the phone call received from another inspector concerning JA Heath Inland Holdings, there being no objection to this. Having looked at his notes, he was able to say that the phone call was received from Inspector Robinson at 9.20am on 29 May. Holdsworth, Ellison and a solicitor were named as directors of the company (in fact it was a partnership, the solicitor involved being the person who had attended to the legal work). Roberts also said that at 9am they were on duty prior to the receipt of the call. He concluded his referral to the notes on this point by saying, after detailing the contents of the call at 9.20am, that, "We re-attended at the property at...Framlingham...". The clear impression gained from this is that the phone call from Inspector Robinson was received prior to Nicholls and Roberts returning to Framlingham. Roberts also stated that he had made his notes as soon as possible after the events on each day.
402 Roberts said that, on first arriving at the property, he observed a dead Murray Grey cow near a fence. He subsequently observed the bodies of nine dead cows and one cow lying on its side unable to rise. He saw one cow that was shot by Nicholls and another that had recently died. He also saw one on the south fence of the property lying on its sternum and unable to rise. On the following day, at 10.20am, he saw Nicholls shoot two calves, followed soon after by two more cows and a calf. Nicholls shot one more cow that afternoon.
403 On 29 May, Roberts found four stray cows in the forest. He was also present when Nicholls shot a cow in very poor condition which had walked out of the scrub at the south end of the property.
404 Roberts was sent to work with Nicholls in May 2003. He could not say if he had been with Nicholls prior to the week in which the relevant events occurred. He had been instructed by Nicholls in relation to photography on the property. He repeated that he was acting under Nicholls' mentorship. He saw some carcasses loaded onto Tesbury trucks, but did not know what happened to them after that.
405 Roberts said that he was there to learn, and he did not turn his mind to the question of whether or not Nicholls had the power to shoot animals and have them removed from the property. Roberts believed that, on Friday 29 May, Nicholls attempted to contact Holdsworth at approximately lunchtime. He thought that the cattle had been shot by that time (which clearly seems to be incorrect). His recollection was that he was on foot at least part of the time when moving cattle from the paddock into the yards. He did not think that Nicholls had been on foot. He left in the RSPCA's vehicle with Nicholls. He could not recall whether they were the last to leave. He could recall that the trucks that had been there had high sides and winches for moving the carcasses. They were not articulated vehicles. He could not recall seeing any stock trucks or semi-trailers. He also thought that 29 May was the only day on which he had driven around the forest. He could recall going to the Warrnambool Police Station with Nicholls and seeing an officer on Friday, 30 May. The counting of cattle had been done by himself, Nicholls and Ms Heck (his earlier evidence suggested that they then added together their counts, rather than each counting the entire herd). He was unaware of any meeting ever organised between Nicholls and Holdsworth.
406 Roberts identified himself in photograph 31 of Exhibit H. He repeated that he thought that the animals that were to be saved went through one gate, whilst those that were to be put down went through the other. However, he could not say exactly where the animals were being taken to be shot. He did not think that they had been shot in the race. Roberts also said that the period that he spent with Nicholls was probably only one or two weeks. He did not assess any of the animals himself, and could not recall who instructed him in relation to opening the gate in the race. There was no re-examination of Roberts.
407 Whilst Roberts stated that he had read his notes and other material the night before he gave evidence, not having seen it for a number of years before that, his recollection of events was somewhat patchy. The impression that I gained of him was that, at times, he might have completely exhausted the limits of his memory and may have been a trifle annoyed that he could not make more use of his notes. However, this was only a fleeting impression. Overall, because of his limited recollection and his inexperience when these events were happening, parts of his evidence seem to me to be of limited impact. However, I accept that one thing that was established, essentially by reason of referral to contemporaneous notes, was that the phone call passing on details of the result of the business name search and establishing beyond doubt the identity of the owners of the cattle was received at 9.20am on Thursday, 29 May. There is no reason to doubt but that this information was passed on by Roberts to Nicholls shortly thereafter. As stated, save for the above, the evidence of Roberts seems to me to be of limited impact for the reasons which I have stated. However, I did not gain the impression that he was being in anyway obstructive. He seemed to me to be doing his best to answer questions.
408 Ms Heck is employed by the Department of Environment and Primary Industries in Warrnambool and is a Leading Animal Health Officer. She has been so employed in the Western District for 13 years. She has a Degree in Bachelor of Agricultural Science (Hons). She is Gazetted under the Act as an authorised officer, apart from being authorised under other Acts and Schemes. Between April 2001 and April 2003 she was undertaking reasonably intense training. In May 2003, she was based in Warrnambool, possessing the qualifications that have been described. In 2003, a member of the public came into the office in Warrnambool reporting some concerns about animals at Framlingham. Following that, she went to Framlingham. She opened an unlocked gate and entered the property. She had noticed animals sitting down, and, although the grass was green, there did not seem to be a lot of it. She noticed one dead animal, which was a Murray Grey. She could not say whether it was a cow or a bull. It was recently deceased. She then noticed other animals down and various carcasses. While she was looking at one of the animals, she heard a gunshot. She also said that the cattle that were in the distance and decomposing were in fact like dots. Having heard the gunshot, she was heading back towards her vehicle when she noticed another vehicle driving towards her, it coming from further into the property in the area of the trees. As it got closer, she recognised Nicholls as the driver. She was subsequently introduced to Roberts. She had met Nicholls on a couple of prior occasions. She got into their vehicle and they commenced to drive around the area. Nicholls told her that he had just shot some animals. As they drove around, she looked at other animals and noticed that their condition was quite poor. In fact, she described the state of these cattle as being very poor.
409 Ms Heck gave the number of a couple of veterinary clinics in the Warrnambool area to Nicholls. Pursuant to that, Dr Irvine and Dr Page arrived. In addition, Ms Ryan, who was known to Ms Heck, approached and gave an indication that she knew who the owners of the cattle were. It was not until after the post-mortems had been performed that Nicholls, Roberts and Ms Heck went to Ms Ryan's house and obtained further information.
410 Ms Heck recorded that the owners were James and Heather Holdsworth and also noted two telephone numbers. Ultimately, Ms Heck left the property at approximately 7pm. Apart from the people previously mentioned, there was no one else on the property. She also stated that, " ...with the RSPCA starting the case, it became their case and not the DPI's" - see T2011. She stayed on because, at that time, she was still new in the job and it was the first animal welfare call that she had received.
411 On the following day, Nicholls, Roberts, Ms Heck and the veterinarian met at the property again in order to drive around and assess the animals. On that day, Ms Heck could recall a cow and a calf being put down. Faecal samples were also taken. On that second day (28 May), they drove around, found the yards, found a water source and also some other animals. More deceased animals were found. The property was larger than first envisaged. The deceased animals that were found had not been shot. It was decided by Nicholls and Dr Irvine to come back the following day and muster the animals into the yards.
412 On 29 May, Ms Heck arrived at the property at approximately 9.30-10am. She remained there until late afternoon. As they were mustering the animals, any animals that did go down were shot. She cannot recall the number. She stated that the animals had been assessed by Dr Irvine and, on the basis of his assessment and the authorisation of Nicholls, animals were shot. No cattle transports had been or were present. No live cattle were taken from the property. She stated that animals were moved into the crush, assessed by Dr Irvine, and some animals shot in the crush. She was in the stockyard helping move the animals into the crush. If Dr Irvine assessed an animal as not being needed to be shot, it was released into a paddock. In relation to the forest, "We did not go looking in there" - see T2017. The fence into the forest was broken. Around about 200 animals were brought into the yard. Ms Heck believes that approximately 117 animals were shot. She stated that the people from Tesbury shot the animals "at the request of Officer Nicholls".
413 By the time Ms Heck departed, most of the animals that had been shot had been removed. She was unaware of anyone looking in the forest to see if there were more cattle there. The mustered cattle did not come from the forest.
414 When the cattle were yarded and being assessed, Ms Heck was standing in the yards, not near the crush, and could not hear conversations. She said that the cattle were being assessed by Dr Irvine in consultation with Nicholls. She described the cattle that were put down as being very low in condition, but said that she made no judgment on the day. She also thought that two bulls had been put down.
415 Ms Heck was taken to the photographs contained in Exhibit H. She identified various animals as being in poor condition. She identified a cow and calf down by a tree as animals which she had seen. She had thought the cow was dead but it moved its head. She also mentioned that there had been an assessment in the yards by the stock agent when he arrived. Ms Heck stated that the actual slaughtering of the animals was done in the crush. The ramp was blocked off because it was not intended that animals go up it.
416 In cross-examination, Ms Heck said that she was not watching, was not up at the front, and did not know which gate was opened in order for cattle that were not shot to be released back into the paddock. She was not really in a position to see the assessment procedure. She believed that all animals went through the crush. She also agreed with the proposition that Nicholls was in control and "determined to stay in control".
417 On Thursday, 29 May, Ms Heck left at lunchtime and went into Purnim in order to get some food. She went on her own, and the activity continued in her absence. Animals were being assessed and she believed that the shooting was continuing. When she went for lunch, which probably would have been something in the order of 12.30pm-1pm, Mr Kelly had not arrived. She believed that he arrived mid-afternoon. She was clear that shooting had commenced before he got there. In relation to the grass available, she thought it was quite short, but that there was some there. Ms Heck also stated that she had not gone onto the property to the west of the driveway because she did not know that it was part of the same property. She stated that, when she initially went there it was to do a "scoping" of what was going on, but when she saw that the RSPCA inspectors were there, it became their case. She did not do an inspection on her own or away from the RSPCA's inspectors. She had stayed on because it was a learning experience, being her first welfare case.
418 In relation to going to Framlingham on Wednesday, 28 May, Ms Heck believes that an appointment had been made on the previous day. She was aware of a phone call that Nicholls had on Thursday with someone whom she presumed was the owner, because that was who he told her the conversation was with, but she knew nothing about any information obtained. On Thursday, 29 May, Nicholls was in the yards doing a lot of different things. She also said that some of the cattle that she saw that were down on Tuesday, 27 May, could have been just sitting down.
419 Ms Heck was aware that Ms Ryan was living on a property adjacent to the relevant one, and it was a property to which she had been on several occasions. Ms Ryan had come over earlier and said that she had information concerning the owners, and that they had later gone across and obtained that information. Ms Ryan had said that she had the information concerning the owners before the post-mortems were carried out. She had probably told Nicholls that Ms Ryan had this information. She could recall the conversation on Thursday, 29 May, when he had got off the phone. (Ms Heck did not say to whom he had been speaking, but, given her earlier evidence, and given the context of her answer, it was probably to the owner.) She could not say at what time of day this occurred, but they had mustered the cattle. On Thursday, 29 May, Ms Heck could not recall seeing any cattle trucks.
420 Ms Heck said that putting the animals through the yards was the easiest way to assess them. She also stated that animals were shot in the paddock, but it was an easy way to assess them in a crush.
421 Ms Heck said that, from memory, when the cattle were mustered, Nicholls was in his vehicle and the other people were on foot. Ms Heck's recollection was that the cattle, having been brought to the yards, were not divided into those that were to go and those that were to survive. She said that the stock agent, Mr Kelly, might have done some visual assessment, but, essentially, it was Dr Irvine who was doing all the assessment. Ms Heck again repeated that it was an RSPCA case and she simply put it in the hands of its officers.
422 In re-examination, Ms Heck said again that the RSPCA was already on the property. It was their case and they handled all the decision-making. Ms Heck also said that she could recall no trucks, other than Tesbury trucks, that were on the property. In answer to a question of mine, Ms Heck said that she was reasonably confident that two bulls were put down. When I mentioned to her that the records of Tesbury did not include any bulls, she said it was possible that the veterinarian had changed his mind. There was a possibility that she had made a mistake, but she repeated that her notes said that two bulls had been destroyed. The impression that I gained was that Ms Heck was doing her best to describe events as she recalled them. However, given that it was the first animal welfare case in which she had been involved, that the case was being run by the RSPCA and that the events in question occurred some 11 years ago, it is not surprising that her evidence was at times vague and did not always accord with the evidence of others. However, as stated, I have no reason to believe that she was doing anything other than attempting to answer questions as well as she could, given the limitations that existed in this regard.
423 Dr Page is a veterinarian currently carrying on practice in Ballarat. In 2003 he was working at the Warrnambool Veterinary Clinic, having commenced there after he graduated in January 2000. He finished there at the end of 2003. He was employed at Warrnambool as a mixed animal veterinarian, but 80 per cent of his work would have been with cattle. However, subsequently he worked largely with small animals.
424 He recalled going to Framlingham after receiving a call over his two-way radio to assist Dr Irvine. On arrival at Framlingham, he drove through a paddock where he thought that there was very little feed. There were a number of dead Murray Grey cattle on the ground and he thought that these numbered about five. The cattle there looked thin, scoring between 1 and 2 out of 5. He was asked to perform a post-mortem, which he did, on a Murray Grey heifer, approximately 18 months of age. She was very thin and rated possibly 1 out of 5. At post-mortem, very little fat was found. The cow was approximately six months pregnant. There were signs that nutrients had not been properly absorbed. There were a lot of lungworms in the cow. There was also evidence of parasitism. This results in loss of protein. Dr Page's conclusion, based on the examination and the resulting pathology, was of chronic malnutrition and severe parasitism, which led to the animal becoming recumbent and needing to be euthanised. He thought quite a lot of the cattle on the property needed euthanasia.
425 In cross-examination, Dr Page said that, when he performed the autopsy, it was dark, being dusk. Headlights were used to illuminate the situation. Dr Page left at the same time as Dr Irvine. The only other person he could remember being present was Nicholls. Dr Page agreed that lungworm was a treatable condition, depending upon its severity. Lungworm can be treated by drenching. Dr Page was of the view that the lungworm which this cow had was a severe infestation. He also thought that the condition of the lungs was indicative of pneumonia. Dr Page agreed that he could not extrapolate from one animal to a whole herd and could only talk of the one animal on which he did a post-mortem. It was put to Dr Page that the report from Gribbles (pathology), referred to mild, multifocal granulomatous abomasitis, and he agreed that that would be treatable. Drenching might have to be carried out a few times. It might also be necessary to move the animals into another paddock which did not have worms present. He agreed that it was common with animals that had lungworm that, after drenching, they survive and eventually substantially recover. However, the animal upon which Dr Page performed the post-mortem was dead when he got there. He also agreed that, at the time, he did not have any experience of dealing with cattle that had been in an extensive drought of the type that had been existing in New South Wales. It was then put to Dr Page that, based on a pathology report, the animals' organs were all operating normally and those that were not had a condition which was treatable. Dr Page's response was, "As far as the worms and that go, yes" - see T2395. He also agreed that the pathology report did not confirm any diagnosis of starvation. Dr Page also agreed that he did not examine the property effectively at all, and did not look for water points or anything of that sort. He had simply driven across the paddock to where the animal was and, when he had finished, drove out again. Effectively he had nothing more to do with it than that.
426 The evidence of Dr Page was of limited ambit and assistance. I have no criticism of him as a witness.
427 Mr Rivett confirmed that he operated the pet meat plant formerly known as Tesbury Meats. He still runs the business and has been there 16 years. In 2003, he was a director of the business. As at May of that year, he had not had anything to do with anyone running the Aboriginal Trust land at Framlingham and did not know the people involved there.
428 He believed that the first contact was a phone call to his office on 28 May, which resulted in a truck being dispatched. He was not sure how many cattle were collected. On the evening of 28 May, he received a phone call from Nicholls asking if a truck, or maybe two, could attend the next day. Originally the trucks were requested for 11am, but Mr Rivett asked if they could arrive earlier because of other business commitments. The trucks were, in fact, sent off earlier. Mr Rivett said that Mr Steve Wakeling and Mr Clint Wagstaff were the drivers. Mr Steve Ritchie may also have done a load.
429 Mr Rivett said that he had seen some of the cattle when they came in and they were "very, very light", going on to say "extremely light" - see T2406. He spoke to Mr Wakeling when he came back on 29 May, and he was surprised when Mr Wakeling said that there were 47 carcasses on the truck, because the average that can be carried on the particular truck is 18 or 19. Mr Rivett believed that, on that day, approximately 140 cattle were brought in. Mr Rivett said that the records always show the exact number. His only prior contact with Nicholls had been in relation to one cow near Lismore.
430 It would appear from the records of Tesbury that, on 28 May, 16 cows and 3 calves came in. On 29 May, there were 76 cows and 44 yearlings. The code used in the records was explained. Looking at the records, Mr Rivett was unable to say if any bulls came in. He also said that, during a drought, the quality of the cattle drops. Mr Rivett said that he had been involved with cattle since 1966, including during the drought in 1967. He was then shown some of the photographs in Exhibit H, describing the condition of the cow in photograph 2 as being horrible. He thought that it would have taken probably three months for it to get to that condition. He identified the bull in photograph 10 as being in bad condition. He also said that he had been involved in all aspects of working on the chain in knackeries. He thought that there was little meat on the cows, the subject of the post-mortem. When shown photograph 31 of Exhibit H, he identified Mr Wakeling and Mr Wagstaff. He said that the workers get to see the cattle which are dumped, where the skinning process starts.
431 Mr Rivett stated positively that the cattle, which arrived at Tesbury, had red paint on them - see T2422. This became the subject of some attack during cross-examination. Mr Rivett also effectively stated that the only cattle on which he could comment, as to fitness for human consumption, were those brought in on the truck driven by Mr Wakeling. He repeated that all the cattle that he saw were marked with red.
432 In cross-examination, Mr Rivett said that he had not seen a copy of the transcript of the evidence that he gave at Ballarat.
433 Mr Rivett was then taken to records from Tesbury. They relate to the daily arrival of carcasses at Tesbury. In fact, whilst it may be corrected, what is recorded is the number of carcasses that are to be collected according to the request received. Sometimes there are additional carcasses and the records are then adjusted. These records would indicate that on Wednesday, 28 May, 16 dead cows and two dead calves were collected from Framlingham. It might be said that this particular method of record-taking seemed to be a little confusing and I was not entirely satisfied as to its accuracy. However, Mr Rivett asserted that it was an absolutely true record. I would refer to the discussion at T2433, which continues over quite a number of pages. The situation was even more complicated because Mr Rivett had a falling out with his brother, who had also been in the business, and many of the books were taken by him.
434 Mr Rivett again confirmed that he had seen red paint marks on the animals being tipped off at Tesbury. It was then put to him that at Ballarat Magistrates' Court in 2005, when asked about markings on the hides, he had stated that he had no reason to go looking for them - see T2444. At Ballarat, when asked whether there was red paint or anything like that visible, his response had been:
"I can honestly say, no, I don't. I didn't look for it. They may have been there but I didn't go looking for it. I had no reason to look for it, you know."
435 When it was put to him that he could not recall there being any red paint on these animals as they lay on the killing floor, his answer at Ballarat was, "No, I cannot recall that, honestly". Mr Rivett said he could not recall now whether he had been asked that. He may have become a little confused, because he also said that the earlier answer would not have been true. A series of questions put to him at the Ballarat Magistrates' Court, concerning whether there was red paint on the hides, were all effectively met with the answer that he could not recall any having red paint on them. His attempted explanation was that he must have been confused at Ballarat, because there had indeed been red paint on the hides. He also said that it was very intimidating being in Court and that sometimes he did not hear properly. He referred to the fact that he was a diabetes sufferer, who, back in 2005, did not understand diabetes fully and had not looked after his condition. On the following day of the present hearing, he indicated that his diabetes had, in essence, played up on the preceding day.
436 Mr Rivett confirmed that he was in the office at Tesbury on Friday, 30 May, when Holdsworth and Ellison came in. Mr Rivett was then taken to a document that had allegedly been photocopied and given to Ellison by someone in the office on 30 May. He may have received a phone call from Holdsworth, although he seemed uncertain, and could not recall a call from Nicholls, although the phone records indicated that both such calls were made.
437 When Holdsworth arrived that afternoon, he was plainly upset and making accusations. He was, "Yelling and screaming something about killing his stock" - see T2463. Ellison was with him. Mr Rivett said that, if the RSPCA is present, it is actually in control of the situation.
438 Mr Rivett said that he personally had not counted the number of animals that came in from Framlingham. He may have asked the drivers when they arrived, but could not be more specific. Looking at the various entries in the records, Mr Rivett amended the number of carcasses brought in on the truck driven by Mr Wakeling from 47 to 42. In essence, he otherwise confirmed the numbers shown - see T2475.
439 There was then some discussion concerning the procedures carried out after carcasses arrive. He thought that he would have done this on Thursday, 29 May, but it was hard for him to say that he had a specific memory of it. He thought that at the time there were probably 11 men working on the chain in the afternoon. In relation to the boning work in the morning, there would have been a total of about 15 men. The actual number of boners would have been between three and five, with three slicers. Mr Rivett agreed that on the morning of Thursday, 29 May, in the boning room there would be bodies from Framlingham and from other places with no identification on them. The same would be correct for the morning of Friday, 30 May. He had seen some of the animals hanging in the kill floor area on the Thursday. At that stage the skins would have been removed. He stated that the Framlingham cattle could, nevertheless, be identified because they were "very, very small and light". Ultimately, he agreed that the description "light" is a description that could be applied to them. However, he disagreed with those that said that the animals had plenty of food in them. He stated that, if those working on the line said that the animals had plenty of feed in them, they were not telling the truth. Mr Rivett was able to identify Mr Moloney, Mr Kirkland and Mr Byrne as people who worked on the line at the time. He thought that Mr Wagstaff mainly did driving. Mr Kirkland was very proficient at all parts of the line and would go wherever it was needed to speed things up. Mr Rivett said that he did not know Mr Kelly personally, although he had seen his picture in the paper a couple of times.
440 Mr Rivett again stated that it was incorrect that the meat on the carcasses was fit to go to an abattoir. He also said that, when Holdsworth and Ellison came to the office, once he had established exactly who they were, he explained fully what had occurred. He could not recall any discussion about whether the cattle should have been put down, and doubted whether that occurred. The whole thing ended with them going away "friendly" and Mr Rivett thought that they understood exactly Tesbury's position.
441 My overall impression of Mr Rivett as a witness was that, for one reason or another, he was not totally reliable. It may be that his diabetes causes him some problems, or has in the past. Whatever the cause, he said with some certainty that the animals from Framlingham which he saw had red paint marks on them. When giving evidence before the Ballarat Magistrates' Court in 2005, he stated not once, but several times, that he could not recollect seeing any red marks on the animals. It was not that he said that there were no red marks. It was, in essence, to the effect that he took no notice. Of course, this was at a time much closer to the events in question. It is also the situation that his evidence clashes on a number of issues with that of those working on the line, including the supervisor. Whatever the rights or wrongs of that, the issue of his apparently conflicting evidence concerning the red paint issue is difficult to reconcile. I was also not completely satisfied about the accuracy of his records, particularly in relation to the presence or absence of bulls taken to Tesbury. My impression was that Mr Rivett was not totally unbiased, and, at times in the witness box, he became quite assertive or aggressive in maintaining his position. I have difficulty in accepting some of his evidence.
442 Mr Kelly went straight from secondary school to work for a stock and station agency and has essentially worked in that occupation ever since. In 1991, he and his wife set up the agency for which he still works. He has pursued no other occupation. The agency which he and his wife conduct is the biggest in the Warrnambool area. He would see cattle every day.
443 He knew Nicholls because of Nicholls' attendance at the Warrnambool sale yards. He did not know Roberts or Dr Irvine prior to the events. He did know Ms Heck, she being based in Warrnambool with the Department of Agriculture and being a regular attendee at the Warrnambool sales. Approximately 90,000 cattle a year are yarded at Warrnambool and Mr Kelly's agency would assess approximately 30,000 of them for purchasers or vendors. His work involves assessing livestock. Mr Kelly is also a Board Member of the Australian Livestock and Property Association.
444 Mr Kelly was born and bred on a farm at Purnim near Framlingham and is familiar with it. In particular, he is familiar with the paddocks called "McKenna block", the McKennas having been clients and neighbours of his. He went there on 29 May 2003, having been rung at approximately 8am by Dr Irvine. Dr Irvine wanted Mr Kelly to inspect some stock, but did not say for what purpose. Mr Kelly had, on 29 May, "a very, very busy day", but he said that he would do his best to fit Dr Irvine's request in. He in fact did so.
445 Upon arrival, the livestock were yarded, so Mr Kelly walked around and had a look at the pasture. He did not speak to Nicholls or Dr Irvine or introduce himself, but did speak to Ms Heck. The question of Mr Kelly's activities when he arrived at the property became something of an issue, and I shall return to it subsequently.
446 Mr Kelly said that he was inspecting the livestock with a view to putting them down. However, when he arrived, he parked his vehicle and then walked around and had a look. He described the state of affairs as very, very poor. He also said that the relevant paddocks had not been sod-seeded prior to 2003, although they were subsequently. There were no lines on the ground as occur with sod-seeding. When shown the bottom photograph on page 6 of Exhibit X, Mr Kelly said that it showed that there had been some pasture renovation done. However, he said that the day that he was there (29 May), that was not done in the paddocks that he looked at. When asked if they were the paddocks where the cattle were grazing, he said that this was not the property that he inspected. None of the marks were there.
447 Mr Kelly was then shown Exhibit H. In photographs 2 and 10 he could see no sign of sod-seeding. He stated that the condition of the bull in photograph 10 was "absolutely disgraceful". He also said that the calf in photograph 10 was in urgent need of a drench. He believed that it would take a calf approximately two to three months to get into that condition. No cattle could get into that condition in 12 or 13 days. In relation to the calf in question, if it was given certain preparations, a drench, fed hay and put on a good pasture, it would recover. Without that, it would die. However, Mr Kelly did not consider that the bull seen in photograph 10 could recover. He then went on to say that, with the appropriate drench and feed, in time the bull would recover, but because this was at the end of May and winter was approaching, it would not last. He also considered that the cattle he had seen in the photographs would not be fit to travel.
448 Returning to the activities of 29 May, Mr Kelly said that the cattle were yarded when he arrived. He then stated that, when he got there, "We started to assess the cattle to see if they were fit for transport". The cattle then went through into the crush and they were assessed. If a cow was not fit for transport, it was shot. The others went back into the paddock where there was hay already provided.
449 Mr Kelly said that he arrived at 2pm. He was not sure at what time he left, but he repeated that he had a very, very busy day. When he left, the people from the RSPCA, the veterinarian and Ms Heck from the Department of Agriculture were still there. There were no other people from trucks there during his stay. He had nothing to do with people from Tesbury.
450 Mr Kelly then said that he assessed some "other cattle" as part of this group before he left. He put a sprayed red mark on them because he did not think that they were fit to transport. They were then to be taken up and assessed after he had left. He assessed them then and there in the yard because, unfortunately, he had to be elsewhere. When he left, the cattle marked with red were still alive. When asked why they were marked with red, he stated that they had pink eye, were sunken in the eyes, were very, very light and would not be able to be transported.
