Erroneous conclusions
173 The judge did not expressly find that the appellants had failed to establish that Ms Piddington or Mr Peyton did not believe them guilty. Probably there was no question of any belief of the RSPCA separate from that of these officers. His Honour's reasoning was, in short, that on the information they had there were reasonable grounds for the officers to bring the charges of failing to provide food for the horses, and that there were reasonable grounds for Mr Peyton to charge Ms Donnelly with failing to provide her name and address. Implicit in this was that the officers believed in the appellants' guilt. There was reasonable and probable cause, and further it had not been established that Ms Piddington or Mr Peyton acted maliciously in the extended sense by which his Honour directed himself.
174 In my opinion, no error has been shown in his Honour's conclusions.
175 The original written submissions appear to present two arguments.
176 The argument presented in relation to Mr Krivoshev was that the judge failed to analyse the evidence with regard to "what evidence was not obtained by the Respondents … to confirm or reject the proposition that the subject horses had been mistreated and not fed … ". This would also seem material to the charges of failing to provide food for the horse brought against Ms Donnelly.
177 If intended to go beyond what the blood tests did not show (see earlier in these reasons), this presumably was an argument that the RSPCA should itself have recognised that the condition of the horses might have been due to contaminated water, as suggested by Professor Hunt, and tested the water and decided not to bring or continue with the charges. The judge did not accept what appears to have been a similar argument, and observed that even if the RSPCA was aware of contamination that did not mean that the charges were brought without reasonable cause because whether contaminated water caused the weight loss "may well have been a debateable issue". If the argument went to some other evidence not obtained by the RSPCA, it was not explained. The RSPCA had a sound basis for considering that there were reasonable grounds for the charges, in the observations of the horses' condition and the opinions of Dr Radvan and Dr Lawrie, and I do not think it was shown that other steps should have been taken whereby it would not have charged the appellants or withdrawn its charges at an earlier time.
178 The argument presented in relation to Ms Donnelly was that, if her arrest was an abuse of Mr Peyton's powers, there was necessarily absence of reasonable and probable cause and there was necessarily malice. The argument fails, if for no other reason because it was not shown that the arrest was an abuse of Mr Peyton's powers.
179 I go to the matters under the dot points in the appellant's additional written submissions and in the document challenging finding of facts as to grounds 1, 2 and 3. Most were by way of challenge to the judge's preference for the evidence of Mr Bell, Ms Piddington and Mr Peyton over that of Mr Krivochev and Ms Donnelly; some went to more general acceptance of the evidence of the RSPCA officers. The judge was emphatic in that acceptance, see earlier in these reasons, and as I have said a few of the matters only were taken up in oral submissions. It was often difficult to see the point being made.
180 One matter apparently thought by the appellants to be of particular significance concerned events at Fairfield Local Court on 29 July 1998. It appeared to have two aspects.
181 It was submitted that Mr Bell had admitted making a false affidavit of service of reports of Dr Radvan and Dr Lawrie and a Dr Cannon, and implicitly that the judge should therefore not have considered him creditworthy. A reading of the transcript for 29 July 1998 does not support the submission. The reports were provided to Mr Krivoshev when other documents were produced under subpoena. There was unclear reference to accompanying notices of intention to rely on the reports, probably to the effect that the notices were also produced but taken back for completion. The learned Magistrate did not agree that what had occurred was service. Before the judge the cross-examination of Mr Bell treated the occasion as a "mix-up" in which he had not followed procedure, and did not put to Mr Bell that he had deliberately sworn a false affidavit. The appellants' present submission should not be accepted.
182 It was also submitted that Dr Radvan and Dr Lawrie had not been at the Fairfield Local Court on the morning of 29 July 1998, because Mr Wozniak then appearing for the RSPCA told the learned Magistrate that he did not have them available. The point appeared to be that the veterinarians had given evidence in the District Court that they had been at court, and that the false affidavit of service and a misrepresentation as to the presence of the veterinarians showed that the RSPCA was scared to have its veterinarians confront Professor Hunt and knew it did not have reasonable grounds for the charges.
183 The appellants sought to rely on additional evidence to establish that Mr Wozniak told the learned Magistrate that he did not have Dr Radvan and Mr Lawrie available. The appellants had tendered in the District Court a transcript of the hearing in the Local Court. The transcript recorded in short form the tender of three veterinary reports, objection to their tender, and that there was legal argument. The appellants tendered in this appeal the transcript underlying this summary ("the additional transcript"). According to the additional transcript, when tendering the reports Mr Wozniak said of the veterinarians, "I don't have them here, I don't intend to call - I'm relying in the Evidence Act in that regard, your Worship".
184 The additional transcript could have been obtained and tendered in the District Court. The sound recorder's notes were tendered and showed that there was a record of the matter transcribed in short form. In any event, the evidence of Dr Radvan and Dr Lawrie was that they were at Fairfield Local Court early in the morning and returned later in the morning. Mr Wozniak clearly enough wanted to rely on the veterinarian's reports, but it was not put to him that he was seeking to keep their authors from the witness box for fear that his case would be exposed as without foundation or for any other relevant reason. Even if the additional evidence were admitted, the appellant's present submission is without substance. The additional transcript should not be admitted.
