Perrett v Williams

• 220 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JUDGMENT 1 HIS HONOUR: This is a case about a mob of sheep which, in the beginning numbered about 5450, leaving aside lambs, but which, during the 1991-1993 period, suffered a series of trials and tribulations leading to their early demise, or their forced sale without other than minimal return. The plaintiffs, who were the owners of these sheep, attribute their successive misfortunes to the actions of the defendants, which they claim to have been malicious, vindictive, careless and unprofessional. 2 At the relevant times, the first and third defendants held office as rangers/inspectors, and the fourth defendant held office as a veterinary officer. They were attached respectively to the Moree and Glen Innes Rural Land Protection Boards, which were also joined as the second and fifth defendants. The remaining defendant is the State Department of Agriculture. 3 The defendants reply that they acted, at all times, in good faith, humanely, and professionally in their dealings with the plaintiffs, and with their sheep. 4 The fault, they assert, lay in the hands of the plaintiffs for failing to ensure that the mob was free of disease, and for failing to properly manage, water, and feed the sheep, in their later travels. 5 The matter is of some complexity, no less so because of the many movements of the sheep, following their assembly and transport to the travelling stock reserve (TSR) near Moree, and the many detention orders, stock movement orders, and quarantine notices, which thereafter accompanied them. 6 It also has some legal complexity, in so far as the plaintiffs allege against the defendants the torts of negligence, misfeasance in public office, intimidation and trespass to goods and to land. In reply, the defendants place in issue every allegation made of misconduct or fault, and rely upon statutory defences dependent upon the exercise of their powers in good faith. 7 The plaintiffs claim for damages is no less complex, since they seek ordinary compensation for wasted costs of transport and treatment of the sheep; for loss of profit opportunities in their fattening and sale, along with that of their progeny; for the forfeiture of one of their properties, and the locking up of another property as the result of the actions of their banker when, due to the financial losses associated with the mob, they were unable to meet their financial commitments to it; as well as aggravated and exemplary damages.

A. FACTS 8 The plaintiffs together were the owners of five properties in the Red Range and Pinkett Districts, namely "Rosemeadow", "Nassau", "Yarrow Creek", "Abbotsford" and "LL Ranch", the combined area of which was in the order of 813 acres. The first plaintiff Leslie John Perrett (usually known as Joe Perrett) was an experienced cattle man and sheep farmer, who had been in the habit of buying and selling stock, and running them on travelling stock routes, as well as on the properties mentioned. Mrs Perrett said that she was similarly experienced in sheep work and farming, and added that, with her husband, they had been successful in taking stock onto stock routes. She claimed that they had paid off "Nassau" and "Rosemeadow" and were reducing the "Abbotsford" loan, when they assembled the mob of sheep with which this case is concerned.

1. Mr Perrett's relationship with the Defendant Smith 9 Joe Perrett said that prior to the events of immediate relevance for these proceedings, he had encountered personal difficulties with the third defendant, John Hardie Smith, which he suggested were of a vindictive nature. They encompassed, on his account, the following incidents:

(a) In the mid to late 1970's he said Mr Smith had constantly approached him while he was on stock routes with cattle, requesting production of his permits and requiring the stock to be counted, so as to check the numbers against the permits. On one such occasion at the Dunbas Reserve on the Grafton Road he allegedly threatened court action, and the imposition of a fee for agistment in relation to what he claimed to be excess stock, but then, having commenced the necessary count, he abandoned it, without any further action. Mr Smith denied this allegation, although he acknowledged having spoken to Mr Smith on one occasion when he had failed to move his cattle in accordance with the requirements of a travelling permit, and instructed him to move them on the following day.

(b) On one occasion, in 1977, he said, Mr Smith remarked to him " you are rat shit as far as I am concerned and I'll get you ". Allegedly this followed the dismissal of a charge brought in the Local Court against Mr Perrett for not remaining overnight with the cattle at Beardy Waters which he had on a TSR near Grafton, which led, on his account, to Mr Smith being criticised by the Magistrate for bringing the charge. Mr Smith denied this allegation, and said that he had never given evidence against Mr Perrett, and had never been criticised by any Magistrate.

(c) In the late 1970's/early 1980's, he said, Mr Smith repeatedly harassed him by checking his sheep purchases through agents and on occasions quarantining them for lice. On one such occasion, he said, Mr Smith refused to let him dip some quarantined sheep at a neighbour's property, insisting instead that they be done, in a way that was physically laborious, in a bathtub. Some days later, he said Mr Smith phoned him, at a time when a creek on "Rosemeadow" was in flood, requiring an inspection. In attempting to comply with this demand, he said, twelve sheep drowned. However, he said, when Mr Smith arrived at the property, he released the sheep without inspecting them. Mr Smith denied harassing Mr Perrett and said that at sales he was required to inspect at least seven sheep in each pen.