451 When Mr Kelly was there, he did not know whether or not an owner was available and heard no discussion concerning ownership. If he had been told that the owner was coming the next day, he would not have changed anything, because the cattle were going to die and could not be transported. He still would not have changed anything, even if told that the owner was coming the next day with feed. He also claimed that, when marking the cattle, they did not run away from him because they could not. He claimed that, in their condition, they could not move very much at all.
452 Mr Kelly also stated that, when checking on the pasture, he observed approximately 10 or 12 carcasses. The cattle that he did not mark, he assessed as being fit to travel. He did not make a count of the number of cattle that were yarded. He also said that there were two bulls in the yards which were marked and shot. When I asked him whether the situation was that, presumably, they were shot after he had gone (referring to his earlier evidence), he then said that they could have been assessed previously, "and it is 11 years ago" - see T2984. He also said that both bulls were, "very, very, very poor" and said that they were both definitely put down. He then said to Mr Scanlon that he did not know whether the bulls had red marks on them or not.
453 Mr Kelly was then cross-examined. A short part of his cross-examination concerned his behaviour in relation to the service upon him of a subpoena to attend the Court. Difficulties in this regard had been mentioned and discussed from time-to-time over a number of days. I shall not go through cross-examination concerning this issue in any detail. Suffice to say that I was not overly impressed with Mr Kelly's evidence concerning it. However, that is very much a side issue and has no bearing upon the issues to be determined. My assessment of Mr Kelly as a witness, in relation to the substantive matters, was not influenced by it.
454 Mr Kelly said that he had a farm at Garvoc, near Framlingham. He is familiar with the road through the forest but has not walked through it, saying that it is "all trees". He did not seem to be aware of the clearings that have been discussed. In relation to the McKenna block, by the time that he went there in 2003, it would have been 15 or 20 years since he had last been on it. However, he had driven past it and had not seen any substantial pastoral renovations going on. He would have noticed if sod-seeding had occurred. He was less certain if the property had been sod-seeded with annual grasses as opposed to those that last 10 years.
455 Returning to 29 May, Mr Kelly confirmed that he arrived at 2pm. He made a note of the time in his diary, which would now be stored away at home. However, he had not fixed a definite time with Dr Irvine. He stated that, when he arrived, he looked at the clock in his car and wrote down the time. This was so, even though it was not to remind him of his appointment. However, he had not written down the time that he had left the property. He had left because he had another appointment, but he could not remember where.
456 Mr Kelly gave evidence that, when he arrived, there were only three people there that he saw, describing these as "the RSPCA, the vet and the Department of Agriculture". He estimated that he was there for approximately two hours. In relation to the carcasses that he saw, they were approximately 1,000 metres away. He saw them as he was walking, observing the pasture. It was then put to him that he walked about 1,000 metres from where the yards and his car were. He agreed with this more than once. I would refer to T3003. He stated that he walked over to a place which was about 1,000 metres away and there were some dead animals there, which he estimated as numbering 10 to 12. They were not all together, but in different areas. He walked towards the forest. He confirmed again that he got out of his car and went for a walk. He also wanted to see if there was any water in the dam. It was about 1,000 metres away. That was as far as he walked. The dead animals were recently deceased and had not started decaying or smelling. However, he did not observe them closely enough to know if they had been shot.
457 He could not recall any trucks being there, although he did say that, when he got back to the yard, there was a truck there ready to pick up dead stock. Mr Kelly then said that the Tesbury truck was there when he arrived, "parked, ready, before we started to assess". The carcasses were not already being loaded.
458 When Mr Kelly got back to the yard, he spoke to people separately. The people that he spoke to separately were Ms Heck, the veterinarian (Dr Irvine) and Nicholls (the RSPCA). He could not recall being told anything about ownership.
459 The following questions and answers then occurred:
"Anyway, if we go back to the question of walking around the property, if you were there to assess the condition of stock, when did you find that out? --- When I arrived back to the yards.
Who told you that? --- The Department of Agriculture and the vet.
Separately from each other? --- Yes, and we started to assess them." (See T3007)
460 Mr Kelly said that, at that stage, the animals were in two separate yards. Apparently, Mr Kelly and Dr Irvine assessed those in the front pen, and then Mr Kelly said that he had other appointments and he would assess those in the back pen, put a spray mark on them, "Then they have to come through and then be assessed". This would seem to suggest that the marking with red paint did not occur in relation to animals in the front pen. Mr Kelly stated that it was not until, "We were assessing them individually" that he went and got the spray can, and it was following this that the conversation which has just been referred to took place. Those with the spray marks were those which, in Mr Kelly's opinion, could not be moved. Mr Kelly said that the animals were falling over in front of him, so that they were not going to be able to get up a ramp onto a truck. This was not tested, because there was no truck there. He then said that the majority of the cattle that he marked were falling over in front of him. He then modified his evidence somewhat, by referring to animals staggering and falling over, saying that the number that fell over was more than 20. He then said that they got up again, because they had to go through the race and be assessed. He agreed that they got up again without any assistance. I might say that I did not find Mr Kelly's evidence in this regard particularly persuasive, an observation that could be applied to various parts of his evidence.
461 In any event, Mr Kelly confirmed that he moved around in the second yard with his can of paint. He thought that there was some 50 to 70 cattle in that yard. There was plenty of room to move around and assess them. Mr Kelly stated that he did not walk behind the whole lot, but walked around in front of them to assess them, "to make sure with their eyes and everything else" and then walked around behind them and sprayed them. I might say that all of the yarded cattle seen in photograph 30 of Exhibit H appear to have red marks on them.
462 Mr Kelly could not recall whether Ms Heck had been in the yard with him, but he did refer to the fact that there were others assessing, namely, Dr Irvine and Ms Heck.
463 When pressed by Mr Langslow about the assessment procedures, Mr Kelly stated that the animals in the first yard had already been assessed in the crush. Those in the first yard were then let out of the crush if they were not killed. He then confirmed that there was a yard of cattle that were not painted with red at all, because they were assessed first. The ones that were not put down were then let out into the paddock. The first yard was then emptied.
464 In answer to a question of mine, Mr Kelly said that he went to the second yard "because of time" and then marked the ones that he thought were not fit to travel and were to be put down. Then they had to be assessed by Dr Irvine. He then stated that there were some cattle in that yard that were not marked with red paint. There were some in the second yard that he thought were fit enough to stay.
465 When shown photograph 29 of Exhibit H, Mr Kelly was not certain whether it was the first or second yard. He was then taken to photograph 30, where the cattle had red paint on them. Mr Kelly also said that he was not sure whether, after he had gone, the ones that he had marked with red paint were drafted off into another pen. He also said that the method of assessment that he used included an examination of how cattle moved. He was amongst them, moving them, and that was very important. In essence, he also agreed that it was apparent that the animals must have been mustered into the yards before he got there.
466 Mr Kelly stated that, whilst he had gone for a walk and examined the pasture, he did not examine that which was in the west of the driveway or go into the forest. He had seen the cattle on the property prior to 29 May, but from a distance. They were Murray Grey cattle, but he was not sure how long they had been there. He had no recollection of seeing a dividing fence in the paddock. Mr Kelly was shown various photographs from Exhibit H, but had no recollection concerning a fence depicted in them. Mr Kelly confirmed that, after he had marked certain cattle with the red paint, he never saw them again.
467 In a somewhat unusual exchange at T3043 and following, Mr Kelly effectively refused to say why he had gone to check the dam when he arrived, other than saying that he wanted to check it to see if there was any water in it. He denied that he had said that he wanted to see whether the animals had water to drink. He simply kept repeating that he went to check it, saying, "There's nothing wrong with that". Indeed, when asked if he was wanting to make sure that the cattle were getting water, he replied that there was already a trough in the yards. He went on to say that, "There was water in the yards, so I just went for a walk". I shall return to the topic of Mr Kelly's apparently peculiar and time-consuming behaviour upon arriving at Framlingham on a "very, very busy day". Why he was so defensive in the witness box as to his reasons for walking 1,000 metres to the dam is far from clear.
468 It was then put to him that, at the Ballarat Magistrates' Court, he had stated that it was important that livestock have water. He agreed that he had given that answer. He was asked why he thought it was necessary to go and check this when it had been checked by other people there, his answer being that, in checking livestock, it was one of the first things that he did. He also agreed with that answer. It was then put to him that, at Ballarat, he had stated that it was correct that he had formed the conclusion that there was inadequate water at Framlingham. He agreed that he had given such an answer. I might say that it was made clear during the conduct of this case that it was not an issue but that there was adequate water. Mr Kelly seemed to be at something of a loss as to why his evidence before me differed from that in the Magistrates' Court. His explanation seemed to be that he was thinking a little bit clearer now - see T3406. As stated above, Mr Kelly stated that there was water in the yards and so he just went for a walk.
469 Cross-examined further about the water situation, he said that he had not seen the black plastic troughs depicted in a photograph in Exhibit X. He was not certain whether he had seen a concrete trough. He did know that there was a trough in the yards.
470 When shown a photograph of a bull in one of the yards, Mr Kelly could not recall which part of the yards that was. He did see the bull in the crush, because it was assessed there. Shown a photograph of another bull, he could not recall whether it was staggering or not. He confirmed that he saw a total of two bulls.
471 In relation to the Tesbury trucks, Mr Kelly was not sure whether they were there when he arrived, but they were there as the day proceeded. He only saw one truck, which was blue and with high sides. When it was put to him that neither of the trucks seen in photograph 31 of Exhibit H fitted that description, Mr Kelly said that he may have been wrong about the colour. He then said that he effectively wished to retract what he said about seeing the blue truck. He then described where he was standing when assessing the first pen of cattle. He did not see any people from Tesbury at the yards during the time that he was there. The shooting was being done by, "the RSPCA". However, he then stated that he did not stand around to see the shooting because he then went to see the next "beast". It had been a mistake to say that the RSPCA person was doing the shooting. The situation then became more confused because Mr Kelly had said that he had not seen any people from Tesbury, it was not Dr Irvine that was doing the shooting, and he himself did not do any shooting. He then said it was someone from Tesbury that was doing the shooting.
472 Mr Kelly said that he did know Mr Wagstaff, but could not recall whether he saw him on that day. He agreed that his memory concerning things which happened on the day could be faulty, as it was a long time ago.
473 He then stated that the criteria he used when assessing the animals included whether they were staggering, whether they could make it up a ramp, whether there were ribs showing and whether they had "very, very bad eyes with pink eye". He also considered whether they were very light and skinny. He agreed with the proposition that cattle could be thin but strong, and said that he had seen drought cattle that had come down from New South Wales. He agreed that pink eye was a condition that farmers commonly treated and was a common problem, both in relation to healthy herds and unhealthy animals. If an animal was treated for it, it would recover.
474 Mr Kelly said that grass had to be of a height of some four to six inches before cattle could get feed from it whilst grazing and that the grass seen in photograph 22 of Exhibit H was not long enough for them to graze on. He agreed that animals with dark scours would probably recover if given some vitamins and a drench. He also agreed that the general treatment for cattle that had worms was drenching, which can be expected to solve the problem. He said that he could not recall how long it took to perform the walk in which he engaged when he arrived at the property. He was also not sure about how long he remained there. Further, he said that he could not recall the conversation which he had with Dr Irvine when he was first contacted. He did not recall speaking to any people who were at Framlingham before he went for his walk. He had departed before Ms Heck. In relation to signs of sod-seeding, he agreed that he had not inspected the whole property. He had driven past Framlingham on Wednesday, 28 May, but had not observed any people there.
475 In re-examination, Mr Kelly stated that he could not see any marks of sod-seeding in photograph 10 of Exhibit H. Mr Kelly also said that he saw an abnormally large amount of droppings on the property. He saw no signs of sod-seeding on his walk or in photograph 47. In relation to the marking of cattle, Mr Kelly repeated that, in the first yard, they were not marked. He was not present when the cattle from the second yard were put down. However, he assessed that they were not fit to travel, referring to "blight, very, very bad pink eye that had never been treated" - see T3076. Having marked them, he left.
476 In answer to a series of questions of mine concerning the conversation between Dr Irvine and Mr Kelly at approximately 8am on the morning of Thursday, 29 May, Mr Kelly effectively confirmed what he had said in evidence. He agreed that it was not much of a conversation. I then asked him why, on a "very, very busy day", and knowing that he was at Framlingham to assess stock (which were yarded), he went for a walk of approximately 2,000 metres upon arrival. His answer was that he just went for a walk to have a look around. He gave a similar answer to a question of mine as to why he did not talk to or enquire of the people who were already there when he arrived and had not, for example, tried to find out who was the veterinarian who wanted him to be there.
477 Mr Scanlon then asked some questions arising out of my questions. Mr Kelly said that it was a long time ago and he could not recall everything, but he obviously knew after discussions that he was there to assess the cattle to see if they should be put down. He then said that he went to have a look at some watering points, but did not look everywhere. He went and had a look at the dam at the pasture and came back. He said that the RSPCA was there because the cattle were impounded, but when he discovered this was not entirely clear. I then asked him as to how it was that, according to his evidence, he found out he was there to assess the condition of the stock "when I arrived back at the yards". His answer to that was scarcely responsive, being that he had left the car at the yards. When I asked him whether he knew in advance that he was there to assess the condition of the stock, his answer was again not particularly responsive, namely, that he just had a look, he wanted to have a look at the pasture, and then have a look at the water before coming back. He then stated, in answer to a question of Mr Scanlon, that he was there to assess the stock to put them down.
478 I do not regard Mr Kelly as being a particularly satisfactory witness. There are some parts of his evidence which I accept. For example, I accept that he arrived at Framlingham at 2pm on Thursday, 29 May. However, to my mind, considerable parts of his evidence as to what happened thereafter give the impression of reconstruction or guesswork. Despite the fact that Mr Scanlon, in his closing submissions, referred to my demeanour when questioning Mr Kelly as to why he immediately went on a 2,000 metre walk, without consulting anyone, Mr Kelly's account of what he did seems to me to be decidedly odd. According to his evidence, all that he knew was that he had received a brief phone call from a veterinarian whom he had never had contact with before, asking him to be at Framlingham for the purposes of assessing stock. When he arrived there, the cattle had already been yarded and there were people assembled. He drove his car to the yards, checked the time, entered it in his diary, and then immediately "just went for a walk", to use his oft-repeated language. That was a walk of some 2,000 metres. He walked 1,000 metres to have a look at a dam for reasons which, in cross-examination, effectively he would not reveal. He then said that he found out, when he arrived back at the yards, that he was there to assess the condition of the stock.
479 His description of how the assessment of the stock took place does not fit particularly well with the description given by some others. His account of how it came to be that the second yard was filled with cattle that had all been marked with red paint - namely, there must have been a further draft of them, putting them all together - similarly does not fit in with some other evidence. The same could be said of his description of about 20 animals going down when he was moving amongst them and of a considerable number staggering. There seems to me to be a strong hint of exaggeration in this regard. It also seems to me that a doubt must exist as to the speed with which Mr Kelly assessed the animals, despite him listing the things for which he looked. Given the number of animals involved, the time pressures to which he said he was subject, and the initial delay which must have occurred whilst he went for a lengthy walk, a doubt arises in my mind as to the length of time which he spent examining each animal.
480 In summary, Mr Kelly was a far from impressive witness. At least some of his evidence seems to me to smack strongly of reconstruction and exaggeration. I have difficulty in accepting considerable portions of his evidence.
481 Mr Apostolidis is currently the Co-ordinator of Animal Management for Stonington Council, but previously worked for the RSPCA for 23 years, having commenced that employment in approximately 1981. He finished there in 2005, and for the last seven or eight years of his employment was the Chief Inspector. He has a Bachelor of Education Degree in Science, and has undertaken numerous courses in prosecution, animal handling, occupational health and safety and other relevant matters.
482 Prior to 2003, he had been the superior of Nicholls. He could not recall specific serious complaints about him, although there were complaints from time-to-time about inspectors. Nicholls would not have been immune from that. At the relevant time, all complaints would have come to Mr Apostolidis. He could not recall any complaint from Ms Young, but was familiar with her case. Mr Apostolidis had also been a prosecutor for the RSPCA from approximately 1990 until 2005. No prosecutions went forward without Mr Apostolidis having considered them. Mr Apostolidis would see the entire brief, including photographic evidence, videos and the like. Usually once an officer determined that an offence had been committed and had prepared a brief, such matter went to Court.
483 He had seen the photographs in the brief in the present matter prior to it going to Court in 2005. He could still recall the photograph of a cow and a calf dead under a tree, because he found it disturbing. He did not recall many of the other photographs. He had seen one photograph before coming into Court. He stated that the condition of the cattle in the present case was probably one of the worst he had seen in 23 years in terms of starvation of a group of animals.
484 Mr Apostolidis was then taken to Exhibit H and to individual photographs. Apart from the two photographs to which reference has previously been made, Mr Apostolidis had not seen the balance since 2005. He also described how the eye reflex test was the definitive test of whether an animal was still alive. He stated that it takes a long period of time for animals that are in reasonable condition to get to the state of those portrayed in the photographs. I shall not go through all the observations about the cattle and the state of the pasture on an individual basis again. Suffice to say that Mr Apostolidis was of the view that the pasture shown in the photographs looked as if it had been heavily grazed and was more of winter growth.
485 To move live, emaciated cattle would be an offence under the Act. The RSPCA does not need permission from anyone to destroy an animal that is suffering unnecessarily. If the degree of suffering and the like is sufficient, the putting down of the animal may have to occur immediately and without any attempt to find an owner or contact a land owner. If there are no animals that need to be euthanised immediately, efforts would be made to try and locate the owner in order to arrange appropriate treatment. In the present circumstances, the correct thing was to assess those animals that needed to be put down immediately, those that could wait for a veterinarian to attend, and those that were in a condition where they were not in immediate danger. The putting down of animals that need to be killed immediately, the assessing of all cattle and then the ringing of the owner is the correct order of priorities, as was done.
486 Mr Apostolidis said that dealing with a herd was more intense than dealing with a small number of animals. Assessment has to be made of those at the bottom end of the scale and then those at the higher end with some chance of being saved or recovered should be dealt with.
487 In relation to the situation of the owner being notified on a Tuesday and saying that he was coming on a Friday, Mr Apostolidis was of the view that that was way too long. Judging from the photographs, the cattle had needed to be seen by an owner some months beforehand, and also needed immediate feeding and treatment. More animals would have gone down and died between the Tuesday and the Friday. He then said that his recollection was that Nicholls did feed them appropriately and that they continued to be monitored (but it does not seem to me that the evidence supports this proposition, unless Mr Apostolidis was referring to the feed that was given to the surviving animals on the Thursday afternoon).
488 Mr Apostolidis stated that, "You can't wait days and days for someone to turn up when animals are in this sort of condition" - see T2832. Approval for purchase of sufficient hay to feed a large number of cattle would need to have been obtained by Mr Apostolidis. The scenario of looking after animals whilst ownership is established could not go on for any lengthy period of time. Perhaps in that situation the inspector would need to contact the owner of the land, who might be able to provide further details. If there was no co-operation coming from anybody in relation to the animals and there was an ongoing issue with them, the only avenue that may have been left would be to seize the animals, so that they would be removed from the property. Mr Apostolidis did not think that the use of a jig to get recumbent animals up was appropriate, as it would be pointless and probably cause more pain and suffering. Mr Apostolidis referred to the condition of the bull seen in photograph 10 as "appalling". Various cattle in the photographs were described by Mr Apostolidis as being emaciated.
489 Mr Apostolidis could recall a company search being done, but had no recollection of the date and time at which it was received. It had been put to him by Mr Scanlon that it was received at 2.59pm on 28 May 2003. Ultimately, documents in relation to this were tendered.
490 Mr Apostolidis then said that the situation of Nicholls was that he needed to be satisfied when he left the property that there were no animals that were continuing to suffer unnecessarily. However, he would then have to find out where the cattle had gone if they had departed, particularly if he had a concern about their ability to travel. In general terms, in the factual situation that was prevailing in relation to JA Heath Inland Holdings and ownership, when it was indicated that the person concerned was a principal owner of the company, Nicholls' position would be that he should get back to that person, indicating that his or her legal responsibility was that they were at least part owner of the animals and had a responsibility to maintain them in an appropriate condition. However, he could deal with animals that were suffering, whether he had permission from an owner or not. It is not acceptable or legally responsible to walk away from animals that are suffering unnecessarily or unreasonably in order to try and locate owners. For that reason, inspectors are given the power to destroy animals that they believe are suffering unnecessarily. In answer to a question of mine, Mr Apostolidis said that an inspector may say to a person that animals are not be transported. If that person then chooses to move them, they do so at their own peril. They could be deemed to be seen to be causing unnecessary pain and suffering by doing so, which might raise the prospect of a further offence being committed under the Act.
491 Mr Apostolidis said that he had never been posted to a country position. He had filled in when others were on holidays and assisted in operations that needed two officers or more. He had had some dealings with drought affected cattle.
492 When prospective inspectors were interviewed, their communication skills and ability to deal with conflict and confronting situations were examined. In relation to Nicholls, Mr Apostolidis was aware that he had been shot and received a degree of counselling after the incident. He was not aware of the psychological impact of what had occurred.
493 Mr Apostolidis was shown the letter from Nicholls to Mr Peter Barber, State Director of the RSPCA. He agreed that the references to Nicholls having bouts with depression, Post-Traumatic Stress Disorder, difficulty in fronting up to people and the like, were both significant and very disturbing. He had not been told about it. Had he been, he may have changed the way that he managed Nicholls when he was at work. He would certainly have discussed a possible change of role. Getting out of the field that he was in would have been an option, if he was having the difficulties suggested in his letter. Nicholls had also been sent a letter concerning direct contacts with the press, which breached some new standing operational procedures. Mr Apostolidis was not aware of Nicholls having anger issues. Mr Apostolidis agreed that Nicholls had been extremely passionate about his job and about protecting animals.
494 The recollection of Mr Apostolidis in relation to what he had heard concerning the initial conversations between Nicholls and Holdsworth was that Holdsworth denied any ownership at all and actually "pointed to someone else". His recollection was that Holdsworth indicated that the company owned the cattle and he had nothing to do with them. He could not recall Nicholls ever telling him that Holdsworth had said that he knew the cattle and that they were Murray Grey stud cattle. He agreed that this would indicate that, if Holdsworth was not the owner or could not point to one, he had some sort of responsibility, custody and control over the animals. If people agist cattle through a third party, it does not make the third party the owner, but that party is someone who Mr Apostolidis would pursue as having responsibility for the animals. Given the way Holdsworth was talking and describing the cattle, Mr Apostolidis might have thought that he was the owner. Mr Apostolidis said that his recollection was that, after contacting Holdsworth, the frustration which Nicholls expressed to Mr Apostolidis was that he could not find anyone who would accept ownership. There was a denial on behalf of the person whom he thought was the owner, which person did not want to have anything to do with the cattle and kept pointing to other people, who clearly were not the owners. Mr Apostolidis then thought that the next step would have been to locate the owner of the property and see if such person or persons had any ownership of the animals. This would have been done as soon as possible. Mr Apostolidis also said that his understanding was that this was exactly what happened. However, he would deal with the animals in very poor condition first and then continue to and try contact the owner of the property. Mr Apostolidis also said that, if the cattle were in the condition which he saw in the photographs and the veterinarian had said that they were suffering unnecessarily, he would not have waited for a search to come back before destroying such animals. He could not comment on Dr Irvine's view in relation to this.
495 Mr Apostolidis also said that it was his recollection that, whilst Holdsworth had given certain information, up until some considerable time after the animals had been destroyed, he denied any responsibility for them whatsoever. In those circumstances, Mr Apostolidis would have acted in the same way that Nicholls did. Mr Apostolidis said that he would tell the owner of animals what was going to happen to them. However, his recollection was that nothing was forthcoming in relation to taking responsibility from anybody that Nicholls contacted until well after the animals were rounded up. Holdsworth was not doing anything to try to save the animals. Mr Apostolidis also asserted that there was no feed in the forest for the animals. If it were not so, they would have been feeding correctly and would not have been in the condition that they were in. If animals are suffering unnecessarily, they will be put down and timeframes are immaterial. Mr Apostolidis effectively agreed that Nicholls, as an inspector of the RSPCA investigating the matter, would be in control, but he would take advice from the veterinarian. He was also carrying on with the investigation into the following week. He was in control of the investigation. To all intents and purposes, he was in control of the herd.
496 In re-examination, Mr Apostolidis said that there was no legal requirement for a veterinarian to put down animals believed to be suffering. He also said that he knew of no injection which would cause the cows seen in some of the photos to be able to get up. Mr Apostolidis also said that he understood the nature and extent of the injuries suffered by Nicholls when he was shot. His return to work was gradual and Mr Apostolidis felt that he was demonstrating some bravado at times. He was not aware of what had been said by Nicholls in the letter to Mr Barber. Mr Apostolidis was not aware of Nicholls having any anger issues, although he did say that Nicholls would get extremely frustrated. He concluded by saying that what Nicholls had done in this matter was exactly and entirely appropriate.
497 My impression of Mr Apostolidis as a witness was that he was very zealous in defending both the RSPCA, although he no longer worked for it, and Nicholls. I did not gain the impression that he was dispassionate or what could be described as neutral in his approach. It is also to be remembered that he was reliant upon what had been conveyed to him by Nicholls in relation to various issues, rather than speaking from personal knowledge. His evidence had the potential to be considerably affected by my findings in relation to what occurred on 27, 28 and 29 May 2003. Thus, I thought that there were some limitations that might apply to the value of his evidence.
498 I turn now to a summary of the quite lengthy submissions made on behalf of the parties. I shall deal with the submissions in the order in which they were delivered. I should add that counsel for each party spoke to and expanded upon written submissions. It was evident that a good deal of work had been put into these.
499 The submissions of Mr Scanlon and Mr Saunders, which were delivered by Mr Scanlon, could be summarised as follows.
500 In presenting their case, the plaintiffs and their witnesses made a series of extraordinary, untenable and unrealistic allegations. There were many examples of fanciful theories and implausible suggestions, which infect the entirety of the plaintiffs' case. I shall not set out all the theories to which Mr Scanlon referred, but they are numerous. Some of these were mentioned fleetingly, if at all, but there is no doubt that others did receive some attention. These include such matters as the provision and insertion by someone of false ear tags; the depositing of additional Murray Grey cattle at Framlingham during the course of the agistment; the removal of live cattle from Framlingham to Tesbury; the euthanising of cattle because of some alleged connection of the cattle with Mr Geoff Clark and retribution for this; the failure of Nicholls to return an important book to the plaintiffs following the proceedings in the Ballarat Magistrates' Court and several more. At one stage, there was the evidence of Mr Moloney that his house had been "tossed" and there was a written suggestion by the plaintiffs' solicitors that witness protection may be required. The case of the plaintiffs has been marked by serious, unfounded allegations.