185 It is convenient now to deal with the other items of additional evidence on which the appellants relied.
186 The judge's reasons included -
"53. It was a recurring theme of MK's evidence that they were relying upon the advice in relation to feed given them by either the Leppington vets or the Rossmore Vets. In the circumstances this was an important aspect of the Plaintiff's case, as it illustrated, if accepted, of the care being taken for the welfare of the horses prior to seizure.
54. The only evidence adduced in relation to veterinary care or advice, given to MK was that of Mr Humphries, a veterinary surgeon from Rossmore Vets.
55. The records were produced by Mr Humphries, in response to a subpoena by the RSPCA. The only record of advice or attendance, was after the horses had been returned to MK following seizure. The horses were returned in August 1998 following the conclusion of the proceedings of the Fairfield Local Court.
56. MK gave evidence that Mr Humphries had attended the property prior to the seizure and had treated the horses for colic.
57. The records revealed that this visit occurred on the 22 October 1998, ie after the horses were returned by the RSPCA.
58. There was no evidence adduced from the Leppington vets in respect of any advice or treatment given to the horses at any stage whatsoever."
187 At a later point his Honour said -
"Insofar as it was relevant for the purpose of these proceedings to establish that the Plaintiff was providing sufficient food for the horses, prior to their seizure, I have come to the conclusion that I can not accept the Plaintiff, MK's, evidence in this regard. I am reinforced in this view by the failure to call any of the vets from whom he says he received advice concerning the feeding regime."
188 The appellant tendered in the appeal a copy receipt from Leppington Veterinary Clinic dated 6 June 1997 recording the receipt of $20 from "Kaye". The apparent purpose was to support that Leppington Veterinary Clinic had given advice on feeding.
189 The feeding regime in fact followed by Mr Krivoshev would no doubt have been important in the prosecutions, but it was of only indirect relevance to the appellants' causes of action. The possible relevance need not be considered. Mr Krivoshev said that the receipt was found after he moved house and was not available for the District Court hearing. When Leppington Veterinary Clinic could have been subpoenaed to produce its records, it is difficult to accept that evidence of the payment, for whatever the veterinary purpose was, could not have been given. But it does not matter, because the receipt does not indicate anything more than a payment for a veterinary purpose. It does not support advice on feeding so far as that may have been relevant. The receipt should not be admitted.
190 I have referred to the judge's observation, in his [103], to the effect that Mr Krivoshev admitted ownership of and responsibility for the horses on 28 January 1998 because by that date he thought he had evidence to defend charges brought against him. The water analysis was dated 28 January 1998. The appellants tendered a copy letter dated 12 January 1998 from their solicitor to the RSPCA, through which Mr Krivoshev offered "to attend your premises for the purpose of making a written admission as to being the person in charge of the horses the subject of the previous complaint against his wife". It was said that this showed that the judge's observation was incorrect.
191 The letter was not fresh evidence, and could have been tendered in the District Court. In any event, the judge spoke in the terms "I suspect", as an observation rather than a finding. Mr Krivoshev's reason for making the admissions was unknown to the RSPCA, and the aside about it was not material to the outcome of the proceedings. The copy letter should not be admitted.
192 A matter in the oral submissions returned to the pathology evidence. It was submitted that Dr Lawrie had relied on the blood tests, and that his opinion was undermined by the common ground that the blood tests were inconclusive in indicating one way or the other whether the horses had not been properly fed while on the property. Implicitly, there was therefore absence of reasonable and probable cause and malice.
193 Dr Lawrie's certificate of expert evidence included that "[b]lood samples revealed changes consistent with a low plane of nutrition and dermatitis secondary to the lice infection". He was not asked about this statement. Whether he was referring to the blood tests earlier described is unclear, but if he was he spoke only of consistency with low nutrition and did not rest his opinion on the blood tests. It was not put to him that his opinion that the horses were inadequately fed was undermined by reliance on worthless blood tests, and his opinion specifically rested upon weight gain on proper feeding and exclusion of relevant disease process. The submission is without substance.
194 I have gone to the matters listed in the appellants' additional written submissions apart from those already mentioned. I do not think that any of them provides any ground for impugning the judge's acceptance of the evidence of the RSPCA officers, or detracts from the judge's view that absence of reasonable and probable cause had not been shown and malice had not been established. These reasons are already long, and I will not make them longer by recitation of the inconsequential: see Australian Breeders Cooperative Society Ltd v Jones (1977) 150 ALR 488 at 503; Amadio Pty Ltd v Henderson (1998) 81 FCR 149 at 175; Bar-Mordecai v Rotman [2000] NSWCA 123 at [212].
195 Here also I take account of the passage of the ten months, and I do not overlook that the judge did not in terms deal with all the particulars of malicious prosecution in the statements of claim. The particulars were not well drawn. They rested in large part on alleged inadequacy of investigation or absence of reasonable grounds for the charges. Some of the particulars raised the lack of forewarning of the service and arrest on 10 March 1998, which could be thought undesirable conduct but would not suffice for malice. The remainder in substance were negated by the judge's findings, and the judge clearly declined to find the malice to which they went. The judge was alive to the particulars, since they were in the pleadings which he set out. Again, I am satisfied that the evidence and issues would have endured in the judge's mind, and I consider that his Honour's conclusions that absence of reasonable and probable cause had not been shown and that malice had not been made out are not to be doubted because of the lapse of time.