(d) In mid 1986, he said that Mr Smith inspected some Merino ewes which he had just purchased at the Inverell sheep yards, and had taken to the Glen Innes saleyards, where he had intended to make further purchases. According to him, Mr Smith claimed to have seen lice on one of the ewes which he then jumped on, having thrown her to the ground, occasioning the animal fatal rib and internal injuries. On the same day, he said, Mr Smith announced publicly that he could not remove the remaining sheep but had to sell them, they being available only for slaughter in NSW. On the following day, he said, Mr Smith quarantined all his sheep at "Abbotsford", which were ready to go west on the stock route, alleging that there were lice in the Inverell sheep. Thereafter, he said, Mr Smith refused to inspect these sheep, or to clear them, until it was too late to send them away. These events, he claims, occasioned him financial losses. Mr Smith said that if sheep were diseased it was his duty to require the agent selling the sheep to make an announcement of this kind. In that circumstance, he explained, Mr Perrett had the option of returning the stock to the property of origin or selling them at auction for slaughter. He did not recall whether he had quarantined the sheep, on this occasion, but said he would not have done so had they been dipped. He denied mistreating the ewe.

(e) At one stage, in one of his many affidavits asserting bad faith on Mr Smith's part, Mr Perrett alleged that he was " getting even with [him] over a petition for his dismissal" in 1986/7, which Mr Smith accused him (on 16 March 1992) of having initiated. He also asserted, at another stage, that Mr Smith had reported the alleged deficiencies in the fences at "Abbotsford" later mentioned, as an excuse for not allowing the sheep to be shorn and dipped and then released onto the Glen Innes TSR. 10 No documents were produced evidencing any such events. In particular no detention or quarantine notices, or reports of inspections were tendered, relating to this period, other than a quarantine notice dated 14 February 1990, relating to "Abbotsford", which had been signed by Mr Montgomery.

2. The 1991 - 1993 Events 11 The events which are of immediate concern for these proceedings, conveniently fall into six separate time frames. These events span a period, which is now in excess of 10 years, with obvious problems in witness recollection. To some extent however, their reconstruction is aided by contemporary documentary records. 12 In view of the issues which arise, and the stark differences between the evidence led in the respective cases of the plaintiffs and the defendants, there is no option other than to set out the events alleged, and the evidence relating to them, in some considerable detail. In this regard, I have endeavoured to reconstruct the versions advanced by the various witnesses and parties whose evidence was placed before the Court in the form of affidavits and also oral testimony. Much of that material was repetitive and argumentative, and some of it amounted to submissions, or hearsay observations, rather than evidence in admissible or relevant form. Being tendered subject to relevance, I have confined this summary, lengthy as it is, to assertions of fact offered in proper form.