501 I might say that there were a considerable number of theories, rumours, speculation and the like that cropped up during the conduct of this case. However, as I shall discuss later, it is a case where, even if the wilder or unproven theories are put to one side, a number of mysteries remain. Returning to the submissions advanced by Mr Scanlon, he described how implausible was a principal theory that was being advanced, particularly by Ellison, that some thief had handpicked and removed the very best breeding animals. The photograph which is allegedly in existence of the tyre tracks leading from the ramp was never produced. The wild and unsubstantiated allegations made and theories suggested infect the whole of the plaintiffs' case.
502 Reference was also made to the evidence of Ellison in relation to the photograph of the old, rotting carcass. Her evidence as to that photograph and when it was taken was entirely unsatisfactory (a proposition with which I agree). It is an indication of the length to which the plaintiffs were prepared to go to protect their situation in relation to cruelty charges.
503 Further, if there was some sort of conspiracy, Dr Irvine, Ms Heck and Roberts must be parties to it. Good quality cattle could not be put down in front of these people, unless they were in some way a part of whatever was occurring. The same could be said of whoever allegedly slammed down the phone in Holdsworth's ear when he rang the Warrnambool veterinary clinic. All this happened in the context of Nicholls exercising powers and responsibilities pursuant to an Act of Parliament for an independent animal welfare charity which relies on community support.
504 The intention of the Act is to ensure the wellbeing of animals and the prevention of cruelty. What was required in the present case was some action. Effectively, drought-stricken cattle were taken to Framlingham and abandoned. It is also ridiculous to say that the cattle got to the condition that they were in during a period of some 13 days after the last visit by Holdsworth and Ellison, when the cattle were allegedly doing well.
505 If Nicholls liked killing animals and was putting them down out of bloodlust, one might ask why he saved any of them, including getting feed for the good cattle.
506 The majority of the plaintiffs' witnesses were not independent. The only ones who could be seen to perhaps be independent were Mr Wagstaff and Mr Keys, and they support the RSPCA's position in any event. (I disagree with the proposition that their evidence supports the RSPCA's position.)
507 The evidence of Nicholls is corroborated by Roberts, Dr Irvine, Ms Heck and Mr Kelly. The evidence of Nicholls was that he was waiting for an owner to take responsibility, but the owner would not.
508 Mr Scanlon then moved to what could be described as the defence of "no vicarious liability", something which had never been pleaded or opened. Ultimately, his submission became one to amend the defence, this being made during closing address after some 36 days of evidence. There was no warning given concerning it. In any event, it required a detailed ruling from me. I refused to allow the defence to be amended in such a way so as to now include what was described by Mr Scanlon as "a complete defence". Indeed, I was critical of him and of the RSPCA. I would refer to the ruling which I gave. Otherwise, I shall spend no more time on this aspect of the submissions.
509 Turning to the various causes of action upon which the plaintiffs rely, the RSPCA submits that they have failed to establish the requisite elements of these. In relation to negligence, there is no breach of duty and, if there was, the damage suffered is too remote and not a consequence of that breach. The plaintiffs put their case in two ways, namely, that the RSPCA has a duty to take reasonable care to preserve the plaintiffs' property and to exercise its statutory powers only in certain circumstances; and, secondly, that the RSPCA has a duty to take reasonable care to ensure that persons whom it appointed as inspectors and to whom it gave authority possessed the mental and psychological characteristics necessary to exercise their powers rationally and responsibly. The latter argument is bad at law, disingenuous and without foundation.
510 The RSPCA denies that it is a breach of its duty to have a servant or agent put down cattle which are emaciated and dying before the very eyes of its inspector. Based on the evidence as to the condition of the cattle and the feed on the property, the steps that Nicholls took and was required to take could not represent any breach of duty. He was ensuring, when exercising statutory powers, that the cattle would not continue to suffer. That cannot be seen as a breach of any particular duty. For example, Nicholls performed the "flicker of the eye" test to establish if a particular cow and calf were still alive. They appeared dead, but there was a glimmer of life, no doubt associated with intense suffering. This caused Nicholls to act in a humane way and bring the suffering to an end. Nicholls acted in good faith, pursuant to the powers given to him by the Act and, in particular, by s21(1)(c).
511 The tests should be looked at on the basis of what confronted Nicholls on Tuesday, 27 May 2003. They should not be seen in the context of the situation at the end of many, many days of evidence.
512 This affair started with an anonymous complaint or complaints. Nicholls attended at Framlingham and was confronted with the carcasses of cattle that had recently died. It is impossible that the cattle would have been like this if they were in good condition 13 days earlier. No aspect of the plaintiffs' evidence should be accepted. In any event, the test in relation to Nicholls should be whether or not he suspected, on reasonable grounds, that on those premises there were animals that were abandoned, distressed or disabled and, if so, whether their condition was such that they would continue to suffer if they remained alive. If that was the situation, he was entitled to put them down.
513 In deciding that some animals should be euthanised, Nicholls acted on his reasonable belief that such animals were distressed and disabled and would continue to suffer if they remained alive. Euthanasia was the humane thing to do. It is worth noting that the plaintiffs were not prepared to concede that any of the cattle seen in the photographs were in any way distressed, referring to them as possibly having a sleep, being alert, and the like. An emaciated, starving animal must, on any view of the evidence, be abandoned, distressed or disabled. Reference is made to the wording of s21(1)(c) of the Act.
514 There was no evidence whatsoever that Nicholls acted pursuant to any ulterior motive. He had no prior knowledge or dealings with either plaintiff, and had no reason to bear any animosity towards them. The plaintiffs tried to advance various theories in order to attribute to Nicholls an ulterior motive, but there is clearly no evidence that Nicholls had so acted. Even if there was competing evidence as to the condition of the animals, it cannot be said that Nicholls did not entertain a belief (on reasonable grounds) that the animals needed to be destroyed. Again, reference is made to the wording of s21 of the Act. In any event, whilst there may have been some competing evidence, it would be difficult to conclude that the cattle were in other than a very poor condition.
515 The photographs in Exhibit H show the condition of the cattle as being consistent with the more credible lay evidence. Reference is made to the evidence of Ms Heck, including her mentioning sunken eyes, something which Mr Kelly also observed. Similarly, Roberts gave evidence that the cattle were in very poor condition. He said that they were destroyed on humane grounds. Dr Irvine advised Nicholls concerning which animals were to be destroyed and referred to his duty as being that of an advocate for the welfare of animals.
516 Mr Scanlon then turned briefly to the questions which I had directed to Mr Kelly towards the end of his evidence. It was submitted that Mr Kelly did not go to Framlingham without any idea of why he was going there. The task must have been to assess the cattle. He knew who Ms Heck was and her role. He knew who Nicholls was, without knowing him personally. When he arrived at the yards, which were surrounded by these people, and saw some of the cattle in poor condition, the reason he was there would have been plainly apparent. Accordingly, he crossed the paddock because he needed to know what the state of the water was.
517 In relation to the sod-seeding, the Court should be satisfied that the photograph taken showing marks consistent with sod-seeding could not have been taken at Framlingham on the day of, or immediately after, the photographs taken by Nicholls. In addition, Mr Kelly had the opportunity to look at the property. The witness who claimed to have done the sod-seeding was uncertain as to the season in which that occurred. The evidence of Ellison should be approached with doubt, bearing in mind her evidence about the time of the photograph of the old, rotting carcass.
518 Mr Rivett also gave evidence that the carcasses that came to Tesbury were very light and he was surprised at the number that could be fitted on the truck. Dr Page described the condition of the cattle generally as being thin, scoring between 1 and 2. The cow that he autopsied was severely malnourished, with severe parasitism. The animal autopsied by Dr Irvine was profoundly emaciated and very underweight. It also had a brittle ribcage, consistent with nutritional deprivation. Dr Irvine's evidence was that the cattle shown in photograph 30, even if provided with nutritional support, potentially were not going to survive.
519 After viewing some of the photographs, Mr Keys described the cattle shown as being in very poor condition and emaciated. The evidence of Messrs Congram, Moloney and Wagstaff was to similar effect.
520 It was suggested that certain of the cattle could have been lifted with the aid of a harness or other device. Given the number of animals, this would not have been possible. If animals could not get up and were incumbent, then they needed to be put down. What Nicholls was confronted with was a disaster. The owners had not looked after the cattle, or given them feed. They had abandoned them.
521 The evidence of Holdsworth was significantly at odds with the photographic evidence. He had a tendency to overstate their condition, saying, for example, that when he inspected the cattle on 14 May, they were in a better condition than that depicted in the photographs. Such a degree of deterioration in a period of two weeks is highly implausible. Holdsworth was also apparently unable to distinguish any difference between the cattle depicted in photographs 29 and 30. It is to be noted that Mr Keys also stated that the cattle depicted in the photographs were unlikely to have reached the condition of the cattle that he saw at Westmere some three weeks later.
522 In relation to the number of bulls, the Court should be wary of accepting the evidence of Mr Congram, which is based upon an invoice which bears the wrong date. There is no evidence that he saw, loaded or counted four bulls. Certainly there is some mystery surrounding the bulls. However, it is certain that two bulls were put down. In addition, the plaintiffs seem to be unable to identify their own bulls in the photographs.
523 The photographs of the cows that were put down caused Mr Moloney to state, effectively, that these were not the cattle which were fit for human consumption that he saw at Tesbury.
524 The evidence of Ellison that, when she visited the cattle in May 2003, they were in good condition and that there were 50 calves "bouncing around" should not be accepted, given the photographic evidence and the evidence of the witnesses.
525 The evidence of Mr Len Clarke that the cattle were in reasonable condition and saveable should not be accepted. He conceded in cross-examination that he wanted to be of assistance to the plaintiffs. Mr Byrne was also of the view that the cattle seen in the photographs were different from those seen at Tesbury.
526 The evidence of Dr Kuseff should be treated with caution. He is a personal friend of Mr David Ellison and is the family veterinarian. He also accepted that Dr Irvine was better placed to assess the state of the cattle, having seen them alive, than he was. He conceded that the issue of deciding whether to destroy animals was dependent on whether an owner could be located.
527 Nicholls' decision was also consistent with the poor availability of feed at Framlingham. There may have been good feed available when Mr Congram arrived in February, but the relevant time is May, when there was effectively no grass. Nicholls could not feed some hundreds of cattle, so he was entitled to destroy them on that basis. Even when Holdsworth was told on Tuesday, 27 May, that the cattle were starving, he did nothing with any urgency. In fact, he knew that he was in trouble and he ducked, stating that the cattle belonged to JA Heath Inland Holdings. With cattle dying and having to be put down, Holdsworth said that they were not owned by him, but owned by JA Heath Inland Holdings. I pointed out that there was a clashing of evidence concerning what was said in this conversation. Mr Scanlon then submitted that Holdsworth's version - that the cattle were owned by JA Heath Inland Holdings, but he was a partner in it - was inconsistent with Nicholls' subsequent actions. Subsequent to that conversation, Nicholls went to the trouble of trying to get to the bottom of the ownership question. If Holdsworth and Ellison came down to Framlingham 13 days prior to the incident (which is highly unlikely), they would have seen the bad state of the pasture and the condition of the cattle. They then should have attended to the cattle immediately.
528 Further, from February to late May, the cattle were never provided with supplementary food or had the services of a veterinarian. Nothing was spent on their care and welfare. The cattle were effectively abandoned after February 2003. The evidence of Dr Irvine was that the grass was in the nature of a "green pick", was heavily faecally contaminated and was likely to produce a high parasite load. Mr Page said that there was very little on the ground, as did Mr Wagstaff. On the basis of the photographs, but not the actual paddocks, Mr Keys stated that three or four acres of pasture per animal would have been required for it to be sufficient.
529 In addition, there was effectively no grass at all in the bush. The cows congregated not in the bush, but in the paddocks. This supports Nicholls' view that the feed in the paddocks was insufficient to sustain the number of cattle agisted there. One can ask why the cattle kept returning to the paddocks if there was a substantial amount of feed in the bush.
530 The photographs taken by Ellison of the two plastic troughs in the bush were clearly not taken on the same day and her evidence in this regard was designed to mislead the Court.
531 The evidence of Mr Geoff Clarke, to the effect that there was ample pasture, should be viewed in the context of the photographic evidence and his concession in cross-examination that the grass in photograph 10 appeared to be heavily grazed.
532 Whilst Mr David Ellison and Mr Rentsch might have said that there was ample feed available in the bush, Mr Rentsch saying that the whole idea was for the cattle to get their feed there, the fact remains that the cattle kept coming back out to the pasture.
533 Dr Kuseff referred to the pasture in the paddocks as being, on the basis of the photographic evidence, a "green drought".
534 It is also to be remembered that Nicholls exercised his statutory powers in consultation with and under advice from a veterinarian and a stock agent. Nicholls' evidence that his decision as to which animals to euthanise was based upon Dr Irvine's advice is clear.
535 Mr Kelly's marking of certain animals with red paint must have been a preliminary assessment by him that they should be euthanised. The final decision was then made by Dr Irvine. Thus, the steps taken by Nicholls were exhaustive. Upon arrival on 27 May, he made contact with Dr Irvine and others and was a party to the engaging of Mr Kelly, through Dr Irvine. There is little more that he could have done. He was in no way moved from his position that he had to euthanise the cattle in a humane way to avoid further suffering. He acted diligently and appropriately. No animal was destroyed unnecessarily, and he was firm in his view that it was absolutely correct to put down the animals that were so put down.
536 He acted appropriately on 27 May by euthanising the animals that were suffering and putting in place a plan to deal with the remainder. There was nowhere else for the cattle to go and the circumstances were urgent.
537 Even if Holdsworth had said that he was a part owner, which is vehemently denied, he gave Nicholls no opportunity to do anything other than the course which was adopted. However, it is highly relevant as to whether Nicholls failed to take reasonable care that, at the relevant time, nobody would take responsibility for the welfare of the animals. Nicholls gave clear evidence that he would not have taken the steps that he did had Holdsworth arranged to meet him at Framlingham on Friday, 30 May. The fact that Nicholls made such a concession is because he is telling the truth. (After a question from me, Mr Scanlon withdrew his earlier statement that, even if Holdsworth had said that he was a part owner, Nicholls had no opportunity to do anything other than follow the course which he did.)
538 In any event, any conflict between Nicholls and Holdsworth in relation to communications between them from 27 May to 30 May 2003 should be resolved in favour of the RSPCA.
539 In relation to phone calls of 27 May 2003, it is bizarre that Holdsworth could not recall the name of Mr Beard, in whose care his prized cattle were. It is Nicholls evidence that Holdsworth effectively said that the cattle were in the care of Mr Beard and Mr Rentsch. In other words, Holdsworth refused to take responsibility for the cattle. Nicholls' evidence about the phone calls, their content and the sequence of them is logical.
540 It is also pointed out that no evidence had been called from Mr Beard, allegedly the person responsible for looking after the cattle. Reference is made to the well-known decision of O'Donnell v Reichard [1975] VicRp 89; [1975] VR 916.
541 The evidence of Holdsworth that Nicholls made no mention of shooting cattle or having veterinarians called to the property, and that meeting on the Friday suited him better, is not logical. Given the urgency of the situation and the calamity facing Nicholls, it is a proposition that gains no support from reality or common sense. It should be accepted that Holdsworth rang Nicholls a second time in order to give him Mr Beard's phone number, and again denied ownership. There were certain problems with Holdsworth's evidence in this regard. Why should he mention JA Heath Inland Holdings at all, rather than simply say that he owned the cattle, either alone or in partnership with Ellison? Secondly, why should he offer the telephone numbers of Mr Rentsch and Mr Beard if he had admitted ownership and had arranged a meeting on Friday, 30 May, which was not urgent? It is more probable that he volunteered that information in an attempt to avoid responsibility. Thirdly, Friday was hardly more convenient for Nicholls, given the situation facing him and the fact that he was visiting Framlingham from Geelong. Parts of this were not put to Nicholls in cross-examination. Fourthly, Ellison's evidence as to an alleged meeting on Friday between Holdsworth and Nicholls is, at best, equivocal. Holdsworth apparently only referred to some appointment and his difficulties in keeping it. She apparently displayed no curiosity in this regard.
542 In summary, the evidence of Nicholls should be preferred. What occurred again demonstrates Holdsworth's disregard for the welfare of his cattle and his inaction.
543 In relation to phone calls on 28 May 2003, Nicholls attempted, without success, to contact Holdsworth at 8.25am, telephoning Westmere and receiving no answer. He also telephoned Ellison, leaving a message. Holdsworth apparently made no effort to contact Nicholls. Nicholls also tried to contact Ellison at 8.26am.
544 In relation to 29 May 2003, Nicholls again attempted without success to contact the plaintiffs. Later that morning, Mr Rentsch contacted Holdsworth and advised that Nicholls was shooting cattle. Instead of contacting Nicholls directly, and one might have thought that he was stirred up by this news, he asked Mr Rentsch to get Nicholls to call him. Nicholls attempted this at 11.51am, but was unable to do so and left a message. In relation to whether messages can be left on Holdsworth's phone, his evidence that this does not occur should not be accepted. The Court should not be satisfied that Holdsworth does not have a message bank, does not know how to retrieve a phone call, and does not know if he has a missed call. Given his occupation, activities and use of a mobile phone, this seems highly improbable. In any event, the notes of Nicholls also refer to him receiving a message asking him to leave a return phone number, which he did. That Nicholls attempted to call Holdsworth is corroborated by Roberts.
545 Despite being told by Mr Rentsch that cattle had been shot, Holdsworth then did no more than await a call from Nicholls. Despite having his number, he did not attempt to call him and did not contact any other body, such as the RSPCA or the police. He did nothing until 5pm. He took no action consistent with his version of events, namely that there was no urgency because of the Friday meeting.
546 Dr Irvine also expressed positively the view that, had he known that the owner was coming the following day, he would not have been a party to what had occurred. Indeed, one can ask, what, if the various theories are correct, was in all of this for Dr Irvine? Why did he behave in this way, putting down good cattle in drought conditions, when such behaviour could be viewed as either criminal or unprofessional in the extreme?
547 In relation to the phone calls of 30 May 2003, Holdsworth has stated that Nicholls tried to contact him whilst he was driving, but he had to put the mobile telephone down because of police being on the roadway ahead. Holdsworth did not pull over and ring back. He went ahead to the bank in Camperdown and did not even try to ring Nicholls back. When he came out of the bank, Nicholls rang him.
548 Other actions taken by Nicholls are also consistent with his evidence that Holdsworth denied ownership of, or responsibility for, the cattle and constitute strong evidence of his proper discharge of his powers under the Act. Nicholls in fact contacted Mr Beard on 28 May. He commissioned a business name search, which established that Holdsworth and Ellison were the owners of the cattle. He again attempted to contact Holdsworth. He spoke again to Mr Beard. He contacted other people about the provision of hay. He again tried to contact the plaintiffs on 29 May and, during the course of that day, took advice from Dr Irvine, together with Mr Kelly. Clearly he had a very strong suspicion - in fact probably knew - who the owners of the cattle were, but was told that this was not so by Holdsworth. If Nicholls knew that an owner was coming on Friday, 30 May, why would he shoot animals that were going to receive care? If there was an owner coming, why would Dr Irvine be a party to shooting them? The evidence of Nicholls should be preferred in relation to the substance of the conversations and the fact that Holdsworth did not take ownership of the cattle, thus refusing to take a responsibility. After the initial phone calls, he made a number of attempts to contact Holdsworth, but Holdsworth rang him only on one occasion. Holdsworth's conduct is not consistent with a person anxious to do all he could to protect his cattle, but is consistent with recklessness and a dismissive attitude towards the welfare of the cattle. There is no contest but that the cattle which Nicholls put down on 27 May needed to be put down. The real dispute is as to the cattle that were put down in the yards on 29 May.
549 The overwhelming evidence is that all the cattle that were put down needed to be because of the circumstances that were created by Holdsworth. To accept the evidence of Holdsworth that there was no urgency and that a meeting had been organised for Friday, 30 May, effectively involves a rejection of a large amount of evidence.
550 In relation to the issue of whether Nicholls was a fit and proper person to exercise the duties of an inspector, the duty of the RSPCA in this regard is admitted - see T3248. The efforts of the plaintiffs to show that Nicholls was not fit to carry out the duties of an RSPCA inspector came to nought. It was alleged against Nicholls, forcefully and at length, that he was not fit to be in the field following the shooting incident in 1999. The letter written by Nicholls to Mr Barber should be seen in the context of the claim that he was making. In fact, he engaged no medical practitioner for the purposes of obtaining treatment for anxiety, depression or Post-Traumatic Stress Disorder. He did not engage or seek the services of a psychologist. He received no treatment. What he in fact got was a direction to see a psychologist organised by his employer, this ceasing after six sessions. No medication was prescribed. He had no time off for conditions such as this. What he engaged in was effectively a debriefing.
551 Nicholls was very much a fit and proper person to exercise the duties of an inspector, and this was confirmed by the evidence of Mr Apostolidis. He undertook his duties very well and performed very well in the present instance, according to Mr Apostolidis.
552 There is no basis for any suggestion that the RSPCA failed, in its duty of care to the plaintiffs, to ensure that Nicholls was a fit and proper person to exercise the duties of an inspector. There is no evidence to suggest that he was not properly supervised or should not have been placed in the position which he occupied. There is no evidence that the RSPCA was on notice of any factor that would lead to a belief that Nicholls was not fit to occupy his position and reference is again made to the evidence of Mr Apostolidis. There was simply no failure to take reasonable steps.
553 The plaintiffs were at pains to attempt to discover evidence of complaints against Nicholls. It was confirmed by evidence of the RSPCA's Chief Executive Officer, Ms Maria Mercurio, that no complaints had been received by the RSPCA against Nicholls (whilst Ms Mercurio in fact gave evidence, I have not included her in the summary because, effectively, such evidence was confined to the discovery of certain documents). The written complaint of Ms Young, when examined, turned out to be in fact a letter addressed to Nicholls concerning Intervention Orders against two other persons. Verbal complaints which she made had nothing to do with the improper treatment or destruction of animals. Further, she claimed that, on each occasion that she made a verbal complaint, she spoke to a receptionist. When Ms Young's mother was prosecuted, she pleaded guilty to a number of welfare-related charges in respect of the cattle under consideration. I repeat that I do not regard the evidence of Ms Young as taking matters any great distance.
554 In relation to breach of statutory duty, the plaintiffs allege that the statutory duty created by the Act was to take reasonable care to preserve any animals to be subjected to the exercise of powers under the Act, and only to exercise such powers when and where authorised by the Act. It is alleged that there was a breach of such duty by the slaughtering, removal and failure to take care to reasonably preserve the cattle. It is apparently alleged that the power to destroy an animal is a power of last resort in circumstances where an animal's suffering cannot be relieved. However, there is nothing in the Act to support the existence of such a statutory duty. The mere fact that an exercise of power is subject to the qualification of belief on reasonable grounds is not a manifestation of legislative intent to create a statutory duty. The Act does not give rise to any private cause of action accruing to someone in the position of the plaintiffs. Reference is made to Gardiner v State of Victoria [1999] VSCA 100; [1999] 2 VR 461. If a statute can fairly be described as being primarily for the general good, rather than for the benefit or protection of only some, that is nowadays regarded as pointing strongly against a parliamentary intention that an individual should be able to sue for non-compliance with the particular provision. The absence of any penalty in s21 for failure to comply can be something which may weigh in favour of the existence of a private cause of action - see Stockwell v State of Victoria [2001] VSC 491. However, there is nothing in the Act that evidences a legislative intent to create a private cause of action for breach of statutory duty. It is an Act that could fairly be described as being primarily for the general good.
555 Turning to the torts of trespass and conversion in relation to the slaughtered cattle, the plaintiffs must establish that they have a right to immediate possession of the property and that the RSPCA dealt with the property in a manner repugnant to the plaintiffs' immediate right of possession. To establish liability pursuant to the torts of trespass and detinue in relation to the missing cattle, the plaintiffs must establish that they had a right of immediate possession in relation to the property; that the RSPCA is or was in possession of the property; that the plaintiffs made a demand for return of the property; and that the RSPCA wrongfully detained the property after the demand was made.
556 In the present case, the Act authorised the RSPCA to deal with the plaintiffs' property in the way that Nicholls did. If the Court finds that Nicholls was justified, pursuant to the Act, in determining that certain animals were to be destroyed, neither he nor the RSPCA can be liable for conversion of the animals. Dealing with the property in that way was not repugnant to the plaintiffs' right of possession, because it was authorised by statute.
557 In relation to detinue, neither Nicholls nor the RSPCA can be said to have had possession of the missing cattle other than for such time as he was on the property at Framlingham. After that time, all the cattle, other than the destroyed cattle, were left at Framlingham.
558 In relation to the 172 missing cattle referred to in paragraph 9 of the Amended Statement of Claim, there is no evidence to support the plaintiffs' contention that Nicholls, or any person acting on his authority or request, removed live cattle from Framlingham and transferred them to some other place. The only evidence of involvement, other than by the RSPCA, is that of Tesbury. In relation to the missing cattle, there are various possibilities. Were they stolen by others? Were some at the property of Mr Len Clarke? Was Mr Beard paid six calves or Mr Len Clarke three? When Nicholls and others conducted a count at Framlingham on 28 May 2003, there were only 260. This may be an approximation, but it cannot be that those counting missed over half the herd, especially given the tendency of the cattle to congregate in the pasture.
559 Concerning bailment, and it is submitted that the situation cannot be more than a gratuitous bailment, the plaintiffs have to establish various things. They have to establish that they delivered an exclusive right of possession of the property to the RSPCA. This could be described as happening inadvertently. It is correct that, for a time, the RSPCA voluntarily undertook to take due and proper care of the property and to return it to the plaintiffs upon demand. It could be said that the RSPCA had assumed responsibility to keep the property safe from death or loss. The plaintiffs must also establish that the defendant had an obligation to return the bailor's property. If the example of one of the autopsied cows is drawn, the RSPCA would have no obligation to return it, because there were reasonable grounds for euthanising the cow.
560 It is not possible for the plaintiffs to make out the existence of a bailment relationship on the evidence. Such a relationship is inconsistent with the statutory powers and duties of the RSPCA under the Act. The power vested in Nicholls to destroy animals in particular circumstances is inconsistent with the voluntary assumption by the RSPCA to take due and proper care of the animals and return them upon demand. In other words, the RSPCA has a power to deal with the property inconsistent with a bailment. Equally, the statutory powers of an inspector are inconsistent with the assumed responsibility to keep the property safe. A distinction can be drawn from the decision in Russell v Wilson [1923] HCA 60; (1923) 33 CLR 538.
561 However, Mr Scanlon agreed with me that if, for example, Nicholls had put down some of the cattle but, when his and the RSPCA's role at Framlingham was effectively over, had departed leaving open all the gates and the remaining cattle had escaped, there would be a foundation for an action in bailment. Mr Scanlon agreed with this proposition. In such circumstances, there would be breach of the bailment. However, he submitted, there is no evidence that any cattle went missing during the period that Nicholls was at Framlingham. There is no evidence that he removed any live cattle. The RSPCA relies on the defence that the loss or damage to the cattle occurred without negligence or default on its part, or on the part of Nicholls - see Rolfe v Investec Bank (Aust) Ltd [2014] VSCA 38. As a gratuitous bailee, the RSPCA is only required to show the degree of diligence that persons of common prudence would generally exercise about their own affairs - see Giblin v McMullen [1868] EngR 30; (1869) LR 2 PC 317.
562 The RSPCA relies again upon the arguments which had been outlined in relation to Nicholls' proper exercise of his statutory powers. In the absence of negligence or default on the part of the RSPCA, it cannot be liable for breach of bailment.
563 There was no duty on Nicholls to electrify the perimeter of the premises or attach locking devices on gates. What he was required to do was treat the cattle and their containment in the manner in which they had been contained by the plaintiffs. There is no evidence that Nicholls, or those with him, left the gates in any position other than closed. He left things as he found them.
564 As a result of a discussion initiated by me, Mr Scanlon submitted that, as at the evening of Monday 26 May 2003, before the RSPCA via Nicholls, may have commenced to be a bailee, there is no evidence as to the number of cattle that were on Framlingham. There is evidence from no one, including the owners, as to the number of cattle present at the date the alleged bailment commenced. For the plaintiffs to succeed, the loss of the missing cattle has to have occurred during the bailment period. The number of cattle there at the commencement of the bailment period is something which the plaintiffs need to establish.
565 Mr Scanlon's closing submissions were as follows. The Court has the unenviable task of choosing irreconcilable bodies of largely oral evidence, apart from materials such as the photographs. The plaintiffs' case is based substantially on bizarre and improbable oral evidence which should be largely rejected. This extends to basically all the plaintiffs' evidence, but is well illustrated by reference to the topic of artificial insemination. Whilst this is a topic that bears on damages, it is instructive to look at it. It infects the other evidence. The evidence about the production of semen is not only hopelessly speculative, but amounts to the fact that the plaintiffs had never extracted any semen from any of their bulls. Holdsworth said that semen had been extracted and stored in a tank in Bairnsdale and described the way in which it had been extracted. Later evidence was to the effect that no semen had been secured. Ellison stated that the partnership already had semen for the project.
566 In conclusion, Mr Scanlon put that, in essence, the alternatives were that either Nicholls was a maniac and a cow killer or he was doing his job. He could not be in between. I made it clear that this was a proposition with which I would not necessarily agree. It seemed to me, as it still seems, that there are other alternatives. Mr Scanlon then altered the proposition to the alternatives that Nicholls either acted "very grossly negligently" in putting down cattle that did not need to be put done or was doing his job. His actions of 27 May could not be questioned. On 28 May, Nicholls continued to go about the obtaining of information, despite the ducking and weaving of Holdsworth. He left a message for Ellison, and there was no evidence from her as to why the message was not received. There is no evidence of negligence in relation to Nicholls' behaviour on 27 May. His subsequent behaviour was perfectly proper. Even if there is a finding that a meeting had been arranged for Friday 30 May and some cattle were put down unnecessarily, there can be no finding against the RSPCA in relation to bailment or its breach. In relation to the cattle that were put down on 29 May, the question remains as to why Nicholls, if he believed an owner was coming on 30 May, would act in a way totally inconsistent with such belief. Nicholls did not have an owner who was helpful and was prepared to admit the situation or to arrive at Framlingham. He was faced with dealing with a large mob of cattle.
567 The submissions of Mr Langslow and Mr Berman, advanced by Mr Langslow, are as follows. Mr Langslow also spoke to written submissions.
568 There is little argument but that the cattle involved were drought cattle. This was particularly so in the area around the plaintiffs' stud farms. In an effort to preserve the breading lines of stud Murray Grey cattle, the plaintiffs had obtained permits to enable the herd to travel along stock routes. This was so as to enable the herd to be maintained and kept alive. It is the uncontested evidence of the plaintiffs that they went to great lengths and expense to preserve their prime breeding cows and bulls, which they transported to Framlingham. They had effectively run out of food on their own properties in New South Wales.
569 Through Mr Rentsch, and his good relationship with the owners of the Aboriginal Trust, the agistment was organised at Framlingham on the basis of certain conditions relating to fencing and the like. The plaintiffs had previously gone through some sensible culling by way of sales and transfer of cattle to Bairnsdale. In summary, they were very passionate and determined about preserving the core of their herd, which went to Framlingham. At Framlingham, unlike elsewhere in south-eastern Australia, there was green grass. It is also obvious that the cattle would have a different appearance compared with those normally found in the area.
570 Subsequently, Nicholls, exercising powers given to him pursuant to the Act, entered Framlingham, along with Ms Heck and Dr Irvine, without the consent or permission of the landowner or of the plaintiffs. This was for the purposes of culling the herd. That is established by the evidence. The RSPCA contends that the subsequent putting down of the animals was pursuant to the Act and that it was not negligent in its care of the remainder. What is put on behalf of the plaintiffs is that the slaughter of the animals was not in accordance of the Act, because Nicholls knew that the cattle were not abandoned.
571 Nicholls was not concerned as to the condition of the animals individually but, at best, was engaged in a husbandry exercise. He gave no proper consideration to the exercise of other non-lethal powers under the Act. His basic powers were to feed, treat or kill the animals. He took the kill option. He also had the option to move the animals, but this would depend upon whether or not that was feasible.
572 On Tuesday, 27 May, Nicholls had two telephone conversations of length with Holdsworth. In the earlier one, Nicholls informed Holdsworth that he had received a complaint about the cattle at Framlingham and that he was investigating this. Holdsworth gave evidence that he said to Nicholls that the cattle were stud Murray Grey cattle, of which he was a part-owner in a partnership named JA Heath Inland Holdings, the other partner being Ellison. He said that they owned the cattle and that 496 cattle had been transported to Framlingham in February for agistment organised through Mr Rentsch. Holdsworth gave evidence that he told Nicholls the history of the herd prior to them being transported to Framlingham, where there was adequate feed and water. He told Nicholls of the arrangements made with Mr Rentsch, who regularly inspected cattle for his brother-in-law at Framlingham, and that Mr Rentsch would contact him if there were any problems with the cattle in question. He also told Nicholls that he had arranged for Mr Beard to inspect the cattle regularly, check water troughs and the like. He gave evidence that he and Ellison regularly attended at Framlingham to check on the cattle. He also stated that, at no time prior time to the evening of Thursday, 30 May, did Nicholls tell him that some cattle had been killed or warn him that he was planning to destroy more animals in the herd. Holdsworth was not told that there had been two veterinarians at Framlingham. It is also Holdsworth's evidence that, immediately after the cattle's arrival at Framlingham, he was there daily for a period of time, until he was satisfied that the cattle had settled in. He was also attending to the infrastructure. He is a man with much farming and cattle experience and a very good judge of cattle and their condition.
573 Nicholls gave a different version of the conversations he had with Holdsworth. The essential difference is that, despite all the information which Holdsworth divulged to Nicholls regarding the cattle, he denied being the owner or having any responsibility for them. This is inherently improbable. Holdsworth had not only a property interest in the animals, but a passion for them demonstrated by his attempts to preserve them. Holdsworth provided information so that Nicholls could speak to Mr Rentsch and Mr Beard. The conversations with Nicholls on the evening of Tuesday, 29 May, exceeded 40 minutes. It is inherently improbable that Holdsworth would provide Nicholls with the names and telephone numbers of people who could "check up on him". If, at best, there was a misunderstanding, it was one not of Holdsworth's making, but of Nicholls'. In addition, there is substantial evidence that an arrangement was made to meet at Framlingham on Friday, 30 May.
574 In his evidence, Nicholls made it perfectly plain he knew that Holdsworth was the owner of the cattle at all times. The basic position is that Nicholls knew that Holdsworth was one of the owners of the cattle and had regular assistance checking on their welfare pursuant to his arrangements with Mr Rentsch and Mr Beard. Nicholls knew that Holdsworth intended to meet with him on the Friday afternoon at Framlingham in order to discuss the matter. He had carried out a search of JA Heath Inland Holdings and received confirmation that Holdsworth was one of the owners. Whilst he denied making the arrangement to meet the plaintiffs on Friday, 30 May, in evidence Nicholls conceded many of the facts that Holdsworth said he had told Nicholls during the telephone discussions on Tuesday 27 May.
575 Significantly, Mr Rentsch told Nicholls, on the morning of Thursday, 29 May, that Holdsworth had said to him that he had arranged to meet with Nicholls on Friday at Framlingham. Mr Rentsch gave evidence that he told Nicholls this on the morning of Thursday, 29 May, and this was not challenged in cross-examination.
576 The length of the telephone calls on Tuesday, 29 May, and the substance of what was discussed in them, show that Holdsworth was quite prepared to openly engage with Nicholls about the cattle. It is inconsistent with the behaviour of a man who is denying responsibility for them. There is no doubt but that he was a part-owner. In addition, he cannot be criticised for saying that the actual owner was the partnership, JA Heath Inland Holdings. That was the truth of the matter.
577 In his evidence, Nicholls conceded many of the matters which Holdsworth said had been discussed. He also agreed that he knew Holdsworth was at home in the Western District when he spoke to him. Apart from the many matters that were discussed, it was acknowledged by Nicholls that Holdsworth had left his telephone number with Ms Ryan and had asked her to ring him if there were any problems with the cattle. Nicholls stated that he believed that all these things indicated that Holdsworth was the proprietor of the cattle. Nicholls could not remember whom he asked about ownership. It is inherently improbable that Holdsworth, having disclosed all the information, would attempt to deny that he was anything other than a part-owner. It is repeated that Nicholls could not remember how he asked about ownership - see T2637. It is neither evasive or inaccurate to make the truthful statement that JA Heath Inland Holdings owned the cattle.
578 Nicholls gave evidence that he said that he would have to put some cattle down if Holdsworth did not do something about them. Holdsworth gave evidence that Nicholls said nothing about putting cattle down. The question might be asked as to why Nicholls told Holdsworth that some cattle would have to be put down if nothing was done about them if Holdsworth was asserting that he was not the owner. In any event, Holdsworth gave uncontested evidence that there was an undertaking by Mr Rentsch that he would ensure that the cattle had plenty of water and would notify Holdsworth if there were any problems with them. It is also clear that Holdsworth and Mr Rentsch remained in regular contact and Nicholls was informed of this. Mr Rentsch gave evidence that Holdsworth was quite often at Framlingham. He would call in at Mr Rentsch's establishment or ring.
579 That Holdsworth had an appointment in Griffith on Thursday, 29 May, is not contested. The phone records show that he is a hardworking and diligent man and put a large amount of effort into attending to his duties. I will not go through it in detail, but there is no doubt but that, from Thursday, 22 May onwards, Holdsworth engaged in a large amount of driving in order to attend various tasks, the driving taking him back and forth from New South Wales. It was submitted that this shows that he was a man who was prepared to make real efforts to fulfil his business obligations. On Wednesday, 28 May, he had no communication from or to Nicholls. The phone records would show that he was at Westmere until around 6.30pm. The next morning, 29 May, he was in Griffith. At about 1am on 30 May he was in Deniliquin, and his first call on his mobile phone in Victoria was at 7.15am from Framlingham. It is to be remembered that it is the evidence of Mr Rentsch that, after he gave Nicholls the slip of paper with Holdsworth's phone number on it, Nicholls said that Holdsworth would not answer the phone and put the piece of paper in his pocket. He then seems to have gone to his car and attempted to ring from a mobile phone cradle in the car. It is put by the plaintiffs that he did no more than go through the motions and made no real attempt to contact Holdsworth.
580 What the phone records show, in relation to the night of 29 May and morning of 30 May, is that, despite the large amount of driving he had done in the preceding days, Holdsworth drove without sleep and went to the property at Framlingham.
581 It is submitted that Holdsworth is a straightforward and direct man. He deals honestly with people and people like him. Reference is made to what was said by Mr Len Clark. It is apparent that he also expects people with whom he is dealing to be straightforward. It is asserted that he made an arrangement to go to Framlingham to meet Nicholls on Friday, 30 May, as he did in relation to the appointment on 17 June at Warrnambool Police Station, which he kept, but which Nicholls did not. If Holdsworth had the slightest idea that the animals at Framlingham were in immediate threat from Nicholls, that would have been his first priority and he could have put off his cropping at Westmere and gone to Framlingham on Wednesday 28 May. Instead, in endeavouring to fit in the various things that he had to do, he made an appointment for Friday, 30 May. Evidence about the diligence of Holdsworth has been given by Ellison.
582 In addition to having actual knowledge of Holdsworth's proprietary interest in the cattle, Nicholls effectively conceded that he had constructive knowledge, including information that he obtained during discussions with Holdsworth and from the discussions with Ms Ryan and Ms Heck on 27 May 2003. There was also a discussion with Mr Rentsch on the morning of 29 May in which Mr Rentsch said that the cattle belonged to Holdsworth. Nicholls also had the benefit of the business name search result. He had the benefit of the information which Mr Beard possessed, as well as knowing of the fact that Holdsworth had left phone numbers with Ms Ryan (who was not called as a witness).
583 In addition, it must have been apparent to Nicholls that Holdsworth knew a great deal about the history of the cattle and the number transported to Framlingham, that he had arranged the erection of the new fencing, that he knew that they were drought cattle from New South Wales, and that they were valuable stud Murray Greys. It is also apparent that Holdsworth told him he could not meet him at Framlingham on 29 May due to a pre-existing appointment in Griffith. Even if Holdsworth had not said specifically that he was the owner of the cattle, the knowledge of Holdsworth's proprietary interest should be imputed to Nicholls. Reference is made to the decision of the High Court of Australia in Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22. That decision, in turn, referred to and approved the decision in Baden v Societe Generale [1992] 4 All ER 161. Knowledge can include such things as wilfully shutting one's eyes to the obvious, wilfully and recklessly failing to make such enquiries as an honest and reasonable man would make and knowledge of circumstances which would indicate the facts to an honest and reasonable man. Those principles apply in relation to the situation with Nicholls in the present case.
584 On 28 May 2013, Holdsworth was working only a little over an hour away from Framlingham at his home property at Westmere all day until the evening. Had he known what Nicholls was planning to do, he could, and would, have attended at Framlingham. The phone records in fact show that Nicholls made no attempt to contact Holdsworth at all on that day, despite his evidence to the contrary. Despite having actual or imputed knowledge of ownership, Nicholls proceeded on, 28 May, to make arrangements to kill the plaintiffs' cattle on 29 May 2013 on the pretext that such cattle were abandoned and that no person who would take responsibility for the care of them could be found. He concealed the state of his knowledge about ownership and about his Friday appointment at Framlingham with the plaintiffs from those whom he enlisted to assist in his activities, or failed to disclose it fully to them. He failed to ensure that Holdsworth and Ellison were informed of his intentions. They were only so informed when they were out of the State and unable to intervene. He made arrangements with Dr Irvine, Ms Heck and Tesbury (for the sending of trucks) before he even attempted to contact Mr Rentsch. On 29 May, he proceeded to direct that the plaintiffs' cattle be destroyed without having made any sufficient or reasonable attempts to advise Holdsworth of what he intended to do. He ought to have made a greater effort than making a single phone call and leaving a message. After his telephone discussions with Holdsworth on the night of 27 May 2003, Nicholls knew of the facts and circumstances which would indicate that Holdsworth was the owner or part-owner of the cattle and that Messrs Rentsch and Beard were involved in their care or supervision. Holdsworth had also left his name with Ms Ryan. All of this hardly shows a lack of interest or care.
585 In summary, Nicholls, in proceeding to make arrangements for the killing of the cattle on the pretext that they were abandoned, wilfully and recklessly failed to make such enquiries as an honest and reasonable man would make. On 28 May, he failed to contact Holdsworth, who was nearby at his home all day. Nicholls proceeded to direct that the plaintiffs' cattle be destroyed on 29 May without having made any sufficient or reasonable attempts to advise Holdsworth of his intentions. He had the imputed knowledge, if not the actual knowledge, that Holdsworth was the owner of the cattle and that Messrs Rentsch and Beard took some interest in their welfare.
586 On Tuesday, 27 May, at the time Nicholls spoke to Holdsworth, Holdsworth was at Westmere, having driven down from Carrathool to engage in cropping. Ellison had been left at Carrathool until Thursday, 29 May, without a car because Holdsworth had to return on that day for the bank appointment in Griffith. If it was necessary for Holdsworth to go to Framlingham in order to meet Nicholls on Wednesday, 28 May, he could have done so. He was shocked when he learned that Nicholls had taken the action which he did, despite the arrangement to meet, saying that Nicholls was not a man of his word. Ellison gave evidence that Holdsworth had told him of an appointment that he had at Framlingham on Friday, 30 May, when he arrived at Carrathool on the night of Wednesday, 28 May. It is submitted that, unlike Holdsworth, Nicholls is not straightforward and direct. He seems to operate on a "need to know" basis, regarding people in Holdsworth's position as opponents and potential defendants. He did not properly inform himself concerning the Framlingham property, or properly inform others of significant facts. He said in evidence that he did not believe that he told Dr Irvine that the cattle were abandoned. He could not recall whether he told Dr Irvine about such things as the cattle being on the "long paddock". He may have said, after the killing had been done, that the owner had said that he would attend on the Friday, but also said that he could not be trusted to comply with that commitment because of his poor compliance with requests to date. At that time there had not been any requests and failure to comply with requests.
587 Holdsworth's evidence is that he had the banking appointment in Griffith on Thursday, 29 May, and, as a result, he made an appointment with Nicholls for himself and Ellison to meet him on the afternoon of Friday, 30 May. Holdsworth's evidence, in relation to that appointed meeting, is supported by Mr Rentsch, who gave evidence that he informed Nicholls, during a discussion with him at Framlingham on the morning of Thursday, 29 May, that Holdsworth had told him before going to New South Wales of his Friday appointment with Nicholls. That evidence was not challenged. That Holdsworth went to New South Wales late on Wednesday for the Thursday meeting in Griffith is also uncontested. The evidence of Mr Rentsch in this regard is supported by the phone records which show a lengthy call between Holdsworth and Mr Rentsch at 8.41pm on Tuesday, 27 May, and another lengthy call at 5.59pm on Wednesday, 28 May. Ellison's evidence concerning the conversation at Carrathool about the Friday appointment was not challenged.
588 Holdsworth thought that the cattle were holding their own at Framlingham and, in fact, improving. He clearly cared for his cattle. He did not perceive an immediate threat to their existence. Had he understood that they were under threat, he would have gone immediately to Framlingham to deal with the matter. His behaviour in not going to Framlingham on Wednesday, 28 May, is consistent with him not having an understanding of any immediate threat to the herd from Nicholls. It is consistent with Nicholls failing to disclose to him the action he had taken on Tuesday, 27 May, and the steps that he had in mind for the following days.
589 This submission is also supported by the admission which Nicholls made to Dr Irvine after the killing of the animals on Thursday, 28 May. At T2276, Dr Irvine was questioned, and answered as follows:
"Q: He told you after all the killing had been done on the Thursday that in fact the owner had said that he was unable to be there before the Friday but he would be there on the Friday to discuss the matter?---
A: Yes, he made a comment to that effect on the Thursday night, late afternoon."
590 Dr Irvine went on to say that if he had known this on the Wednesday night or the Thursday morning, it would have "absolutely made a difference to the course of action". He would have said that the animals, or the bulk of them, could clearly last until Friday and that they should wait until the person concerned gets there. He had no prior belief or suspicion that an owner was coming on the Friday.
591 Holdsworth had informed Nicholls that the whole of the forest area and paddocks was available. He informed him about the erection of the electric fencing. Nicholls neglected to examine the grazing in the forest, despite having seen manure from the cattle along the electric fence line. His assertion that the Aboriginal Trust had released the cattle into the eastern portion of the McKenna block was supported by no evidence and was in fact untrue. Nicholls failed to examine or assess both the forest area and the western portion of the McKenna block, based on his mistaken assertion that the cattle did not have access to it. Part of his duty of care is to know what he is talking about in relation to the amount of feed available. Failure in this regard caused Dr Irvine to proceed on the mistaken belief that the cattle were confined to the eastern portion of the McKenna block. Thus, Dr Irvine proceeded on a mistaken understanding regarding the extent of grazing available. Given the lack of inspection of various areas by Nicholls and those with him, they cannot be heard to disagree with the evidence from Mr Geoff Clark, Mr Len Clark, Mr Rentsch, Mr David Ellison, Mr Congram and the plaintiffs that there was adequate feed and water for the herd throughout Framlingham, including good grazing throughout the forest. Those with Nicholls proceeded on the basis that the cattle were limited to the eastern paddocks of the McKenna block, whereas the evidence shows that the herd had available the whole of that block on both sides of the drive and 3,000 acres of forest.
592 In a brief discussion between Mr Langslow and myself, I said that my preliminary impression of Dr Irvine was that he was a reasonably impressive witness and that, subject to checking the evidence, I would not have a great deal of criticism in relation to Ms Heck. Mr Langslow agreed with both these propositions - see T3332.
593 Nicholls was prepared to assert that there was no feed in the forest without ever having properly inspected it. He agreed that it was a huge area and that there was some evidence that cattle had been in it. Mr Rentsch gave evidence that, at the outset, the fence was cut so that cattle could move between the paddocks and the forest. Roberts gave evidence that, on the morning of Wednesday, 28 May, approximately 260 cattle were counted. This would not have included cattle in the forest area, save for three or four that Roberts found when driving around. The drive that was described would show very little about what was in the forest or the grass available there. It was also the recollection of Ms Heck that the fence was broken and that the cattle that were mustered did not come from the forest. Ms Heck said that she did not go onto the property to the west of the driveway on any of the three days that she was there, probably because she did not know that it was part of the property. In relation to the feed generally available, Mr Congram gave a description of it as being something like a foot or 18 inches high in February.
594 Mr Rentsch, when referring to the drive taken with Holdsworth at the time of his first inspection, stated that there was plenty of feed "in the bush". Nothing else had been in there. The whole idea was to get the feed out of the bush. This is consistent with the putting of two large plastic water troughs at the margin of the forest so that cattle grazing in it would have easy access to water and the situation could also be checked by Holdsworth, Mr Rentsch and Mr Beard. This was organised at the time of entering into the agistment agreement. Ellison described the property in February 2003 as being the first green grass that they had seen for many months.
595 Perhaps the most comprehensive survey of the feed available in the forest at the time of Nicholls' intervention is that of Mr David Ellison. His evidence in this regard was not challenged. He estimated the forest area to be in the order of three to three and a half square kilometres, not including the "300-odd" acres of paddocks at the front of the property. On Saturday, 31 May, using a motorcycle, he mustered various cattle that were in the forest, these being in small groups. He would push them back into the yards, and go out looking for more. He returned back every one and a half to two hours with small lots of cattle. His evidence was that, in the forested area, the feed was very good. There was exceptional feed at the beginning of the forest, with long, green grass. The bush was full of native grasses. It was heavily timbered, but there were grassed areas. Mr David Ellison said that he was dumbfounded that the rest of the cattle were being moved off the property because Nicholls had threatened Holdsworth that he would shoot them if they were not moved. It was bewildering to Mr David Ellison because he had travelled around extensively, including up to Carrathool, and essentially there was not any grass anywhere. He stated that there was feed all the way through the block. Evidence of this nature shows that it was purely careless and negligent for Nicholls to jump to the conclusions which he did concerning the absence of feed in the forest area. It is repeated that the evidence of Mr David Ellison in this regard was effectively unchallenged.
596 The evidence of Mr Geoff Clark was to the effect that there was plenty of good feed in the forest, with a number of dams. He stated that 2003 had been a good season. He stated that there was plenty of pasture in the paddocks in February, although it had obviously been consumed by May. He confirmed that the land on which the cattle were was the McKenna block portion to the east and west of the drive, and the forest. Mr Len Clark gave evidence that there was grass growing throughout the forest, and that it had been traditionally used for cattle. There were flat areas in there. It is to be remembered that these were drought cattle and the condition of those that were feeding calves was going to be pulled down. Cattle can be lean but strong. Many of the images in the video show cattle grazing and being able to move freely.
597 Ellison stated that she had been to Framlingham quite a few times between the end of February and the end of May, because she had spent some time at Westmere. Her last visit was about a fortnight before the end of May and she noticed that there were about 50 new calves "bouncing around" and that the cattle were doing well. Mr Langslow said that he apologised to some extent for her "overenthusiasm", a description with which I agree.
598 Ellison stated that, on her last visit to Framlingham before the intervention of Nicholls, she had a look at the stock and had a long walk around the paddocks and into the bush. The newborn calves were not in trouble, and showed no signs of having bad front legs or having any lack of magnesium, minerals or calcium. One of the first signs to be noticed, if there is anything wrong with the health of a cow, is a bowing of the front legs, and this was not seen. She stated that the grass in the paddocks was short, but the cows enjoyed it. The 50 newborn calves had not been yarded prior to the arrival of Holdsworth and Ellison at Framlingham on 30 May. If the cattle were not healthy, it would have shown in the calves, but they were bouncy and strong.
599 Nicholls had been told by Holdsworth concerning the areas, including the whole forest, where the cattle could graze, but failed to disclose this to those who were on the property. This failure to disclose affected the decision-making of Dr Irvine. Roberts, Dr Irvine and Ms Heck all thought that the only grazing available was on the eastern paddocks of the McKenna block. Dr Irvine freely admitted that he had not examined the pasture available in the area between the driveway and the Hopkins Highway.
600 It is also put that there was no proper, pathological evidence produced showing that any of the cattle were in trouble as a result of starvation. In any event, what is found in one or two animals cannot be extrapolated across the remainder of the animals.
601 It is put that the RSPCA breached its duty of care to the plaintiffs. The RSPCA owed a duty of care to them, both at common law and under the Act. Its duty was to take reasonable care to preserve the animals and only to exercise powers that it had when authorised so to do by the Act. The defendant owed a duty of care to the plaintiffs to ensure that Nicholls carried out his duties in compliance with the Act and with the reasonable care, skill and diligence expected of a reasonable and prudent inspector. It owed a duty to properly supervise him in the performance of his duties. The duties include that of an inspector to take all reasonable care to preserve animals and to exercise the powers with due caution and prudence and only when authorised by the Act.
602 It is submitted that the RSPCA was negligent of itself and vicariously liable for negligent conduct of Nicholls. It was clearly foreseeable that the plaintiffs would suffer economic loss and damage if their cattle were unnecessarily destroyed or removed by the RSPCA. The plaintiffs' rights and interests were proximate and vulnerable to the exercise of the powers of the RSPCA.
603 Without the knowledge or consent of the plaintiffs, the RSPCA, through Nicholls, took control of and exercised complete dominion over the plaintiffs' herd. Nicholls ordered or directed that cattle belonging to the plaintiffs be destroyed in circumstances where the cattle did not need to be killed. Further, despite the provisions of s21(1) of the Act, the RSPCA failed to preserve, care for or maintain the cattle and, through Nicholls, directed that the cattle were not to be treated by the veterinarian retained by Nicholls. The RSPCA failed to take reasonable care to preserve the property of the plaintiffs. It disposed of the slaughtered and missing cattle otherwise than in accordance with the provisions of the legislation.
604 When I asked Mr Langslow concerning the position in relation to the missing cattle, he stated that Nicholls had introduced people onto the property and had created the belief, or specifically said, that these were abandoned cattle with no owner. This created an opportunity or circumstance where people might avail themselves of a significant opportunity to remove any number of cattle. This would have been a significant event and one that would have created a good deal of discussion in the community. Knowledge in relation to the "abandoned" animals would spread quickly and opportunists could take advantage of the situation. Until Nicholls was prepared to relinquish his control or dominion over the animals, and this clearly did not occur until the following week at the very earliest, and in circumstances where a large number of people were aware of the situation, Nicholls was still responsible for the animals and for that situation, which he had created.
605 Pursuant to the Act, before animals can be destroyed there must be reasonable grounds that such animals are abandoned, distressed or disabled. Even then, the putting down of cattle can only take place if it can be objectively determined that the animals' condition was such that they could not properly be treated. Nicholls misinformed Dr Irvine, wrongfully telling him that the cattle were abandoned. He directed that the cattle be destroyed without having obtained any informed advice from Dr Irvine that the cattle should be destroyed. In other words, he kept from Dr Irvine important information which would have made a very significant difference to the decision-making process of Dr Irvine.
606 In contravention of the Act, Nicholls destroyed or directed the destruction of the cattle without properly considering other means of relieving their condition. Despite the provisions of s21(2A) of the Act, Nicholls engaged in such destruction without first making reasonable enquiries, without first advising the owners or the person who had possession or custody of the cattle (including the land owner) and without giving such persons an opportunity to arrange for a veterinary practitioner of his or her choice to undertake any required treatment.
607 Dr Irvine gave evidence that Nicholls' position was clear, namely that he was not going to have Dr Irvine treating individual animals at all. Dr Irvine referred to a husbandry decision, which effectively meant the culling of the weakest animals in order to preserve the strongest. This is very significant. If treatment is possible, it should be tried. As was said by Dr Kuseff, killing is a last resort proposition. That is also apparent from the provisions of the Act. The RSPCA failed to prevent the cattle from being destroyed or to ensure that they were secure from being taken from the property.
608 Further, it was the belief of Dr Irvine that the defendant had taken ownership of the cattle in respect of what was occurring. He had not been given all the available information. For example, he was not aware that they were animals that had been on stock routes for in excess of a year, walking long distances, and were drought cattle.
609 Dr Irvine repeated several times that his understanding was that no one owned the animals, but that the RSPCA had taken jurisdiction or ownership of them in respect of what was going on. He had information to this effect from Nicholls at least by Wednesday, 28 May. If there were owners and feed was going to be provided, he would probably only have destroyed those that were unable to rise or walk to the stockyards. Further, he told Nicholls that. This effectively means that all the cattle that got to the yards should not have been put down.
610 Further, the RSPCA was negligent in employing Nicholls. It owed the plaintiffs a duty of care to take reasonable care to employ reliable and trustworthy employees who were suitable and fit to deal with the situations that may arise. It had a duty to ensure that persons whom it had appointed as inspectors possessed the mental and psychological characteristics necessary to exercise their powers rationally and responsibly, particularly in relation to s21 of the Act. In breach of its duty, the RSPCA issued Nicholls with a gun and assigned him to carry out duties as an inspector in the field, which duties involved confrontational situations. It did this despite the knowledge that Nicholls had suffered a traumatic experience, undergone months of psychological counselling, suffered from various conditions and was having serious difficulties in dealing with confrontational situations, these causing him to break out in a cold sweat. When the RSPCA became aware of these things, it should have removed Nicholls' authority to act, ensured that he was accompanied by another officer of the RSPCA when exercising his powers, or removed or alternatively monitored his authority to use firearms.
611 Particular reference is made to the letter written by Nicholls to Mr Peter Barber. What Nicholls stated in that letter may explain the failure of Nicholls to speak to or confront Holdsworth on a number of occasions. When the slaughter of the animals took place on 29 May, Holdsworth was in Griffith and not in a position to intervene or interfere. On Friday, 30 May, Nicholls failed to seek Holdsworth out when Holdsworth was in the Warrnambool area and was at the property on two occasions. No attempt was made by Nicholls to get in touch with Holdsworth until Nicholls was back in Geelong. When Nicholls and Roberts went to Westmere the following week, they made no attempt to speak to Holdsworth in advance or whilst they were there. There was no attempt to speak to him either on the phone or at his home. Then, having made an appointment with Nicholls at the Warrnambool Police Station on 17 June, Nicholls did not arrive, his excuse being that he wanted to confirm with Holdsworth that Holdsworth was going to attend. Of course, Holdsworth did attend at the Warrnambool Police Station and waited all day for Nicholls. This could well be seen as part of Nicholls' inability to face up to somebody who may be hostile. On the weekend of 31 May and 1 June, Nicholls must have had information from Dr Irvine, he having been asked to keep an eye on the property and the animals, that Holdsworth and others were at the yards. Nevertheless, Nicholls made no attempt to get in touch with Holdsworth. This was either because of a guilty conscience or a psychological difficulty about confronting Holdsworth in person.
612 In breach of its duty of care, the RSPCA failed to remove the authority of Nicholls or to ensure that, when exercising his powers under ss18 or 18A of the Act, he was accompanied by an officer capable of moderating or modifying Nicholls' reactions to a situation. Roberts, who was with him, was a probationary inspector.
613 Mr Apostolidis gave evidence that he was not aware of the letter from Nicholls to Mr Barber in which he stated that he had serious problems in carrying out his duties when confrontation was involved. Mr Apostolidis said in evidence that he was very disturbed by this revelation. When asked what he would have done had he known, Mr Apostolidis said he would have reassigned Nicholls to prosecutions or other areas away from fieldwork. In making this statement, Mr Apostolidis, who was the senior inspector for the RSPCA, effectively agreed that Nicholls was not fit to be assigned to field duties. He should not have been allowed to take control of the plaintiffs' herd of cattle and to destroy them. Accordingly, the RSPCA failed in relation to the duty of care which it owed to the plaintiffs.
614 The RSPCA pleads in its defence that Nicholls acted reasonably in the circumstances. He destroyed some cattle himself which he reasonably believed were suffering from starvation and were down. He directed that other cattle be destroyed on the advice of Dr Irvine. However, there are a number of factors which militate against this defence. Firstly, Dr Irvine was directed by Nicholls to limit his services to advice as to which of the cattle should be destroyed on the basis that they were abandoned and that there was no guarantee that they would be fed. Secondly, Dr Irvine was provided with false and misleading instructions by Nicholls, who knew that the cattle were not abandoned and that Holdsworth intended to be at Framlingham on 30 May. Thus, the advice provided by Dr Irvine to Nicholls was not "informed advice", but was based on false instructions.
615 Next, Dr Irvine said in evidence that, had he known the true facts regarding the existence and impending attendance of the owner, he would have refrained from providing the advice to Nicholls to destroy the cattle. Fourthly, the evidence of Mr Rentsch and Mr Wagstaff was that the cattle were active and were able to move around. One jumped a high fence. The overwhelming majority of the cattle did not fit the description of being abandoned, distressed or disabled. Perhaps three per cent of the total herd may have required veterinary assistance. The evidence of many of the photographs and from the video taken by Roberts shows many cattle grazing and moving freely. This accords with the evidence given by Ellison when she inspected them approximately a fortnight previously.
616 Fifthly, the expert evidence from Mr Peter Sutherland and Dr Kuseff was that, although the cattle were light and drought-affected, there was no urgency to destroy them. I might say that this evidence was based on the photographs. Finally, ss21(2) and 21(2B) of the Act provide that the RSPCA can provide food, water and veterinary treatment to animals and recover the reasonable costs of providing same from the owner. A reasonable and prudent inspector would have made diligent enquiries so as to locate the owner or persons who had the possession or custody of the cattle. The course of providing food, water and veterinary assistance could then have been adopted where necessary. Proper notices should have been given to the owners as required under the Act rather than, as Nicholls did, needlessly and recklessly destroying the cattle in disregard of the plaintiff's rights and interests.
617 It is also asserted that the RSPCA breached its duty as bailee of the plaintiffs' cattle. The RSPCA, through Nicholls, became the bailee of the plaintiffs' cattle. The bailment appears to be a voluntary or gratuitous bailment. Reference is also made to the decision of Makower, McBeath & Co Pty Ltd v Dalgety & Co Ltd [1921] VicLawRp 66; [1921] VLR 365.
618 In that case, amongst other things, McArthur J stated as follows:
"But even assuming that in this case there was no bailment, the defendant had possession and control of the plaintiff's goods in circumstances which undoubtedly, in my opinion, imposed upon him a duty of care in respect of such goods. If one person without the knowledge or consent of another person takes possession and assumes control of that other person's goods, the law imposes upon him a duty of care in respect of those goods..."
619 Bailment arises as a result of a person voluntarily taking possession of the goods of another, being the bailor. It is not dependent upon the bailor having consented to that taking of possession. The bailee is then liable for loss or damage to the goods during such possession unless the bailee shows there is no neglect or default on the part of the bailee or its servant or agent. Reference is also made to the decision in Cambridge v Anastisopoulos [2012] NSWCA 405. Meagher JA stated as follows:
"First, a bailment results from the voluntary taking of possession by a person or persons of the goods of another. That taking of possession does not require the bailor's consent...Secondly, possession may be taken by delivery to the bailee or to a servant or agent on its behalf. Thus, a servant acting in the course of his employment or an agent acting for the purpose of his principal may take possession for the employer or principal and thereby constitute it a bailee...Thirdly, a bailee with duties analogous to those of a bailee for reward, is liable if the subject matter of the bailment is damaged whilst in its possession unless it shows that the damage occurred without any neglect or default of itself or any servants to whom it delegated that duty."
620 The authorities support the proposition that, under a gratuitous bailment, the onus is then on the RSPCA as bailee to preserve the cattle and to show that all due care to preserve the cattle was taken by the RSPCA. It is not good enough for the RSPCA to say, simply, that the gates were shut and the property left as it was found.
621 The duty extends to a sub-bailee. Reference is made to the decision of Morris v CW Martin & Sons Ltd [1996] 1 QB 716, where Lord Denning R stated:
"When a principal has in his charge the goods or belongings of another in such circumstances that he is under a duty to take all reasonable precautions to protect them from theft or depredation then, if he can trust that duty to a servant or agent, he is answerable for the manner in which that servant or agent carries out his duty. If the servant or agent is careless so that they are stolen by a stranger, the master is liable. So also, if a servant or agent himself steals them or makes away with them."
This decision was also authority for the proposition that the employer has a common law duty to take reasonable care to use trustworthy servants.
622 The evidence of Nicholls is that he killed a number of the plaintiff's cattle of his own volition and subsequently engaged the services of Dr Irvine and Mr Kelly to advise him in the course of his assessing the plaintiffs' cattle of which he was now in charge. He arranged for the trucks from Tesbury to attend. The uncontested evidence of Mr Moloney was that those at Tesbury expected a large number of cattle on 29 May. This supports the contention that Nicholls had predetermined to kill a large number of the plaintiffs' cattle on that day.
623 Turning to the missing cattle, Mr Congram gave evidence that 497 animals, including four bulls, were trucked by him to Framlingham. Ellison gave evidence that approximately 50 calves were born at Framlingham. The plaintiffs gave evidence that they regularly attended Framlingham on approximately a fortnightly basis and had made an arrangement with Mr Rentsch that he would keep an eye on the cattle. Mr Rentsch and Holdsworth spoke regularly on the telephone. It is submitted that, on the balance of probabilities, no cattle had been removed from Framlingham prior to the RSPCA, through Nicholls, assuming control of the herd.
624 On the balance of probabilities, the word had got out that the plaintiffs' cattle were abandoned as a result of the statements made by Nicholls to that effect. Also, a large number was expected at Tesbury. This was likely to be an opportunity for thieves to remove cattle from Framlingham after the RSPCA had gone.
625 The photographs show quite clearly that, before the yards had been heavily trafficked by cattle milling around in them, there was green grass present. In other words, the yards had not been used for a long time prior to that date. That is one basis for saying that the cattle were unlikely to have been trucked out or otherwise removed at a time prior to the arrival of Nicholls and those with him. There is no evidence of any escape of something like 200 animals. If the animals had got through the electric fence and onto the road, that would be a notorious fact. If they did, there is then the question of where they went. There is no suggestion that there were animals wandering around on the road. It is a matter that would have been widely known. In addition, people such as the plaintiffs, Mr Rentsch and Mr Beard had been backwards and forwards in the adjacent area. If the animals had escaped on foot, this would doubtless have caused interest and alarm in the community and with passers-by.
626 There is then the evidence of Holdsworth and Nicholls as to their observations on the morning of Friday, 30 May. There had been trucks backed up to the ramp and signs that the ramp had been used. Further, photograph 41 of Exhibit H is one of a cow with a red mark on it in the yards at night, and that must be after the Tesbury trucks had left. Mr Wagstaff gave evidence that his was the last Tesbury truck to leave and it was still daylight. As he was leaving, a four wheel drive vehicle pulled into the driveway. The animal with the red paint on it as displayed in photograph 41 must still have been there. it is an animal in the yard, and not one that was released back into the paddock.
627 The evidence of Mr Higgins was that 183 animals were trucked to Westmere and that there were no bulls. There is evidence that there were 90 cows and 93 weaners in separate paddocks at Westmere with no red paint on any of them. (There seem to have been a further three cattle retrieved from the forest but walked to the property of Mr Len Clarke, where they may have remained for some time.)
628 Evidence from Tesbury indicates that no bulls arrived there. There is evidence which is unsatisfactory and uncertain that perhaps two bulls were put down. Two appear in the photographs. There is also evidence that a number of animals were marked with red paint, which meant that they were destined for destruction, but no animals with red markings on them reached Tesbury. It is submitted that a substantial number of cattle disappeared on the night of Thursday, 29 May, into the morning of Friday, 30 May. A substantial number of animals did not go to Tesbury and were not there when the plaintiffs arrived. Further, there is no evidence of escape of animals.
629 I put it to Mr Langslow that, if live cattle were removed on the night of 29 May or morning of 30 May, and if the head count taken by the Nicholls' party was correct, bearing in mind the number of animals that were ultimately retrieved by Holdsworth and Ellison, it would mean that something in the order of 200 cattle must have been in the forest. Mr Langslow said that this would be correct, but it could be in the forest or in the other paddock. He also pointed out that there seemed to be an error in the calculation of the number of cattle transported by Mr Higgins, this error being in relation to the number per load. However, it was accepted on behalf of the plaintiffs that the number ultimately taken to Westmere was 183. Mr Langslow also raised a query concerning the adequacy of the evidence that two bulls were put down. He contrasted this with the Tesbury records.
630 Ms Heck was clear in her evidence that all the animals that were shot in the yards were put on trucks and taken off to Tesbury. She then seemed uncertain in relation to the fate of the two bulls. If the Tesbury records are as accurate as Mr Rivett said they were, the total number of animals processed is 188 (as shall be discussed, an examination of the Tesbury records seems to me to produce a lower total).
631 The RSPCA is liable for the loss of the missing cattle, as it failed to ensure their security. Nicholls had changed pre-existing circumstances in which the animals were on the property and had raised a tempting target for miscreants.
632 It is submitted that the witnesses called on behalf of the plaintiffs, and the plaintiffs themselves, had far greater knowledge, skill and expertise in husbandry and assessment of the overall health and condition of cattle, and particularly these cattle, than any of the witnesses called by the RSPCA. Each plaintiff had a lifetime of experience in caring for and assessing cattle for quality and health in all climatic conditions. They were passionate and dedicated cattle people - passionate about this herd. Any contention that they would wilfully neglect or be careless about the health of these cattle should be rejected.
633 Dr Kuseff is a most experienced veterinarian who has tended to cattle in all circumstances, including severe droughts. At the time of these events, Dr Irvine was a recent graduate who had never dealt with drought cattle during his short experience. Mr Congram is an enormously experienced stock carrier, knowing how to assess cattle and carry them safely. At the time of these events, on a daily basis he was handling cattle afflicted by the appalling drought then affecting the greater part of eastern Australia. He is better placed to judge the condition of the cattle than Mr Higgins. Mr Wagstaff is a witness well-placed to express the opinion that most of the cattle should not have been shot. Messrs Sutherland, Rentsch, Moloney, Kirkland, Byrne and Keys were all better placed by reason of background and experience to give opinions as to whether or not the cattle were starving than were Ms Heck or Messrs Roberts, Nicholls and Rivett. In any event, if it had been known that the owners would attend at Framlingham on Friday, 30 May, the cattle that had made it to the yards would not have been destroyed before the arrival of the owners. Even Nicholls conceded that, and Dr Irvine certainly did.
634 In relation to witnesses not called by the defendant and whom one would expect to have been called, these include Mr Beard, the pathologist (Dr Elizabeth Dobson) and Ms Ryan. Dr Dobson was on the list of witnesses to be called by the defence. She is a specialist pathologist employed by Gribbles and was apparently going to give evidence in relation to the matters set out in the pathological reports and as to their significance.
635 The defendant is not immune from the claim in negligence or bailment arising from the conduct of Nicholls, nor immune from the claims of vicarious liability in respect of his actions. Reference is made to the decision in Regent Holdings v State of Victoria [2013] VSC 601, in which reference was made to the decision of the High Court in Pyrenees Shire Council v Day [1998] HCA 3. In Pyrenees, the High Court held that a public authority in the exercise of its statutory powers, with respect to a particular subject matter, owes a duty to take reasonable care in exercising those powers. When statutory powers are conferred, they must be exercised with reasonable care. If those who exercise them could, by taking reasonable precautions, have prevented an injury which has been occasioned and which was likely to be occasioned by their exercise, damages for negligence may be recovered.
636 In Pyrenees, there was in turn reference to the decision in Council of the Shire of Sutherland v Heyman [1985] HCA 41. Reference is made in that decision to a general dependence on an authority's performance of its function with due care. There will be a general expectation that power will be exercised and a realisation by the authority in question that there is a general reliance or dependence upon the exercise of power.
637 In Pyrenees, there is also a reference to Stovin v Wise [1996] UKHL 15; [1996] AC 923, in which it was said that a person who suffered loss because a power had not been exercised, or not properly exercised, could be entitled to compensation.
638 Turning to the present case, Nicholls was under a duty to exercise his powers pursuant to the Act with due care. Reference is made to cases involving police officers, such as Zalewski v Turcarolo [1995] VicRp 76; [1995] 2 VR 562 and Hill v Chief Constable of West Yorkshire [1999] AC 53. In the present case, as a result of the conduct of Nicholls and the RSPCA, the plaintiffs have suffered loss and damage and they are entitled to claim against the RSPCA for such loss.
639 Mr Langslow then turned to extracts from the evidence of various witnesses, many of which were in annexures attached to the written submissions. He dealt firstly with the evidence of Ms Heck. He submitted that it is apparent from her evidence at T2009 that she recorded the names of the owners, apparently noting them to be James and Heather Holdsworth, along with an address at Lake Bolac (near Westmere) and landline phone numbers on Tuesday, 27 May. She would also seemed to have recorded a Bairnsdale number.
640 On Wednesday, 28 May, she again attended at the property with Nicholls, Roberts and Dr Irvine. They did a drive around the property in order to assess the animals. They were not there as long. She stated at T2013 that, even though they could drive around and deal with each animal individually, a decision was made to muster them into the yards which had been found that day. More animals were found on the second day, along with a dam. On the following day, Thursday, 29 May, she arrived at Framlingham probably around 9.30 to 10am. Others present were Nicholls, Roberts and Dr Irvine, this being when the mustering of the cattle into the yards took place. She could not recall if people were still there when she left. She stated that the animals were moved into the crush so that Dr Irvine could assess them in terms of liability. Some animals were shot, others were released back into the paddock. The cattle had been moved quietly into the yards, with the group walking behind them. She also stated that they did not go back into the forest looking for animals. Her estimate was that approximately 200 animals went into the yard and 117 were shot. By the time that she had left, most of the slaughtered cattle had been removed. She was of the view that the cattle that were mustered did not come from the forest - see T2019.
641 Because she was standing in the yards and not near the crush, she could not hear conversations between Nicholls and Dr Irvine. However, she did say that Dr Irvine was assessing the animals in consultation with Nicholls - see T2020. While she made no judgments on the day, some animals, and particularly a bull, were in very low condition and she could see why some were being put down. She thought that there might have been two Murray Grey bulls that were put down. She also stated that Nicholls was in control of the matter and determined to stay so - see T2037.
642 When she went to lunch, which would have been approximately 12.30 to 1pm or a bit later, animals were continuing to be assessed and shot. She left for lunch during that process. She does not believe that Mr Kelly was there then. She described him as arriving mid-afternoon. There had been shooting in the crush before he got there.
643 It was put by Mr Langslow that the evidence of Ms Heck at T2044-5 concerning meat fitted in with the other evidence, and particularly that of Mr Moloney. It also fitted in with the evidence of Dr Irvine that a meat sample which went to the laboratory produced no return which justified the concept that there was starvation. Ms Heck agreed that the people who were in the best position to see what the meat looked like and whether or not it was dark were those who worked on the line.
644 Mr Langslow then turned to a considerable number of extracts from the evidence of Dr Irvine which he wished to highlight. Dr Irvine's justification for the culling of the animals was basically a husbandry decision, but this in turn was based on his mistaken understanding of the area in question and the feed available. His state of mind at the time was that this was a good husbandry decision so as to allow the balance of the stock to remain and survive for the immediate future. It was also based on the fact that he thought that they were abandoned animals and they would have continued to die and starve because there was no feed available for them - see T2197-8. It is clear that it was later that he found out that there was ownership of the cattle. As at Thursday, 29 May, his understanding from Nicholls was that he (Nicholls) had knowledge of who was potentially the owner, but that such person had refused to accept responsibility for the animals. Dr Irvine thought that no one owned them. However, he thought that the RSPCA had jurisdiction for them or ownership of them in respect of what was going on.
645 Dr Irvine was not able to say how long it would take animals to deteriorate to the condition in question. Dr Irvine had little recollection of the precise manner in which the assessment of the animals was carried out or the time that was devoted to assessing each animal. He agreed that the temperature of the animals was not taken, but could not remember whether he had laid hands on each one. His belief was that the assessment process would have taken several hours, but he could not recall with accuracy.
646 Mr Langslow submitted that this was not very helpful and not satisfactory, when it cannot be said how the assessment was done or how the judgment was made in relation to each animal. I observed that, by my very quick calculation in relation to the evidence of Mr Kelly, he must have been assessing roughly at the rate of one animal every 15 seconds. This is on the assumption that he was there for about two hours, with the first half hour taken up by his lengthy walk. Given the time pressure which he was under, he may well have been there for a shorter period. That, of course, did not apply to Dr Irvine. He was present for a considerably longer period.
647 Mr Langslow submitted that, whatever the process of assessment was, it was an unsatisfactory one, particularly given that there was to be no treatment of any animals. I would refer to the general discussion at T3406.
648 It was also apparent from the evidence of Dr Irvine that Nicholls was determined to keep ongoing oversight of what was occurring into June. Dr Irvine also stated that there were 107 animals put down in the yards, namely, 60 cows, 45 calves and 2 bulls.
649 Concerning such things as suffering and distress by animals, Dr Irvine stated that it was more about distress. Mr Langslow pointed out that no lungworms were found in the faecal samples. In any event, Dr Irvine said that the situation was more about distress than animals feeling poorly. However, in making these remarks, Dr Irvine was extrapolating the post-mortem results to all the animals at large. That is not really open, particularly given the fact that the faecal samples showed no lungworm. It was put that Dr Irvine did not demonstrate an understanding of the different types of strongyles and the like. In the absence of a pathologist who could talk about the actual worms involved and the significance of them, the evidence of Dr Irvine was misconceived. Dr Irvine said that animals can be very lean, but fit and strong - see T2300.
650 When Dr Irvine was shown the photo of the last three cows found in the forest, the animals which were walked down Framlingham Forest Road, and which are seen on pages 18 and 19 of Exhibit X, he was not prepared to effectively extrapolate from the individual cows to the herd as a whole, which was a somewhat defensive position. This is particularly so bearing in mind that Dr Irvine was prepared to extrapolate in relation to the post-mortem cows.
651 Dr Irvine again referred to the absence of an owner when talking about the treatment for animals which go down - see T2303. It is pointed out that the word "abandoned" is used in s21 of the Act. Further, he was not provided with the option of treatment, which is referred to in the Act. Dr Irvine gave evidence that animals that are on the ground and struggle to rise can be treated, and whether or not such animals then survive depends on the individual beast. However, he was not given the option of providing treatment - see T2303.
652 In answer to a question of mine, Dr Irvine had stated that he was not in a position to treat animals without someone actually authorising him so to do. In the situation prevailing, the responsible person was Nicholls. He made it clear to Dr Irvine that they were not looking at individual treatment but at an overall welfare and husbandry decision - see T2304. Dr Irvine said that his preference would be to save animals if he could and he had materials with him which could have been used in that regard.
653 Dr Irvine told Nicholls that, if guardianship and feed were to be provided, he would probably have destroyed the animals that were unable to rise or walk to the stockyards - see T2305. It follows from this that, had Nicholls told Dr Irvine that he was to meet Holdsworth on Friday, 30 May, none of the animals which reached the yards would have been destroyed on 29 May.
654 Prior to the discussion with Nicholls on 29 May, Dr Irvine had no knowledge or suspicion that there had been any suggestion by the owner that he was coming on Friday, 30 May. Nobody told him that Holdsworth and Ellison drove through the night of Thursday, 29 May, arriving at Framlingham just after 6.30am on Friday, 30 May.
655 Dr Irvine confirmed that he had never dealt with drought cattle such as those which were being seen in New South Wales at the time. When he first went to Framlingham, he had no information.
656 Mr Langslow then took me to the issue of the difference in groups of cattle in photographs 29 and 30 of Exhibit H. In relation to those in photograph 30, Dr Irvine described them as being unable to survive the immediate future without real nutritional support and healthcare. Those in photograph 29 had more condition and were likely to be those that were left standing. Dr Irvine also described those in photograph 30 as being emaciated with nothing left on them. Those in photograph 29 had significantly more body condition. Mr Langslow said that such evidence bears on some of the evidence given by Mr Kelly.
657 Dr Irvine said that, if the animals in photograph 30 were to survive, they needed basically a nutritionist, a nutrition plan, and a real course of action to try and resurrect them. Some may have gone too far already, but potentially, if everything was done correctly, survival could not be discounted. He described the condition score of those in photograph 30 as being less than two. Mr Langslow submitted that this should be balanced against the evidence of Dr Irvine concerning the difficulty of drawing conclusions and making assessments from photographs.
658 Dr Irvine had not been given any information that these were highly bred cattle of stud quality. He was not told so by Nicholls. The overall decision was that of Nicholls, he being in charge of the property.
659 In relation to the evidence of Dr Irvine concerning the stomach contents as found at post-mortem, there was uncertainty as to whether or not what was found indicated whether the nutritional needs of the animal had been met. The evidence of Ms Heck concerning glycogen and the pH score and the like was far more scientific.
660 In answer to a question of Mr Scanlon's as to whether, if there were hundreds of cattle, they could be salvaged, the reply of Dr Irvine was that theoretically they could be, but it required ownership, intensive management and good nutrition. Animals were put down as a matter of necessity in order to end suffering, or if done for a reason of husbandry or preserving other life. The statement that the mandate of veterinarians was to protect and preserve life wherever possible was almost precisely the same as what was said by Dr Kuseff. In relation to the reason of husbandry, this is in essence culling the weaker ones in order to allow the stronger ones the opportunity to survive on what was thought to be a limited area of land.
661 Dr Irvine was uncertain as to which people remained on the property when he left on 29 May. When he returned on Friday, 30 May, he did not go onto the property. There were cattle there. They were in the yard. There was also a couple of vehicles there. Dr Irvine came past more than once. He believed that all the cattle were in the yard and not in the paddocks. There is evidence that this was communicated to Nicholls. Nicholls must have known that it was likely that the people there were the owners, including Holdsworth, but he stayed away. Dr Irvine returned to the property after Thursday, 29 May, because he had given to Nicholls an undertaking that he would drive by and visually check that the animals looked alright and that there was no indication that they were under any undue stress. They were to continue to be assessed on almost a daily basis.
662 The report from the pathologist at Gribbles indicated that there was a high level of strongyles and that drenching was required. Dr Irvine said that he was absolutely dependent upon what was found by the pathologist. It was submitted by Mr Langslow that there was uncertainty concerning the evidence about a high worm count and, if the RSPCA was relying on this, the RSPCA had an obligation to demonstrate that this was a significant finding insofar as the health of the particular animals was concerned and as to whether they would have been in any distress. The pathologist had also stated that no lungworm larvae were detected in the faecal samples. This has more general application to the herd as a whole. Drenching seems to be all that was required. It was also put that a bone sample was forwarded to the pathologist, Dr Irvine having noted during the post-mortem that the bones were very fragile. No comment came back from the pathologist concerning any problem with bone density or osteopenia. Thus, there is no support for the proposition that the animal in question had a bone density problem, apart from an imprecise test performed by Dr Irvine.
663 Insofar as pneumonic signs were concerned, the end result was that the cattle required drenching. Had there been an owner accessible for these cattle, Dr Irvine would have suggested that a drench was required. That is something within a farmer's capacity to organise - see T2280.
664 Dr Irvine also stated that photographs are misleading, because the real perspective is often not conveyed. He would not make an assessment from a photograph as to whether a particular animal should be put down - see T2306. It was submitted by Mr Langslow that there had been many attempts by witnesses to make assessments from the photographs. The evidence of Dr Irvine is relevant to this.
665 In relation to the stomach content of the animals which were put down, the people best placed to speak about these are those from Tesbury. The plaintiffs introduced evidence from Messrs Kirkland, Moloney and Byrne. The RSPCA called evidence from Mr Rivett. The general proposition is that, if the animals had significant amounts of food in them, it is difficult to say that they were starving because of lack of feed.
666 Mr Kirkland is deceased. However, the transcript of his evidence at the Ballarat Magistrates' Court, including the cross-examination, has been placed in evidence. In relation to the stomach content of animals, he had seen the cattle being gutted. Part of the process is that the intestines have to be emptied of any grass. The cattle in question had grass in their stomachs. They had been eating it.
667 Mr Moloney gave evidence that he was in the position to see the entrails when they were removed. The stomachs of the cattle were reasonably full. Mr Byrne saw the animals' intestines that were removed and said that they definitely appeared to have feed in their digestive tracts. He also had a good view of the hides, and his recollection was that there was no identifying marks on them.
668 Mr Langslow then referred to further extracts from Exhibit R (the transcript of the evidence of Mr Kirkland at the Ballarat Magistrates' Court). Mr Kirkland recalled the cattle coming in. He engaged in the processing, he being in charge of 10 or 11 men on the skinning floor and working in various positions as required. Essentially, the evidence of Mr Kirkland was to the effect that the meat looked to be of good quality and was in "pretty good nick".
669 Mr Langslow then outlined a summary of Mr Moloney's evidence. I have referred to this previously. Mr Moloney gave evidence that it was obvious that the cattle should not have been shot and that the meat was good, robust meat, unlike meat of a jelly-like condition. He also noted the vegetable matter in the stomachs. He also stated that the paunch stomachs appeared full in photographs 13, 14 and 17 of Exhibit H, being three of the post-mortem photographs. Mr Moloney stated that, if an animal has grass in its stomach, "it's doing alright, it's eating". Some doubt exists as to whether the autopsied animals did go to Tesbury (I might say that the balance of the evidence would suggest that they did not).
670 Mr Langslow said that, by the time the evidence of Mr Wagstaff was included, that made four witnesses from Tesbury. Of them, Messrs Wagstaff, Kirkland and Byrne had no bias favourable to Holdsworth and, in essence, did not know him. Mr Moloney was the only Tesbury witness who knew Holdsworth. Mr Langslow agreed that Mr Moloney was probably very sympathetic towards Holdsworth - see T3450.
671 When Holdsworth and Ellison went to Tesbury on Friday, 30 May, they were obviously frantically seeking their animals. Clearly they believed that they had been badly wronged. They would have been aware of the rumours and theories that were flying around. One thing that is clear is that they showed determination and a great deal of anxiety to follow any lead that they might have had. This also shows that Holdsworth was not a person afraid to face up to difficult situations, which is not consistent with what has been said about him - namely, that he was not prepared to do that when spoken to by Nicholls on the telephone on Tuesday, 27 May.
672 In relation to the evidence of Mr Rivett, the Tesbury records represent the best evidence of the numbers that is available. Those show that the carcasses of no bulls were retrieved. Those figures reveal that 142 cows, 44 yearlings and 2 calves arrived at Tesbury. That is a total of 188 animals, including those that arrived on Wednesday, 28 May. There is no indication that the carcasses of animals previously deceased had been picked up, and the reverse is probably the truth of the matter.
673 Concerning the evidence of Mr Rivett, what he said in this Court in relation to red paint markings was quite contrary to the evidence previously given by him in the Magistrates' Court at Ballarat. His evidence in this regard ought to be rejected, as should his rather fanciful ability to be able to say what was in the stomachs of these animals. Incidentally, I pointed out to Mr Langslow the substantial difference between the estimate of carcasses given by Mr Rivett (188) and that of Dr Irvine in relation to animals put down (107). That is leaving to one side the fact that the records of Mr Rivett include no bulls, whereas the figures of Dr Irvine include two bulls.
674 With regard to the evidence of Mr Kelly, this was a man who was apparently "very, very busy", just there to assess stock, but took it upon himself to go for a 2,000 metre walk. He stated that he was there to inspect livestock with a view to putting them down. His evidence about whether or not there had been sod-seeding was unimpressive. He said that he had made no examination of the pasture on the west side of the driveway. He referred to there being only one paddock.
675 In relation to the assessment of the animals, Mr Kelly apparently said to Dr Irvine that, because he had other appointments, he would assess the back pen. He claimed that, by this stage, the front pen had already been done. He claimed that he had other appointments, but it seemed to be quite impossible for him to tell the Court what these other appointments were.
676 Mr Kelly also claimed that the bulk of the cattle that he sprayed with the red paint were falling over in front of him. At the very best, that has to be exaggerated evidence. His assertions concerning the capacity of the animals in this regard should be rejected. At that stage, I indicated to Mr Langslow that I had not been particularly impressed with the evidence of Mr Kelly. Mr Langslow's summary was that the evidence of Mr Kelly should not be relied upon in relation to significant matters.
677 Returning to the evidence of Nicholls, he is a person familiar with Courts and Court procedures, but, bearing in mind his background, he did not have the same practical experience as the majority of the other witnesses. Reference was again made to the evidence of Dr Irvine concerning husbandry decisions and the treatment of individual animals and, in particular, the views of Nicholls in this regard. At T2728, it was put to Nicholls that he had indicated that it was an overall welfare decision and that he had not authorised Dr Irvine to provide treatment for individual animals. Basically, Nicholls agreed with this. Nicholls expressed the view that giving individual treatment to individual animals was "pretty pointless". Most of these animals probably could not have been returned. A number could have been, "...but these sort of things when you're dealing with animals in the husbandry sense it's not practical to undergo that sort of treatment. That's my view anyway."
678 Subsequently, Nicholls agreed that he regarded euthanasia as being the appropriate treatment. Nicholls then stated at T2730 as follows:
"...I took the view that because I didn't have an owner who was talking responsibility (sic) to the animals, although...I knew the identity of the owner, the issue was about what action the owner was going to take about those animals and that was the problem."
679 Nicholls went on to say that he made the decision to make sure that those animals that were not viable in the short-term and were likely to go down and suffer further should be destroyed. Whatever assistance could be provided should be given to the remaining animals, thus tiding them over into the following week:
"...we're depending upon what the owner indicated he would do about the animals. We would have to make a further decision the following week, but in any event that didn't occur because he removed the animals against veterinary advice."
680 This confirms that Nicholls was adopting a culling husbandry concept and that it was all a matter of practicality for him. He was, in essence, saying that he knew who the owner was. Thus, the sticking point between the evidence of Nicholls and Holdsworth was whether or not the understanding was that further discussion be left until Friday, 30 May.
681 Mr Langslow then submitted that, at T2868-70, Nicholls agreed that, if there had been an undertaking or agreement involving Holdsworth to attend at the property on Friday, 30 May, it would have been appropriate to wait until then before taking decisive action to put down so many animals.
682 Nicholls was then taken to the evidence which he had given at the Ballarat Magistrates' Court in 2005. In essence, it was alleged that what had there been said was that the animals needed something done to them immediately and the situation could not wait until Friday, 30 May. He had said that the delay until Friday, 30 May, would not have made any difference. The response of Nicholls to this was evasive, referring to not knowing what the previous questions had been. However, he agreed that if he and Holdsworth had arranged to meet on Friday, 30 May, to discuss the matter, this would have made a difference and he would have waited until that Friday.
683 Mr Langslow then returned to the evidence of Mr Rentsch. I will not go through it again, but the thrust of what Mr Langslow had to say was that the evidence of Mr Rentsch in relation to the discussion with Nicholls on Thursday, 29 May, was not challenged.
684 Holdsworth's version of events ought to be preferred. The core of the herd was very important to him and he had made substantial efforts to maintain it. Nicholls, on the other hand, was acting as a type of police officer pursuing what he thought was some form of criminal act. He was seeking to gather evidence, whilst dealing with others on a "need to know" basis. He was gathering evidence for the purposes of a prosecution. Holdsworth could hardly be referred to as being "cagey" whilst engaging in phone calls with Nicholls for some 40 minutes on Tuesday, 29 May, particularly as he is a blunt and straightforward man. In any event, Nicholls knew who the owner was. The attempts of Nicholls to communicate with Holdsworth on Wednesday, 28 May, and Thursday, 29 May, do not represent a serious effort.
685 In conclusion, on the balance of the evidence, the plaintiffs should succeed insofar as liability is concerned. They had established that the slaughter of the animals was not the only option available. The question of a decision in that regard could and should have been put off until Friday, 30 May. It might then have needed to be put off again, so as to ascertain what the future should be. In relation to the remainder of the cattle, Nicholls told Holdsworth to get the cows off the property. However, he also alleges that they were removed contrary to veterinary advice. It is clear that the phone calls on Friday, 30 May, in fact took place.
686 The notes of Nicholls that have been admitted into evidence were of limited value. Some of them, for example those in June, had not been made on the days on which they appear to have been made. Furthermore, for example, the notes of the conversations of 27 May were very short, given the duration of those conversations.
687 I indicated to the parties that I would need to be persuaded that there was any right to a reply, save on matters of law or on issues which I had raised. Mr Scanlon agreed to confine any response to this. He then referred to the observations that I had made concerning Mr Kelly and my failure to be overly impressed by him as a witness, particularly referring to matters relating to the attempted service of the subpoena. I then repeated that, whilst I was not putting the affair of the subpoena entirely to one side, it was not paramount in my thinking when I expressed the view that I was not all that impressed with Mr Kelly as a witness.
688 In relation to the speed with which Mr Kelly may have done the job, Mr Scanlon said that it was to be remembered that the evidence of Mr Kelly was that he walked behind the cattle and that they were staggering and falling over. He is someone with an eye for cattle. His whole life has been with cattle. He should be able to assess cattle at speed and with accuracy, because that is his job.
689 In relation to an observation of mine that, had Holdsworth said that he was not the owner of the cattle, that might have brought the conversation of 27 May with Nicholls to an abrupt halt, it was submitted that that would not happen in the circumstances. Nicholls had information, including that from Ms Ryan, as to possible ownership. Therefore, in the telephone conversation, he pursued the matter, because he believed that Holdsworth was the owner. This may not appear in the notes of Nicholls because Holdsworth had said that the cattle were not owned by him but by JA Heath Inland Holdings. The conversation would have continued because Nicholls was after information, particularly given that he believed Holdsworth was the owner. The notes of Nicholls record that Holdsworth had told him that he was at Framlingham on 4 and 9 May. If Nicholls' notes are correct, Holdsworth told him there were some 5,000 acres with dams and water troughs. He has also noted that Holdsworth told him that the animals were drenched when they arrived. His notes record that Holdsworth then said that he could not remember when they were drenched, but that their welfare was not his responsibility, but the responsibility of the owner of the land. Holdsworth then went on to say that he could not remember who organised the agistment but that he would ring back in this regard.
690 Thus, the reason that the conversation was a long one was because Nicholls wanted to get information. He obtained information, but never an affirmation of ownership.
691 As stated, the matters to be determined at this stage of the case are liability and, potentially, the number of cattle which is to form the basis of an assessment of damages. Of course, if my Ruling is that the plaintiffs have failed to establish liability on the part of the RSPCA, no further determinations are required. Accordingly, I shall now deal with the issue of liability.
692 I shall commence this Ruling in relation to liability by setting out certain findings of fact. Obviously these do not include all of the facts previously set out.
(i) I accept various background matters, some of which were not contentious. Both plaintiffs have a long history of working with cattle, and particularly Murray Grey cattle. Without going into the details of their endeavours, some of which relate more to the possible issue of damages, I am satisfied that each plaintiff was enthusiastic about Murray Grey cattle and put considerable time and effort into matters concerning the partnership herd of stud cattle. It would be fair to say that they were, and are, Murray Grey enthusiasts.
(ii) A severe drought affected considerable areas of south-eastern Australia in 2001, 2002 and into 2003, and particularly the area of southern New South Wales where the partnership herd was essentially located. This necessitated the putting of key elements of the herd onto stock routes, colloquially known as the "long paddock" and this continued for a period in excess of a year. Again, both plaintiffs put considerable time and effort into this. Ultimately, the purchase of the property known as "Piney Park", near Corowa, was triggered by the need to have feed available for the animals. Thus, considerable expense was also involved in the maintenance of the herd.
(iii) Ultimately the feed available in southern New South Wales essentially ran out. Holdsworth had continued with his property at Westmere in western Victoria. Following a conversation with Mr Rentsch, who was delivering water to Holdsworth, the possibility of agisting part of the herd at Framlingham arose. I accept that the portion of the herd now being discussed represented the best stud animals and those which the partnership wished to preserve as the foundation of their enterprise. An inspection of Framlingham followed.
(iv) As at the time of the inspection, I accept that there was good feed available. I see no reason to doubt the evidence of a number of witnesses, including Mr Congram, in this regard. An agreement was reached between the partnership and the Aboriginal Trust which owned Framlingham. There was certainly an element of "being good neighbours" in this regard. The land available for the partnership cattle was all of the McKenna block, an area of pasture of approximately 300 acres, and the forest area, being some 3,000 acres. The pasture available on the McKenna block included the portion west of the driveway. On the balance of the evidence, I see no reason to doubt this. I also accept that, at least initially, the idea was that the cattle basically obtained their feed from the forest, where there were various clearings and a plentiful supply of grass. Appropriate electric fencing was put in place. Additional water troughs were purchased. The fencing was broken or interrupted in such a way as to give to the cattle access between the forest area and the McKenna block.
(v) I accept that, whilst there was longer grass available in the paddocks when the cattle first arrived, the grass had been eaten down to a considerable extent by the time of the occurrence of the relevant events. There was still some grass available, but it was very short. However, I accept that there was plentiful grass available in the forest area, even if it was less attractive to the animals. The cattle had access to it. The closest examination of the state of the grass in the forest was that carried out by Mr David Ellison. He spent a considerable amount of time in the forest, riding a motorcycle and rounding up small numbers of cattle. Overall, he described the feed in the bush as being very good. Roberts may have entered the forest area, but this seems to have been in a motor vehicle and access was restricted. I see no reason to doubt the evidence given by Mr David Ellison. It is also to be remembered that the original idea was that the animals obtained their feed in the forest.
Two additional observations could be made concerning the state of the pasture and the feed available. Firstly, no member of what could be described as the Nicholls' party seems to have spent much time in the forest. Indeed, Dr Irvine, for example, did not seem to be particularly aware that the cattle had access to it. In addition to this, no member of the group seems to have been aware that the cattle also had access to that part of the McKenna block on the western side of the driveway. Nicholls referred to other cattle being in that area, but whether he was in fact talking about the part of the McKenna block in question may be arguable. In any event, there is some force in the argument of Mr Langslow that little or no attention seems to have been paid to the forest area or to the part of the McKenna block on the western side of the driveway.
There is also the issue of whether or not some pasture improvement or renovation, whether by way of sod-seeding or otherwise, had taken place. This is also one of the mysteries of the case. On balance, I am prepared to accept that some sod-seeding or like work had been carried out. Whether this had taken effect is another matter. Overall, whilst a mystery, I do not regard this as an issue of critical importance. I accept the evidence of witnesses, such as Mr David Ellison, that the grass available was green, but short.
(vi) The partnership engaged Mr Congram to move those animals that were to go from southern New South Wales to Warrnambool. Five B-double loads of cattle were moved on 26 and 27 February 2003. There were 497 animals moved to Framlingham, this number including four bulls. Whilst the RSPCA at a later stage raised some issue about the reliability of the invoices and counting method of Mr Congram, there was a little attack actually made on him in relation to this during cross-examination. I consider Mr Congram to have been a good witness. His reliability as to the number of cattle transported was scarcely challenged during cross-examination. He has a long history of working in the transportation of livestock industry, and indeed is a carrier accredited by the RSPCA. I accept his evidence as to the number of cattle moved by his vehicles to Framlingham. I also accept that the load consisted of 271 cows, 222 calves and 4 bulls. This whole exercise of moving the herd was another indication of the effort and money which the partnership was prepared to put into its animals and their welfare.
(vii) The cattle travelled safely to Framlingham in Mr Congram's B-doubles. Regular stops and checks were conducted, but there were no problems with the cattle. This was despite the fact that it had been a very bad season because of the drought and, on other trips, a number of cattle had gone down and had to be dragged off the trucks. The partnership cattle were regarded by Mr Congram as light, but fit to travel.
(viii) Whilst it was not seen by Mr Congram, I accept that a small number of animals were injured when alighting from the vehicles, essentially because of a parking problem that had arisen. Holdsworth put these animals down. I see no reason to doubt his evidence in this regard.
(ix) Holdsworth visited Framlingham almost daily for a couple of weeks, Framlingham being less than an hour and a quarter's drive from his residence at Westmere. Thereafter, he visited on approximately a fortnightly basis, with Ellison accompanying him on some visits. The last such visit was approximately a fortnight before the events central to the dispute in this case. It was put in his closing address by Mr Scanlon that I should have some doubts as to whether such visits, and particularly the one a fortnight before the relevant events, actually occurred. I appreciate the cross-examination was lengthy indeed, but I have no recollection of either Holdsworth or Ellison being challenged in this regard. Indeed, a line of attack quite frequently pursued was that it was impossible for the animals to have deteriorated so much between the visit in mid-May and the events of 27 May and following. In any event, I have no reason to doubt that Holdsworth and Ellison visited when they said that they did. At the time of Holdsworth's last visit prior to the relevant events, the grass in the pasture was short, but there was some feed and there was grass in the forest
(x) Holdsworth had loose arrangements with Mr Rentsch and Mr Beard concerning the cattle. Mr Beard was more involved in water supply. Mr Rentsch was generally "keeping an eye on" the herd, he being a regular visitor to Framlingham because of some cattle of his and of his brother-in-law that were located at the southern end of Framlingham, an area essentially not accessible by the partnership cattle. Holdsworth had also left relevant telephone numbers with Ms Ryan, who was to ring him if there were any problems. This occurred on one occasion when there was a cow dead on the property. Holdsworth came and moved it from where it was, also calling on Ms Ryan to thank her.
(xi) I turn now to the crucial events of 27, 28 and 29 May. As a result of an anonymous complaint or complaints, Nicholls, Roberts and Ms Heck went to Framlingham on 27 May. Drs Irvine and Page attended later, after Nicholls rang Dr Irvine. I accept that, at Framlingham, there were some dead animals and that Nicholls shot a few more. The number of dead animals is difficult to pinpoint with accuracy, but approximately 11 could be identified by reference to the photographs in Exhibit H. Two animals were shot and became those upon which autopsies were performed.
(xii) I say now that I am of the view that all the animals found dead, shot by Nicholls, sent to Tesbury or ultimately recovered were partnership cattle. Whilst Holdsworth and Ellison stated that some of the cattle shown in the photographs did not appear to be theirs, and whilst there was considerable debate about ear tags, I am not satisfied that any extraneous animals were introduced. Looking at the photographs, the ear tags that can be seen seem to me to be essentially consistent with tags that were used at one time or another at Westmere or by the partnership. The evidence does not lead me to the conclusion that, on the balance of probabilities, some other cattle, whether Murray Grey or otherwise, were introduced into the herd or the area which it occupied. I am also not satisfied that, leaving to one side the issue of the ear tags, a couple of the Murray Grey cattle seen in the photographs were not part of the herd. I am simply not satisfied that other cattle, Murray Grey or otherwise, were introduced or somehow became intermingled with the partnership cattle on the relevant portion of Framlingham.
(xiii) I turn now to the conversations on the evening of 27 May. On balance, I am satisfied that Holdsworth told Nicholls that he was a part owner of the cattle. It is likely that this would have occurred in the earlier conversation, namely when Nicholls rang Holdsworth. If Holdsworth had not conveyed to Nicholls that he was at least a part-owner of the animals, the subsequent behaviour of Holdsworth makes little sense. As pointed out by Mr Langslow, if Holdsworth was denying ownership, why would he give to Nicholls contact numbers for Mr Beard and Mr Rentsch, and engage in a second telephone conversation, ringing Nicholls back, so as to impart full details of this? By so doing, he would have been directing Nicholls to the very people who could confirm that he was an owner of the animals, or at least had a considerable amount of responsibility for them. If he was simply denying ownership, why would he pass on details about the cattle and their background and the like? If he was ducking responsibility, as asserted by the RSPCA, why go into any detail at all, other than a denial of ownership? Also, given the effort and money that the partnership had put into the maintenance and preservation of the herd, it is difficult to think of any good reason why Holdsworth would deny ownership, particularly when informed by Nicholls as to what was occurring or might occur. At the time, he was at Westmere, only a little over an hour away from Framlingham and was going to be at Westmere all of the following day, going to Carrathool in the evening. I prefer the evidence of Holdsworth. However it might have been interpreted by Nicholls, I am satisfied that Holdsworth told Nicholls that the owner of the cattle was JA Heath Inland Holdings and that he, Holdsworth, was thus a part-owner of them.
(xiv) I am also satisfied that Holdsworth made an arrangement to meet with Nicholls at Framlingham on Friday, 30 May, in order to discuss the situation. That is Holdsworth's evidence. I believe it. If it were not so, why would Holdsworth have not taken the comparatively short drive from Westmere to Framlingham on the following day? Why would he drive all the way to southern New South Wales, keep an appointment, and then, having found out that his cattle were being shot, drive back through the night, arriving at Framlingham at approximately 6.30am? This also does not make sense.
(xv) Further, I am satisfied that Holdsworth, having made the arrangement referred to above, perceived no urgency in the situation pending that meeting. That urgency commenced on the evening of Thursday, 29 May, when he received the news that his cattle were being shot. As stated, this lack of urgency fits in with and makes sense of Holdsworth's behaviour after the telephone conversations on 27 May. I would also refer to the following. Mr Rentsch, another reliable witness, gave evidence that he told Nicholls on the morning of Thursday, 29 May, that Holdsworth had said to him that he had arranged to meet Nicholls at Framlingham on Friday, 30 May. In other words, unless Holdsworth was engaging in a somewhat elaborate plan to cover his tracks, he had expressed to Mr Rentsch his honest belief that he had a meeting with Nicholls at Framlingham on Friday, 30 May. It seems a peculiar falsehood to have told Mr Rentsch, unless there was some real and somewhat surprising misunderstanding. The other aspect of the evidence of Mr Rentsch is as follows. Even if there had been some earlier genuine misunderstanding on the part of Nicholls, as at the time of Mr Rentsch telling Nicholls on the morning of Thursday, 29 May, that Holdsworth was of the belief that there was an arrangement for him to meet Nicholls on Friday, 30 May, Nicholls was on notice of such belief on the part of Holdsworth. He was also aware of the possibility, if not probability, that Holdsworth would be coming to meet him on the following day. I might add that the evidence of Mr Rentsch in this regard was not challenged. What can be said is that Nicholls either knew, or ought to have known, that he was to have a meeting with Holdsworth at Framlingham on 30 May. Even if there had been an earlier misunderstanding, he was alerted to Holdsworth's belief by Mr Rentsch.
(xvi) It is also apparent that, at least by the time that the shooting of animals started on Thursday, 30 May, Nicholls was clear as to the ownership of the cattle. When cross-examined about dealing with the situation on a "whole herd" basis on 29 May, Nicholls stated, "I knew the identity of the owner - the issue was about what action the owner was going to take about these animals, and that was the problem". Indeed, on several occasions Nicholls indicated that the problem was not so much that he did not know the identity of the owner, but rather the question of whether there was an owner assuming responsibility for the animals. There is a subtle, but distinct, difference between the two propositions. It may be that Nicholls thought it necessary to organise a business name search of JA Heath Inland Holdings so as to be certain of the situation. Even if that be so, the evidence is quite clear that the result of that search was known by 9.20am on 29 May at the latest. I would refer to the evidence of Roberts. It needs to be remembered that Mr Kelly, who participated in the assessment of which animals were to survive and which were to be put down, did not arrive at Framlingham until 2pm. Further, Mr Wagstaff, whom I regard as a reliable witness, gave evidence that, "We were given the name on the day, like, we were told whose cattle they were". He also indicated that he would not have participated in the shooting of cattle without being told that the owners were aware of the situation. In summary, I am satisfied that Nicholls was aware of the names of the owner or owners of the cattle when he commenced the process of having them put down. At the very least, he was aware that Holdsworth was an owner.
(xvii) It is not easy to ascertain exactly when the process of assessing and putting down the cattle on 29 May commenced. Apart from any cattle that had been put down during the mustering, the impression given by the evidence of Nicholls is that the assessment of the cattle was carried out by Dr Irvine and Mr Kelly. The ones that were to be put down were driven into the race and destroyed by Tesbury workers. One thing that Mr Kelly was certain about was that he arrived at Framlingham at 2pm.
Ms Heck gave evidence that she left and went to Purnim for lunch at 12.30-1pm, probably a bit later, but between 12 noon and 2pm. When she went for lunch, Mr Kelly had not arrived. There had been shooting in the race (or crush) before he arrived. The process of bringing the animals into the crush, assessing and shooting them was continuing at the time that Ms Heck went to lunch. If that be so, it is apparent that some of the animals in the yards had been put into the crush and slaughtered before Mr Kelly arrived to participate in the assessing process. Of course, when he did arrive, he immediately went for a substantial walk. It is also to be remembered that Mr Kelly departed again to go to another appointment on this "very, very busy day" before the slaughtering process was finished, having placed red paint on some of the animals. My overall impression is that this whole assessing and slaughtering process was not carried out in a particularly comprehensive or effective way.
(xviii) The belief that I have formed that this was so is reinforced by the evidence of Dr Irvine. It is clear that the instructions that he was given by Nicholls were to the effect that individual animals were not to be assessed on the basis that they might be able to be saved with treatment and feed. There seems to me to be little argument but that Dr Irvine was left totally uninformed and "in the dark" concerning the ownership situation. At all times, he had the belief that these were abandoned cattle. It was after the killing had been completed that he was told by Nicholls that in fact there was an owner who had said that he was unable to be there before Friday. Dr Irvine's evidence was that, if he known on the Wednesday night or the Thursday morning that there was an owner who was unable to be there before Friday, 30 May, "It would have absolutely made a difference to the course of action". The process in which he took part was, effectively on instructions, one of culling out the weaker animals on the basis that they were not fit to travel and without having any regard to the treatment that may have been afforded to individual animals. I make no criticism of Dr Irvine. The view that he had formed, and he had sought advice about the matter, was that the RSPCA, via Nicholls, was in charge. He was not given other vital information. His evidence confirms my view that the assessing and slaughtering process was carried out in a hasty and unsatisfactory way.
(xix) I turn now to the condition of the cattle, and in particular those that were mustered, assessed and, in some cases, slaughtered. These were drought cattle. The weight of evidence satisfies me that they were lean and light. I am of the opinion that Holdsworth and Ellison, and particularly Ellison, have spoken of the condition of the cattle in overly glowing terms. The cattle were still lean and light as at 27-29 May. The lightness of some of the cows may well have been exaggerated because they had calves at foot.
(xx) However, the next, and very important, question is whether the animals that were slaughtered should have been put down in the circumstances that were prevailing. In my opinion, they should not have been slaughtered. Apart from the fact that an inadequate and somewhat rushed assessing process had taken place (Mr Kelly seems to have participated for a period of no more than 90 minutes, with the number of cows to be assessed well in excess of 200), I am not satisfied that, generically speaking, the condition of the animals warranted their immediate slaughter. As stated, Dr Irvine was not given the relevant ownership information until after the slaughter had taken place and would have adopted a different course of action had he possessed that information.
Mr Wagstaff, whom I regard as being an impressive and independent witness, is a person who has moved on in the cattle industry from working on dairy farms and at Tesbury to being the regional manager for an artificial insemination company. When he found out that he was going to take part in the shooting of the cattle in the yards, he immediately questioned his superior, Mr Wakeling. His reason was that he did not think that they needed to be shot. As he said, "They were hungry, they were drought affected, but so were 30,000 other cattle round (sic) the district". He also mentioned the surprise of the workers back at Tesbury concerning the condition of the animals. In cross-examination, when shown the cow portrayed in photograph 36 of Exhibit H, it being one shown by Mr Scanlon to a number of witnesses as an example of a cow in very poor condition, Mr Wagstaff stated that he had worked as a stock agent and had sold cattle in that condition. He said that it was in poor condition, but that he had seen a lot worse. If he had had to make a decision as to whether that particular animal should be put down, he would have said "no". He repeated that he did not think that the cows that they were shooting should have been shot.
Mr Rentsch, another impressive witness, stated that when the partnership cattle arrived, they were struggling but, by the time Nicholls intervened, the cattle had started to improve. I accept that, when he had discussions with Nicholls at Framlingham on 29 May, Nicholls told Mr Rentsch that he was going to destroy the cattle that were starving. He had a gun with him at the time. I accept that Mr Rentsch enquired as to what was wrong with the cows and as to why they were going to be put down. When told by Nicholls that they were just too weak and starving, Mr Rentsch stated that they were in much better condition than the ones he had been carting hay to "up north". He pointed out to Nicholls that cattle were running away from a vehicle being used to round them up, this not being consistent with the type of condition that Nicholls was describing.
I accept the evidence of Dr Irvine, Mr Wagstaff and Mr Rentsch, all of whom saw the cattle live and at the relevant time, with Mr Rentsch having the additional advantage of having seen them upon their arrival and subsequently. Their opinions are not based upon what was seen in photographs or from looking at carcasses. Both Roberts and Ms Heck described the cattle as being in a very poor condition, but Ms Heck also stated that she was not really in a position to see the assessment procedure. She also observed that it was her first case. The recollection of Roberts was, as earlier stated, far from clear. He thought that the cattle that were destroyed were in very poor condition and were destroyed on humane grounds. It is also to be remembered that, at that time, Roberts was a probationary inspector who, for a couple of weeks, was being mentored in his role by Nicholls.
The critical question with which I am dealing is whether the cattle should have been destroyed immediately, particularly given the circumstances. Nicholls himself agreed that if he had been satisfied that an owner was coming on Friday, 30 May, and was going to take responsibility for the animals, including the provision of feed, he would have done only piecemeal inspections on Wednesday, 28 May, and Thursday, 29 May, and destroyed animals that required it at the direction of the veterinarian. In other words, even in the opinion of Nicholls, there were at least some animals that did not require immediate destruction on 29 May and would not have been so destroyed if he was satisfied that an owner who would take responsibility was arriving on 30 May (although he agreed that he had said at the Ballarat Magistrates' Court that the situation could not wait until Friday, 30 May). Even leaving to one side the telephone discussions of 27 May, given that Nicholls had been alerted by Mr Rentsch to the fact that Holdsworth had stated that he was arriving on 30 May, and given that Nicholls by this time knew that Holdsworth and Ellison were the owners, it seems to me that, however the situation is viewed, the proper and responsible thing to have done would have been to wait one more day. In my opinion, the condition of the cattle that had been mustered and assessed on 29 May was basically not such that they could not have survived another day. Issues such as drenching, nutrition, veterinary intervention and the like could then have been discussed. I also fail to see why Nicholls was apparently so concerned that the situation had to be finalised prior to the approaching weekend.
(xxi) In relation to the haste and manner in which Nicholls carried out this operation, Holdsworth has claimed that he was told by Nicholls that, if he did not remove the remainder of the cows from Framlingham by Tuesday, 3 June, they would be shot. Nicholls was clear in his evidence that the advice of Dr Irvine was that the animals were too weak to travel. He was of the view that the animals either had to be disposed of on the property or fed until they were fit to travel. Essentially he said that this was on the basis of veterinary advice.
There is a conflict of evidence between that of Nicholls and that of Dr Irvine as to Dr Irvine's advice concerning the capacity of any animals to be transported from Framlingham. Nicholls gave evidence that the cattle were not fit to travel and that had been Dr Irvine's advice. Accordingly, he described the removal of the remaining cattle from the premises as being contrary to Dr Irvine's opinion as to their fitness for travel. There seem to me to be a couple of problems with this proposition.
Firstly, as I understand it, the evidence of Mr Kelly is that the whole basis of assessment of the cattle was to see whether or not they were fit for transport. If a cow was not fit for transport, it was shot. The others survived. This does not fit particularly well with the concept that none of the cattle were fit to be transported. Secondly, Dr Irvine also gave evidence that the cows that had not been put down were capable of being transported. Indeed, Dr Irvine said that there were two aspects of why he was asked to be present, the first being to assess whether the animals were in any way fit for transport off the property. Of course, the fact is that the animals not put down were in fact so transported, and with minimal problems involving, at the most, two animals. The evidence of Dr Irvine does not fit particularly well with that of Nicholls in relation to his assertion that, on veterinary advice, no animals could be removed from Framlingham. The veterinary advice in relation to the animals that were not put down seems to be exactly to the contrary. In such circumstances, I prefer the evidence of Dr Irvine. Of course, if Holdsworth is correct in his evidence that Nicholls had told him to get the remaining cattle off the property by the following Tuesday (3 June) or he would shoot them, this also does not sit particularly well with the assertion that the cattle were so removed against veterinary advice and in a situation where they were not fit to travel. In the circumstances, I prefer the evidence of Holdsworth in this regard. I would also point out that Nicholls gave evidence that "We were coming back on the Tuesday and then, if there was still no resolution, we were probably going to destroy the rest of them".
(xxii) I see no reason to doubt the evidence of Holdsworth to the effect that he rang Nicholls at approximately 5pm on Thursday, 29 May. I accept that he had received an earlier communication from Mr Rentsch to the effect that Nicholls and his party were rounding up his cattle and were going to shoot them. He requested that Mr Rentsch ask Nicholls to ring him. It may well be that Nicholls attempted to do this, but no contact was made. At 12.20pm, Holdsworth again rang Mr Rentsch to check on progress. By this time, Mr Rentsch had returned to Framlingham and passed on the message to Nicholls. There was no communication during that afternoon, during which Holdsworth had a medical appointment and another with a bank manager. At approximately 5pm, Holdsworth rang Nicholls, when Nicholls informed him that he had shot 117 cows. I accept that Holdsworth became reasonably agitated as a result of this. However, I accept that his recollection is correct in relation to Nicholls saying that the remainder of the herd had to be moved and that they might otherwise be shot. Holdsworth claims that he again referred to the meeting which had been scheduled for Friday, 30 May, and accused Nicholls of not being a man of his word. Whilst this may be a matter of conflicting evidence, I accept that Holdsworth said this and that it was his genuine belief at the time. It is to be remembered that Mr Rentsch gave evidence that, earlier on that same day, he had mentioned to Nicholls that Holdsworth was coming for a meeting on Friday, 30 May, and that is evidence which I accept.
(xxiii) Holdsworth and Ellison drove through the night from Carrathool to Framlingham, arriving in the early hours of the morning. They found some live cattle, but no dead cattle. I accept that the cattle yards were in a mess, but perhaps that is hardly surprising.
Both Holdsworth and Ellison gave evidence concerning the apparent indications that vehicles had recently been in the vicinity of the ramp and in relation to the condition of it. I am not persuaded by this. That the general area of the race and the yards should have been boggy and chopped up is not surprising, given that in excess of 200 cattle had been processed through the area. I am not persuaded by the evidence in relation to an alleged use of the ramp by cattle thieves or others.
What could be described as the alleged principal photograph indicating tyre marks of trucks in the vicinity of the elevated or off-loading end of the ramp was not actually put in evidence. The photographs that were put in evidence do not persuade me of there having been recent and intensive use of the ramp such that might have been evident if a large number of cattle had been moved. Similarly, I am not persuaded by arguments that photographs of the ramp, with a mat that might or might not be discerned, take matters further. Certainly, as shall be discussed, a considerable number of cattle effectively disappeared. It is one of the mysteries of this case. The numbers simply do not tally. Perhaps they were removed by thieves who drove them up the ramp and into trucks. However, to my mind, there is simply no evidence of this. The photographs that are in evidence do not take matters far. If such a theory is to be substantiated, in my opinion, the photographic evidence does not succeed in doing this.
(xxiv) On balance, I prefer the evidence of Messrs Moloney, Byrne and Kirkland to that of Mr Rivett in relation to the carcasses. I am allowing for the fact that there may have been some exaggeration on the part of Mr Moloney as to exactly how good the meat was, but it seems to me that these witnesses, working on the line, were in a better position than was Mr Rivett. The late Mr Kirkland, for example, was the supervisor and leading hand of the skinning floor. Mr Byrne was foreman on the skinning floor. I appreciate that Mr Kirkland was not cross-examined as part of this case, although he had been at the Ballarat Magistrates' Court. Whilst I make an allowance for this, it does not mean that his evidence is of no value. He described the cattle as being in "pretty good nick", although they might have been a little skinny, not an unusual condition given the drought. He had questioned why they had been brought in. Mr Byrne described the carcasses as being "pretty good". Whilst this may have been an optimistic description, it is to be remembered that, apart from the fact that Mr Byrne became foreman, he did not know Holdsworth and knew nothing of the Ballarat prosecution. Mr Byrne also described the cattle as being "alright", not the best that he had seen but far from the worst. It is also to be remembered that a considerable doubt arose about the reliability of the evidence of Mr Rivett. The almost complete about face which he did concerning the red paint marks on the hides was not overly reassuring. My conclusion is that the evidence of the meat workers, including that of Mr Wagstaff, reinforces my opinion that the cattle were not in such a parlous condition that they required immediate slaughtering on 29 May.
(xxv) On Friday, 30 May, Holdsworth and Ellison arrived at Framlingham at approximately 6.20am, having driven through the night from New South Wales. This also seems to me to be a reasonably persuasive indication of the concern which they had for their herd. Having examined the situation, they proceeded to the Warrnambool Police Station and subsequently to Tesbury. I shall not dwell on these events or the considerable number of theories and suspicions that were flying around.
Perhaps one of the few things that is noteworthy about the events of 30 May is that Nicholls essentially asserts that he had no contact with Holdsworth on the day. He was aware that Holdsworth was alleging that there were some missing cattle, but unaware that Holdsworth was in the Warrnambool area. On the way back to Geelong, he had gone past Framlingham. He did not believe that he had two telephone conversations with Holdsworth. I prefer the evidence of Holdsworth that he received two telephone calls from Nicholls, and in the circumstances described. If Nicholls was of the view that the remaining cattle should not be moved and had asked Dr Irvine to "keep an eye on them", it seems a little strange that he would make no further contact with Holdsworth on 30 May. Following his conversation with Mr Rentsch and telephone conversation with Holdsworth on 29 May, Nicholls might well have expected Holdsworth to be at Framlingham on 30 May.
I would add that Holdsworth's description of the circumstances in which the telephone calls were received from Nicholls and their contents seems to me to have the ring of truth about it and I accept his evidence and that of Ellison in this regard.
(xxvi) It is apparent that subsequently Nicholls and Roberts both attended at Westmere. I accept that they did this without contacting Holdsworth in advance or on the day. They did not go to the homestead on the property. Subsequently, Nicholls organised for Mr Keys, at that time an Animal Health Officer, to also visit Westmere, that request being made on 6 June. Mr Keys initially said that he did not believe that he had inspected cattle that had come from Framlingham. However, as I have earlier stated, he was a little uncertain concerning this. On balance, I prefer the evidence of Holdsworth that the cattle from Framlingham were on the property at Westmere. He and Mr Keys inspected them all. The inspection by Mr Keys was one without notice. He found all the animals to be in a satisfactory condition and was of the view that no further action need be taken. Even though some were down to a score 1 condition, none of the cattle were a cause for concern.
(xxvii) Nicholls made an appointment to see Holdsworth at the Warrnambool Police Station on 17 June 2003, for the purposes of conducting a record of interview. The arrangement had been made a couple of weeks earlier. Holdsworth attended at the police station, where he waited all day for Nicholls, who did not appear. Nicholls' explanation was that Holdsworth did not contact him to confirm the appointment or arrange a specific time. He claimed that he had left messages for Holdsworth, but was uncertain as to whether he had left them with other, and if so which, people. As earlier stated, I found the evidence of Nicholls in relation to this to be somewhat unsatisfactory and unconvincing.
(xxviii) The other somewhat unusual feature of the whole affair would seem to be that at no stage, at least in May and June of 2003, did Nicholls ever meet Holdsworth "face-to-face". This is despite the fact that at times, such as on Friday, 30 May, they may well have been quite close to each other. On other occasions, such as Wednesday, 28 May, Holdsworth was at Westmere whilst Nicholls was at Framlingham, only a little over an hour away. When Nicholls and Roberts went to the Westmere property, they neither contacted Holdsworth nor visited him at his homestead. Finally, Nicholls told Holdsworth to be at the Warrnambool Police Station on 17 June, but then did not appear himself. Given that this was a substantial operation involving the putting down of well over a hundred Murray Grey cattle, the fact that there was never a face-to-face discussion between Nicholls and Holdsworth is a decidedly odd feature.
(xxix) Another feature, which was agreed by Nicholls to be unusual, was that he issued a "Notice to Comply" document to Holdsworth which appears to have been drafted 21 days after it had been organised for Mr Keys to go and conduct an inspection and three weeks after Nicholls had last seen the animals. Why this was done in this fashion remains another mystery associated with this case.
(xxx) I need make no other findings of fact. I do not intend to comment upon any excitements or conflicts that occurred at the Ballarat Magistrates' Court. The above findings form the foundation of the rulings in relation to law to which I shall turn shortly.
693 Each side made representations in relation to missing witnesses and the inferences which I should then draw in accordance with what is said in cases such as Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, O'Donnell v Reichard [1975] VicRp 89; [1975] VR 916 and Earle v Castlemaine & District Hospital [1974] VicRp 86; [1974] VR 722. Reference was made on behalf of the RSPCA to the failure of the plaintiffs to call Mr Beard. The plaintiffs referred to the absence of Ms Ryan and the pathologist, Dr Dobson. Whilst I shall draw the required inferences, it does not seem to me that this will take the matter a great deal further.
694 As I mentioned during the conduct of the case, Mr Beard is a witness who might have been called by either side. The same could be said to some extent in relation of Ms Ryan, although I perhaps would have considered it to be more likely that the RSPCA would have called her. Dr Dobson was on the list of potential witnesses for the RSPCA, and again it might have been expected that she would be a witness for that party. At least portions of her findings were elicited through Dr Irvine.
695 In summary, I am not convinced that the drawing of the required inferences has any great effect upon the findings of fact that I have made or upon the outcome of the case.
696 Firstly, I find that the RSPCA owed a duty of care to the plaintiffs. There is no real argument but that the RSPCA, pursuant to its powers under the Act, entered the property at Framlingham and took control of the herd belonging to the plaintiffs. I accept that an authority such as the RSPCA, in the exercise of its statutory powers, owes a duty to take reasonable care. I would refer to the decision in Pyrenees. Nicholls was a servant or agent of the RSPCA, acting in the course of his employment with it. That has been admitted in the pleadings.
697 The attempt by Mr Scanlon at the 59th minute of the 11th hour to amend the defence so as to plead that the RSPCA was not vicariously liable for the actions of Nicholls was not allowed, this never having been pleaded or opened. I find that the RSPCA was vicariously liable for Nicholls' actions. Indeed, as a matter of interest, Mr Apostolidis, the chief inspector at the time, thoroughly approved of them.
698 In short, I am satisfied that the RSPCA owed a duty of care to the plaintiffs and that such duty was to take reasonable care generally in relation to the property of the plaintiffs and, particularly, when exercising the powers vested in it by the Act. Via Nicholls, it had intervened and taken control of and interfered with the property of the plaintiffs.
699 By putting down animals that did not need to be put down and depriving the owners, at least one of whom was known to be arriving on the following day, of the opportunity of feeding, caring for and saving the animals, the RSPCA acted negligently. It breached the duty of care which it owed to the plaintiffs. Nicholls acted hastily and negligently. For the moment, I leave to one side the issue of whether the RSPCA was also negligent by reason of employing Nicholls in the position of an inspector, failing to supervise him adequately or at all, and the like.
700 I cannot see how any vicarious liability in respect of the loss suffered by the plaintiffs could occur prior to 27 May 2003. There was no negligence on the part of Nicholls before that date. There had been no contact with the plaintiffs or with their property. Whilst the argument concerning the supervision of Nicholls to which I have just referred could, potentially, involve negligence on the part of the RSPCA in relation to events that occurred or knowledge that was possessed prior to 27 May 2003, the same cannot be said in relation to arguments based upon vicarious liability.
701 I find that the RSPCA, via Nicholls, was the gratuitous bailee of the herd. There is no suggestion of it being a bailee for reward. The bailment would have commenced when Nicholls took control of the herd on 27 May. As with the situation in relation to vicarious liability for negligence, I cannot see how there could be any breach of duty as a bailee prior to that date.
702 Mr Langslow directed my attention to what was said by McArthur J in Makawer, McBeath & Co Pty Ltd v Dalgety [1921] VicLawRp 66; [1921] VLR 365 as follows:
"If one person without either the knowledge or consent of another person takes possession and assumes control of another person's goods, the law imposes upon him a duty of care in respect of those goods."
703 It is also clear from the decision in Makawer and the cases referred to therein that a bailee has the onus of proving that the goods in question were lost or destroyed without fault on the part of the bailee. That is so whether the bailment be gratuitous or for reward - see Port Sweetnam Authority v TW Wu & Co [1979] AC 580. I would also refer to the brief observation in Cross on Evidence, Australian Edition, at paragraph 7075 to the effect that this is settled law. Further, I would refer to what was recently said by the Court of Appeal in Rolfe v Investec Bank (Australia) Ltd [2014] VSCA 38 as follows:
"Despite some divergence among Australian authorities as to which party bears the onus of proving negligence in relation to a gratuitous bailment, we think the better view to be, as it is in England, that the onus is on the bailee to show that the goods have been lost without the negligence on the bailee's part."
704 It follows from the finding that I have made above in relation to the existence of negligence that, in the present case, the cattle that were wrongfully put down were "lost" by reason of the negligence on the part of the RSPCA as bailee. Subsequently, I shall turn to the number of cattle that were so put down.
705 However, the next issue concerns the missing cattle, another of the mysteries in this case. No matter how the situation is viewed, there is a considerable number of missing cattle. In broad terms, the number of animals delivered to Framlingham is known. The number that were put down or died can be estimated within a reasonably narrow range. The number ultimately retrieved is known. There is a substantial shortfall. It is certainly strongly arguable that the RSPCA bears the burden of proving that there was no negligence on its part in relation to cattle that cannot be accounted for during the period that it was a bailee.
706 However, this seems to me to raise an immediate evidentiary problem for the plaintiffs, and it is one that I alluded to more than once during the conduct of the case. I do not see how the bailment could have commenced prior to the RSPCA entering the property at Framlingham and taking control of the herd on Tuesday, 27 May. Just as it seems to me to be legally impossible for negligence to be established on the part of the RSPCA prior to that date, so it seems to me to be also impossible to establish a bailment prior to it. Accordingly it seems to me to be important, if not vital, for the plaintiffs to establish what it was that they unknowingly bailed to the RSPCA on 27 May. There are then two approaches that may be taken, although, as shall be discussed, the outcome is probably much the same.
707 What was bailed to the RSPCA could be the number of cows that were on the Framlingham property when it entered upon it and, arguably, took control of it. The alternative approach could be to ascertain the number of cows of which it took control. In other words, when Nicholls and his party entered the property and commenced operations, was the RSPCA, via Nicholls, the bailee of all the cattle on the property, remembering that there were 3,000 acres of forest, or only of the cattle that were put down around the property and those that were mustered and assessed?
708 For the moment, let us assume that the former is the situation, given that Nicholls and his party entered the property, even if there seems to be some considerable doubt as to whether they were aware that the paddocks on the western side of the driveway formed part of the acreage open to the partnership herd. At least some driving around the forest area was done, and Roberts made some entry into it, even if large tracts of it were not explored. Thus, let us assume that there was bailment of all the cattle that were on the property as at 27 May 2003.
709 The question that still remains is how many animals were there as at that day? Mr Congram delivered 497, but that was on 26 and 27 February 2003, three months earlier. Holdsworth visited Framlingham virtually continuously for a fortnight. He then visited on a comparatively regular basis thereafter, that being at least once a fortnight and, at times, possibly weekly. Ellison had also visited on occasions. It would seem that Holdsworth's last visit to Framlingham prior to the arrival of Nicholls was on 14 May. That seems to have been at about the time of Ellison's last visit and when she noticed some 50 newborn calves, bouncing around. I appreciate that Mr Rentsch and Mr Beard were also around the place, with Mr Rentsch in particular generally "keeping an eye" on the cattle. Of course, there is no suggestion that he was there all the time, and his "keeping an eye" on them seems to have been somewhat incidental to his doing the same thing in relation to some cattle of his own and to the herd of his brother-in-law.
710 I can find no evidence that any head count, specific or approximate, was carried out between the arrival of the herd in February and the intervention by Nicholls on 27 May. The size of the herd would have been decreased by approximately half a dozen or more animals that Holdsworth put down after the difficulties with unloading and by one that he subsequently shot. It would also have been decreased by the approximate six or eight dead cows that were found by Mr Rentsch in March, unless these were the same ones that were put down by Holdsworth. There were also the animals found dead by Nicholls and Roberts when they arrived on 25 May. However, the size of the herd would have been bolstered by the arrival of the calves, estimated by Ellison to be 50 in number, although she was prone to some exaggeration. It is possible to work out an approximate number of live cattle that ought to have been at Framlingham as at 25 May.
711 Let us assume for the moment that the deaths and births almost balance and say that the number of animals that ought to have been there was 500. However, that is not to say that 500 animals were still there on 27 May. Apart from the fact that no specific head count was carried out between 27 February and 27 May, in the voluminous evidence I cannot find even a general statement by Holdsworth, Ellison or Mr Rentsch that roughly the same number of cattle that should have been there appeared to be there during that period.
712 Ultimately, 183 animals returned to Westmere, with a further three being left behind on the property of Mr Len Clarke. According to the Tesbury records, 139 carcasses came in on 28 and 29 May. Incidentally, only three of these seem to have been calves. Assuming that those carcasses included two bulls, even if they are not recorded as such, this means that a total of 322 animals can be accounted for and I accept the evidence of Holdsworth and Mr David Ellison that no other animals remained at Framlingham. If all of this be so, from our figure of the number that ought to have been on the property, there is a shortfall of some 178.
713 Nicholls and those assisting him have various estimates of the number of cattle that were mustered in the yards. Ms Heck believed that some 200 were brought in, but the party had not looked in the forest. She believed that approximately 117 were shot. Roberts thought that the total number was either 260 or 264. He thought that approximately 100 had been shot. These figures do not take the basic problem much further, even allowing for the 19 carcasses that were taken to Tesbury on 28 May. There is still a shortfall. The bottom line is that, however it is looked at, there is no accounting for something in the order of 170 cattle.
714 In my opinion, there is simply no persuasive evidence as to how and when those cattle disappeared. As stated, there is no evidence of any head count between late February and late May of 2003. Even if there was evidence, which there is not, of the number of cattle at Framlingham as at the time of the last visit of Holdsworth and Ellison, this being apparently between 11 and 14 days prior to the intervention by Nicholls, the fact remains that the cattle could have gone missing during that period.
715 I appreciate the arguments advanced by Mr Langslow to the effect that, had such a number of cattle escaped, this would have been notorious. One might expect that neighbours, road users and others would be well-aware of it. It may well be that the animals were stolen. The question remains, when? If they were stolen, given the absence of anything resembling even approximate head counts, that could have occurred at any time between, say, a fortnight after their arrival (Holdsworth attending regularly during that period) and the intervention by Nicholls. Any theft could have occurred during the approximate fortnight between the last visit of Holdsworth and Ellison and the intervention by Nicholls. Of course, any theft could also have occurred in the short period between the intervention by Nicholls and the arrival of Holdsworth and Ellison. To my mind, there is simply no evidence that makes one of these scenarios more probable than the others.
716 Mr Langslow advanced arguments to the effect that, on the balance of probabilities, no cattle had been removed from Framlingham prior to Nicholls assuming control of the herd. However, I do not find these arguments persuasive. One of them was that the photographs showed that, before the yards had been heavily trafficked by cattle moving around in them, there had been green grass present. This allegedly showed that the yards had not been used for a considerable period prior to the herd being placed in there. I do not accept this. The fact that green grass is shown around the edge of the yards does not take matters further. Photographs show the green grass around the edges, with the herd in the yards, but congregating largely in the centre. The area in the centre of the yard photographed may indeed be chopped up and boggy, but that is where the cows have gathered. Cows may have gathered similarly in the preceding days, weeks or months. Whilst quite an ingenious argument, it is to me several steps too far to say that this represents some evidence that it was a lengthy period prior to the day in question that the yards were last used.
717 I am similarly not persuaded by evidence allegedly demonstrating that trucks had backed up to the ramp in the day or days before Holdsworth and Ellison inspected the area on 30 May. Frankly, I found Ellison's evidence concerning what she had seen and the photographs allegedly taken by her on 30 May to be confusing. Her evidence was of seeing tyre tracks, some of which were abnormal and from "very good sized trucks", with a lot of truck marks to the ramp. There are also some photographs taken on the following weekend. Again, I was somewhat confused by her evidence in relation to those photographs. What is clear from the photographs is that there are a lot of tyre tracks and that the ground is chopped up somewhat. Of course, on both Wednesday 28 and particularly on Thursday 29, trucks were coming and going. The Tesbury trucks collected five loads over the two days. There are various theories about a mat being put down on the ramp and subsequently removed, thus explaining the clean condition that it was in on the morning of 30 May. Of course, another possible explanation is that the ramp was simply not used at any time, as the cattle were processed through the crush and either shot there or released into a paddock. In the photographs, the ramp would appear to have been blocked off, which was logical if the cattle were to be effectively imprisoned in the crush, which leads to the ramp. There was also a theory that, in photograph 36 of Exhibit H, some sort of mat can be seen on the ramp. Apart from the fact that it is very difficult to detect whether what is seen is a mat or simply the concrete of the ramp, it scarcely makes sense that prospective cow thieves or conspirators would place a mat on the ramp for all to see, particularly when photographs were being taken. I might add that one of the photographs referred to by Ellison did not seem to be able to be located.
718 The other argument of Mr Langslow, based upon the proposition that word would have been out that there was some abandoned cattle in the yards and miscreants would have acted accordingly, is entirely speculative. Whenever it occurred, the movement of in excess of 170 animals would have been a large undertaking. If it was done at night, it is hard to see how it would not have involved trucks, headlights and the like. The fact that photograph 41 of Exhibit H shows a cow with a red mark on its back apparently in a yard and apparently in the dark or semi-dark takes matters no further. There was no challenge to the proposition that this was one of the photographs taken by Nicholls. Whether it was in fact taken in the dark is not clear. I am not sure exactly what any argument based upon this photograph is intended to establish. Further, according to witnesses, such as Mr Moloney, the rumour that was around, was that the cattle belonged to Mr Geoff Clark and not that they were abandoned.
719 Holdsworth and Ellison gave evidence that there were tyre marks from trucks in the vicinity of the ramp. Even if that is accepted, the conclusion which can be drawn from it remains doubtful. It is not clear when the marks would have been made. I repeat that the movement of some 170 animals by truck, presumably in the dark, would have been a sizeable operation, carried out not all that far from a road or from the property of Ms Ryan. I might say that, if the evidence of Ellison that the very best breeders had been picked out from the herd and removed was accepted, the operation in question would become even more sizeable and difficult. The likelihood of it being carried out between 27 and 29 May, and probably at night, seems to me to become somewhat remote, to put it mildly.
720 In short, I do not accede to the argument that the evidence establishes that, on the balance of probabilities, thieves came and removed the cattle after the RSPCA had departed, or indeed at any time following the arrival of Nicholls on 27 May.
721 That brings us back to the starting point. There is no evidence that, on the balance of probabilities or indeed at all, some 170 cows were removed from or were allowed to escape from Framlingham after the arrival of Nicholls and the commencement of the bailment on 27 May. Whatever their number, there is no evidence that a sizeable portion of the herd was stolen or escaped whilst the RSPCA, via Nicholls, was in possession or control of the animals and was thus a bailee.
722 The situation is not assisted by reference to the so-called presumption of continuance. I note that the learned authors of Cross on Evidence, Australian Edition, refer in paragraph 1125 to continuance, stating that:
"... the question is simply one of relevance, depending on common human experience, and it would be best to avoid the use of the word 'presumption' altogether in this context, or, if that too must be employed, it should be qualified by the use of some such expression as a 'presumption of fact' or a 'provisional presumption'."
The authors go on to say that everything depends upon the facts of the particular case - "Thus, the presumption of continuance is no more than a convenient way of describing a process of logic or reasoning involving the drawing of inferences from established facts."
723 The established facts in the present case are that 497 cattle were delivered some three months before the arrival of Nicholls and the commencement of the bailment; there were some fluctuations in the number of cattle caused by births and deaths, but no great variation by reason of this overall; no specific or approximate head count was conducted after the arrival of the cattle; and something in the order of 170 cattle were found to be missing by the end of May 2003. It seems to me that no process of logic or the drawing of inferences can lead to the conclusion that those cattle disappeared in the last three days of the period in question.
724 If the number of cattle present at the commencement of the bailment period cannot be established on the balance of probabilities or at all, and there is no evidence which establishes on the same balance that the RSPCA did anything during those three days that directly or indirectly led to or facilitated the disappearance of the cattle, it seems to me that the plaintiffs must fail in establishing that the defendant is in breach of its duty as a bailee of the missing cattle. Further, even if the number of cattle on the property at the commencement of the bailment period could be established, there seems to me to be considerable doubt as to whether a breach of duty by the RSPCA as bailee has been established. As stated in Rolfe, the onus is on the bailee to show that the goods have been lost without negligence on the bailee's part. In other words, it is not a situation of strict liability. If the bailee can establish that there was no negligence on its part, this is sufficient to discharge its obligations as bailee. In the present case, it was not contended that Nicholls did anything other than leave the property in the condition in which he found it. This included the closing of any gates that had been opened. It is to be remembered that it is a rural farm property with which we are dealing and that such property did not belong to the RSPCA as bailee. Perhaps Nicholls could have placed temporary locks on gates, but it seems to me to be clearly arguable that the bailee has discharged the burden of establishing the absence of negligence on its part.
725 In any event, because there is an absence of evidence as to the number of cattle of which the bailee took possession and control at the commencement of the bailment period, it seems to me that the plaintiffs must fail in relation to their claim based upon breach by the RSPCA of its duties as a bailee of the missing cattle. Because the RSPCA has not discharged the onus to show that the cattle that were put down were lost without negligence on its part, the plaintiffs are entitled to succeed in relation to those cattle. Indeed, as set out above, were it necessary in relation to bailment, the plaintiffs have gone one step further and positively established negligence on the part of the defendant in relation to the cattle that were put down.
726 Because of the findings which I have already made, there is no need for me to deal with these causes of action at any length.
727 Mr Langslow barely touched upon the pleaded torts of trespass, detinue and conversion in his closing address. The focus of Mr Scanlon upon them was not great. Without going into it in detail, it seems to me that the basics in relation to trespass have been established in relation to the animals that were put down. As was stated by Dixon J in Penfolds Wines Pty Ltd v Elliott [1946] HCA 46; (1946) 74 CLR 204, trespass is a wrong to possession. Dixon J found that, on the facts, there was "never any invasion of possession". In relation to the cattle that were put down, it seems to me that there was an "invasion of possession". However, I appreciate that there is also an argument that the RSPCA had taken possession pursuant to the provisions of the Act. Given the way that the case unfolded, there seems to me to be no necessity for me to go into the issue of trespass at any great length. My prima facie impression is that the ingredients of trespass to goods have been made out but, given what has been discussed above, such a finding is somewhat unnecessary. Similarly, the ingredients of conversion may also have been established in that there has been interference or dealing with the cattle by the defendant exercising dominion over the slaughtered animals. Again, there may be a contrary argument that the RSPCA's action in relation to the slaughtered cattle was authorised by the Act. Presumably there would then be further argument, both in relation to trespass and conversion, that Nicholls was not justified, pursuant to the provisions of the Act, in putting down the animals in question.
728 Detinue would raise various arguments. The evidence does not seem to me to establish that a clear demand was made by the plaintiffs in respect of the return of either the animals or their carcasses. It is a condition precedent for the action of detinue that there be a demand and a refusal. It would not seem to me that those ingredients have been established.
729 Again, because of earlier findings, not a great deal of attention need be paid to this cause of action. It was argued on behalf of the RSPCA that there is nothing in the Act to support the existence of a statutory duty on the part of the plaintiff and the mere fact that an exercise of power is subject to a qualification, for example, "belief on reasonable grounds", is not a manifestation of legislative intent to create a statutory duty. It was also argued that a statute such as the Act does not create a right to a private cause of action if the statute as a whole can be characterised as passed primarily for the general good, rather than for the protection of some only, within the wider community - see Gardiner. It was conceded that the absence of a penalty for failure to comply may weigh in favour of the existence of a private cause of action - see Stockwell.
730 The plaintiffs argued that, pursuant to s21(1)(c)(i) and (ii)(B) of the Act, Nicholls was required to determine on reasonable grounds that the cattle were abandoned, distressed or disabled before any consideration could be given to the destruction of the cattle and then only on the basis that the cattle could not properly be treated. Thus, the power to destroy is a power of last resort and, despite the provisions of s21(2A), Nicholls went ahead with the putting down of the animals.
731 The argument on behalf of the plaintiffs seems to me to go more to the merits of the situation, rather than addressing the argument of the RSPCA that, given the nature and wording of the Act, a private cause of action for breach of statutory duty does not lie. In the present case, unlike in Stockwell, the absence of a penalty for a failure to comply may weigh in favour of the existence of a private cause of action - see X (minors) v Bedfordshire CC [1995] UKHL 9; [1995] 2 AC 633.
732 I might say that the presence of a remedy for breach seems to have been something to which Gillard J attributed some weight in Stockwell. Against that, there is nothing in the Act to evidence a legislative intent to create a private cause of action for breach of statutory duty and the absence of express words giving a private cause of action was regarded by Gillard J in Stockwell as being significant.
733 On balance, I would be of the view that a private cause of action for breach of statutory duty would lie, particularly bearing in mind the absence of any penalty provision. If it did, a breach would have been made out in relation to the slaughtered cattle for the factual reasons set out above. Thus, the end result would be the same.
734 The presentation of the plaintiffs' case and submissions also involved considerable attention being paid to the assertion that the RSPCA was negligently in breach of the duty of care which it owed to the plaintiffs in respect of employing reliable and trustworthy employees suitable and fit to deal with the type of situation which arose at Framlingham. Emphasis was placed upon the previous shooting incident involving Nicholls and particularly the contents of the letter of 2002 to Mr Barber.
735 That Nicholls had not undergone any psychological or psychiatric treatment, other than six meetings with a psychologist as part of the debriefing process following the shooting, is something which I accept. However, what is contained in the letter to Mr Barber, the State Director of the RSPCA at the time, is a cause for concern.
736 Mr Apostolidis, then the chief inspector, was unaware of it, but regarded the contents as being significant and very disturbing. Had he been aware of it, he would have discussed a possible change of role for Nicholls, and removing him from fieldwork would have been an option.
737 The letter, dated 8 July 2002, thus gives an indication as to the problems which the plaintiff was encountering less than a year before the events at Framlingham. In my view, the RSPCA was negligent in not bringing this letter to the attention of its chief inspector and Nicholls' superior.
738 Whether that negligence was productive of the loss and damage sustained by the plaintiffs as a result of the slaughter of the cattle is another matter. The cause of Nicholls acting in the way that he did is a moot point.
739 Mr Scanlon submitted that I effectively had to determine between whether Nicholls had acted like some form of maniac or whether he had acted properly and reasonably. I do not accept that those two extremes represent the only possibilities. Even though he was aware of the ownership of the animals, Nicholls may have so acted because of impetuosity. In relation to the position which he adopted, he may have been impatient or obstinate. There may have been some pressing reason why he was not prepared to wait another day or why he wished to have the matter effectively completed by the weekend. He may have been suffering from the problems described in his letter to Mr Barber. He may have been wishing to avoid a confrontation. There exists a range of possibilities going beyond those which I have just listed. Whilst it might satisfy curiosity and add some completeness if the motivation for his behaviour could be established, the evidence does not allow this. What he did, rather than why he did it, lies at the heart of my determination.
740 Thus, whilst it seems to me that the RSPCA was negligent in effectively ignoring the letter from Nicholls to Mr Barber, the state of the evidence does not permit me to find that this negligence was causative of the loss and damage suffered by the plaintiffs.
741 In summary, the plaintiffs are successful. They have established liability on the part of the RSPCA in relation to a number of cattle put down by Nicholls. I will repeat, in very summary form, the key findings which I have made and which lead to this conclusion:
(i) on the night of Tuesday, 27 May 2003, when Nicholls rang Holdsworth, Holdsworth told him that he was a part owner of the cattle;
(ii) Holdsworth organised to meet Nicholls on Friday, 30 May;
(iii) Holdsworth was not aware of the urgency of the situation or that the killing of cattle had commenced;
(iv) Nicholls did not contact Holdsworth on Wednesday, 28 May, when he put down a few animals and made arrangements for a major assessment of the herd on the following day, such arrangements including the presence of trucks from Tesbury;
(v) on Thursday, 29 May, Nicholls, who was at all times in control of the situation and the operation, commenced the assessment process, which was effectively a culling of the herd;
(vi) if any doubt existed as to the ownership of the cattle, this had been removed before the assessment process began, Nicholls having been provided with the results of the business name search;
(vii) at an early stage, before the essential assessment and killing had taken place, Mr Rentsch spoke to Nicholls about the fact that Holdsworth was coming for a meeting with him on Friday, 30 May;
(viii) at no stage did Nicholls clarify the ownership situation with Dr Irvine, who proceeded to act in the belief that the animals were abandoned;
(ix) had Dr Irvine known that the ownership of the animals was something of which Nicholls was aware and an owner would have been available on Friday, 30 May, to discuss the matter, that would have absolutely made a difference to the course of action;
(x) in controlling the situation, Nicholls effectively did not permit the treatment of individual animals;
(xi) Mr Wagstaff, an impressive and independent witness, queried as to why the cattle were being put down, given their condition;
(xii) the whole operation conducted by Nicholls on behalf of the defendant (including the assessment process in which Mr Kelly participated) seems to have been conducted with what could be described as indecent haste;
(xiii) there is effectively no reason why that whole operation could not have been put on hold for at least one day so that Holdsworth (and Ellison) could have been consulted in relation to what could be done for the cattle;
(xiv) Nicholls expressed the view that the remaining cattle were, in the opinion of the veterinarian, not capable of being moved. Dr Irvine gave evidence to the contrary. The remaining cattle were in fact moved without what could be described as any major problem;
(xv) no proper or complete inspection of the feed available to the herd was carried out, in that the paddock to the western side of the driveway does not seem to have been examined and, more importantly, minimal examination of the grass available in the forest occurred.
742 In a long and complicated case, they are just some of the key findings. There were various other matters which I have set out above which have convinced me, on the balance of probabilities that Nicholls, on behalf of the RSPCA, hastily and negligently put down, or caused to be put down, a considerable number of cattle.
743 Having found in favour of the plaintiffs on the question of liability, I am now to determine how many cattle form the foundation of the claim of the plaintiffs for loss and damage. Whilst this can be dealt with far more briefly, again it is not a simple task. Again, there are mysteries.
744 As stated, the number of cattle forming the basis for the assessment of damages does not include the missing cattle. For obvious reasons, it does not include the retrieved cattle. It centres on the cattle that were slaughtered.
745 At the outset, I say that I am satisfied that the animals wrongfully and hastily put down include two bulls. Four bulls were delivered. No bulls were retrieved. No bulls show up in the Tesbury records. However, Nicholls was of the view that he only ever saw two bulls and both were put down. Dr Irvine, a witness whom I accept on many issues, stated that his records clearly showed that two bulls had been put down and that he had no doubt but that there were a couple of bulls present. Ms Heck was reasonably confident that two bulls were put down, only modifying her opinion when it was put to her that the records of Tesbury differed in this regard. Even then, her explanation was that it was possible that the veterinarian had changed his mind, but the evidence of Dr Irvine would indicate that this did not occur.
746 Importantly, the photographs contained in Exhibit H indisputably show that there were a couple of bulls in the yards during the assessing process, and it is to be remembered that all surviving cattle were ultimately retrieved. None of these were bulls. Mr Kelly confirmed that he saw a total of two bulls. Whilst Mr Rivett was confident as to the accuracy of the Tesbury records, he also stated that he was unable to say if any bulls came in.
747 Mr Moloney stated that, whilst he could recall no bulls in the pile of carcasses which he inspected, it was possible that smaller bulls could get past him on the chain. On balance, I prefer the more positive evidence that two bulls were put down. This also coincides with the photographic evidence that two bulls can be seen in the yards, but no bulls were amongst the animals retrieved.
748 I turn now to the number of cattle, apart from the bulls, that were put down by Nicholls and others on behalf of the RSPCA. I am not including animals that died otherwise than at the hand of Nicholls or those working with him. In this regard, it seems to me that the safest and most reliable evidence is that based upon some of the Tesbury records in relation to carcasses collected. In that regard, I would refer to Exhibit 8. As shall be discussed, even then the figures require some adjustment and discussion. However, these records in general strike me as being more accurate than some of the estimates given by eye witnesses either to the slaughter of the animals or to the processing of the carcasses.
749 The cattle put down on 27 and 28 May 2003 seem to have totalled 16 cows and either two or three calves. Exhibit 8 contains both what is described as the daily record of animals processed and a sheet which seems to be a summary of this with some additional input from the individual drivers. In relation to the total number of carcasses collected on 28 May 2003, the difference between the two is small. In fact, it amounts to one calf - the daily record sheet referring to two calves whereas the summary, dealing with the situation driver by driver, refers to three calves. I have previously expressed some reservations concerning the accuracy of the record taking of Tesbury and prefer the version which appears to have also had some input from the drivers. Therefore, I accept that 19 animals, being 16 cows and three calves, were collected on 28 May 2003.
750 Considerable doubt exists as to whether this number should include the cows upon which post-mortems were performed. There is reference in the summary to the load collected by driver, Mr Paul Unwin, on 28 May to two cows which had died on the previous day. Whether or not this is a reference to the cows upon which post-mortems were performed, the conclusion which I have reached is that such animals should not be included in the estimate of those which are to form the foundation of the claim. The impression which I have gained from the totality of the evidence is that, as stated, considerable doubt exists as to whether the cows upon which post-mortems were performed were, in fact, taken to Tesbury.
751 In any event, in relation to the cow upon which Dr Irvine performed a post-mortem, he stated that this cow was profoundly emaciated, but did score it at 1 out of 5. He had been present when it was euthanised, and expressed the opinion that this needed to be done because it was too weak to get up, although not laterally recumbent. However, he did modify this by saying that he would not have been happy to leave it where it was without it having quite intensive medical therapy, and even then he was not sure that it would have been able to be brought back. It is to be remembered that, at that time, he seems to have been supplied with no information as to ownership, and I would refer to earlier passages in this Judgment. However, on balance, I will exclude it from the tally on the basis that it was in the condition described by Dr Irvine and that a post-mortem may have been deemed necessary in the circumstances prevailing. The same applies to the animal which was the subject of the autopsy performed by Dr Page. Accordingly, I make no allowance for those two cows.
752 Further, the summary, into which apparently there has been some driver input, refers to the collection of 28 May 2003 as including "the 6 cows dead already in paddock". Whether these were put down by Nicholls or had died for other reasons is not specified. I shall also exclude them from the calculation which I am making.
753 This means, after deduction of the two cows on which post-mortems were performed and the six which were already dead, that the allowance which I make is for eight cows and three calves, as stated above.
754 I now turn to the cattle put down on 29 May 2003. I am including in this figure animals that were shot during the mustering process. Evidence was given concerning how cows that go down can be saved with appropriate treatment. One factor that is not entirely clear is whether the number of carcasses taken to Tesbury included those of cattle that had died prior to the intervention of Nicholls. In trying to assess this, I would point out the following. The evidence was that cattle that had been dead for some four or five days would not be picked up by Tesbury - see, for example, the evidence of Mr Rentsch. In any event, Mr Rivett gave evidence that on Wednesday, 28 May, 16 cows and three calves came in. As stated, for 27 and 28 May I am allowing eight cows and three calves, so that the balance may well represent carcasses of animals that had otherwise died (including the two cows upon which autopsies had been performed).
755 Trying to get the various numbers to tally is extremely difficult. However, I have come to the following conclusion. I am not satisfied that the total number of cattle that came into Tesbury is in fact in the order of 180, as one estimate carried out by Mr Rivett would seem to indicate, even though the bulk of his evidence elsewhere is to the effect that the total number was 140 (see T2407). It seems to me that some confusion may well have been caused by an entry early in the day in the daily records of Thursday, 29 May. What it appears to be is a request by Nicholls for a truck to collect 50 dead cows at 10.30am. Mr Rivett can recall Nicholls ringing him on the evening of 28 May requesting trucks for the following day. He referred to some conversation concerning the possibility of getting a truck there earlier. I would also refer to the evidence of Mr Moloney to the effect that Mr Steve Wakeling took a truck out early, was gone for a while, but came back without a load, effectively saying that things were somewhat disorganised at Framlingham. Mr Rentsch gave evidence that he attended Framlingham at approximately 1.00pm and, at that stage, the shooting had not started. On the basis of the available evidence, such as it is, it seems to me that the first entry on 29 May referring to 50 dead animals is a request for a vehicle with some advance indication as to the size of a load, without there being a specific head count. I note that there would also appear to be a question mark on the same line of the records, although this may or may not be referring to a map reference. Thus, it may be that those 50 animals represent double counting as, rather than being a separate load, they represent an estimate of animals that may need to be taken in the first load or two.
756 One thing seems reasonably clear. If those 50 are removed, the various estimates of animals put down and taken to Tesbury roughly, although not precisely, coincide and tally. That is after the adjustment to be made in respect of animals put down before 29 May. Certainly the total is not in the order of 180. Whilst Mr Rivett's evidence varied at times, what he stated with some confidence was that the total number of carcasses brought in on 28 and 29 May was 140. If eight are deducted from that, in respect of the cows which I have not allowed, the total is then 132. If the summary prepared at the time with driver input is examined, and I prefer it, the total number of carcasses delivered to Tesbury is 139. By my reckoning, if the figures in the less satisfactory daily records are added, and what I might describe as the contentious 50 are excluded, the total figure seems to me to be 138. Again, ultimately eight are to be deducted. Dr Irvine said that 117 were put down whilst he was present. Obviously that does not include those previously put down. If the 19 collected on 28 May is added to this, the total number of carcasses delivered should then be 136. Ms Heck was of the view that 117 cattle were shot on 29 May by Tesbury employees. If the 19 animals taken to Tesbury on 28 May is added to that figure, the total would be 136.
757 The figures can be juggled back and forth. On balance, I am satisfied that 139 carcasses were delivered to Tesbury, this being the number set out in the summary document prepared on the basis of information relating to each driver. From that figure I am deducting eight animals for the reasons previously set out. It may be that I am doing the plaintiffs a disservice in relation to what could be described as the "floating fifty", but the weight of evidence seems to me to indicate that a total of 139 relevant carcasses were taken to Tesbury. Then, as discussed, a further deduction of eight is made.
758 Thus, I find that the number of cattle negligently put down by Nicholls on behalf of the defendant and representing the foundation of the plaintiffs' claim for damages is 131. Of that 131, two were bulls and three were calves.
759 I find that the plaintiffs have established negligence on the part of the RSPCA. Nicholls hastily and negligently put down 131 animals. The case can now progress to the assessment of damages. I shall discuss with the parties how this should be done. Hopefully, this remaining aspect of the case can be dealt with more expeditiously than was the keenly contested battle concerning liability.
Holdsworth & Ellison
RSPCA [2014] VCC 1186
(1923) 33 CLR 538
(1959) 101 CLR 298
(1946) 74 CLR 204