(a) Early 1991 to 1 October 1991 - Entry of the mob upon the stock route until their detention and removal 13 Between early 1991 and early June 1991, the plaintiffs assembled a mob of about 6254 sheep including Merinos, Border-Leister/Merino crossbred wethers and young ewes. The larger part of this mob was purchased through the Armidale, Guyra and Glen Innes sale yards at an average price of $0.50 to $3.00 per head. Others were purchased through the Dorrigo Abattoirs buyer when it lost an order and had, as a result, 1000 surplus sheep. The balance were already held on "Nassau", "Rosemeadow" and "Abbotsford". They also purchased some 14 rams which were put with the ewes, leading to them lambing in about September 1991. 14 The Perretts' intention was to take 5450 of the sheep to Moree on the stock routes, and in due course to sell them. The balance of 804 of the sheep were to be left in Glen Innes on agistment. 15 Mr Perrett said that, a neighbour, Darryl Meehan, of "Glen Athol", Red Range, who had agreed to allow his shearing shed, yards and dip to be used to shear and dip the sheep, and Les McRae, who had agreed to assist as a drover, each arranged to add some of their own sheep to the mob, when it went on the road. 16 In about May 1991, arrangements were made to shear and dip the plaintiffs' sheep, along with the sheep of Mr Meehan, on "Glen Athol", preparatory to them being taken onto the stock route. The dipping with Top Clip Blue Dip was uneventful in the sense that there were no losses, according to each of Mr Perrett, Mr Taylor and Mr Meehan, who attended to the task. It was Mr Meehan's evidence that the sheep, which he wanted to add to the mob, were crossbred ewe lambs which needed to grow out a bit. They were branded with an "S" over a wide "V". 17 Mr Perrett said that in May 1991, he spoke to the first defendant, Wayne Richard Williams, who was a ranger with the Moree Rural Lands Protection Board, seeking authority to put the sheep onto the stock route in June. He said that he received an indication that this would be all right, and that Mr Williams would call out to issue a permit. 18 On 16 June, Mr Perrett said, he went out with Mr McRae to inspect the Colly stock route, after speaking to Mr Williams, who, on his account, made no mention of any need for any clearance from a ranger or veterinarian before the sheep were taken to the TSR. 19 Mr Williams however, gave a somewhat different account. He agreed that he received a telephone call from Mr Perrett, but described the conversation in the following terms: " ' I'm Les Perrett. I'm a stock owner at Glen Innes. I'm after feed for my stock. What's the feed like west of Moree?' I said words to the following effect: 'It's good for this time of year. Come and have a look at the feed. Before they go onto a truck you need to get a clearance from the Ranger or Vet from your local Lands Protection Board. We need verification that the sheep are free from disease before they are loaded onto the trucks'. He said words to the following effect: 'No problem. I'll get that done and talk to you in a couple of weeks'." 20 Mr Williams added that he did not hear anything further from Mr Perrett for about a week until he found out that the sheep were already unloaded onto the TSR without confirmation of their disease status. 21 Between 23 June and 30 July 1991, Mr Perrett said that he sent by road transport 5750 sheep and 248 lambs out to the Moree-Collarenabri stock route on agistment. The transport costs of Stockmaster Pty Limited (for 5516 sheep) were invoiced to Mr McRae, amounting to $6514.40. Mr Scherf of Stockmaster said that he observed that the sheep which were carted had been shorn. Mr Perrett suggested that thereafter he paid fees to the Moree Board for 4,750 sheep, there being no charge for a further 1000 lambs. 22 The movement of the sheep out to the stock route was staggered, the later arrivals being taken to Bellarah Hall, because of the numbers involved and their different properties of origin, and also as a result of the first of the detention orders which came to be issued by Mr Williams. 23 Although there was some uncertainty as to the dates, it appears that Mr Perrett and Mr Cattell took on the responsibility for droving the first part of the mob to arrive on the stock route. On 25 June, Mr Perrett said, Mr Cattell went into Moree to obtain the necessary permit. It came to be issued in the name of Mr McRae. It seems that both the Perretts and Mr McRae also had cattle on the route. 24 On 25 June, Mr Perrett said Mr Williams came out to inspect the 3,779 sheep, at Whittakers Lagoon. He apparently found them to be free of lice and issued a travelling stock permit which, on its face, permitted their movement for about 50 kms from Whittakers Lagoon to Bellarah Hall. It was Mr William's evidence that Mr Perrett nominated Mr McRae as the owner of the sheep this day, and suggested that Mr Cattell was in charge. 25 On 26 June, Mr Williams came across the sheep again and issued a detention order (6555) requiring that they be detained at "Whittakers Lagoon and 2 km east of the yards", the reason being recorded as "suspicion of footrot to be checked". On the following day, he said, he went out to the TSR and found no one in attendance with the stock. He went looking for Mr Perrett and Mr Cattell, and on finding them at the Combadello Holding Yards, he reminded them of their obligations. The pattern of leaving the sheep insufficiently attended, he said, continued during their time on the TSR. 26 On 28 June Mr Williams and a labourer (Mr McGowan) from the Moree Rural Lands Protection Board went out to the TSR, along with "Mick" Beatty, the Moree senior ranger, and Bill Hetherington, District Veterinarian, and examined the sheep for footrot and lice. Mr Williams allegedly said to Mr Perrett that he had to inspect the sheep, because Ranger Smith from Glen Innes had told him that his sheep had footrot. Mr Williams said that the inspection had been arranged because the Glen Innes region was a footrot area. Each of Messrs Williams and Smith said that they had not previously known one another, and had not spoken directly about the Perretts' sheep. 27 The examination which was conducted, according to Mr Perrett, showed that some of the sheep had foot abscesses, due to having been carted to Moree in trucks which had not been washed down properly. The condition discovered was not footrot and was not a notifiable disease under the Stock Diseases Act. Mr Beatty confirmed that no footrot was discovered, as did Mr Hetherington who explained that the sheep were inspected for footrot "as per the Board policy", since they had come onto the TSR without any form of documentation or inspection at Glen Innes. Mr Perrett said at the trial that there was an argument between Mr Williams and Mr Hetherington in relation to this inspection, insofar as Mr Williams was pushing Mr Hetherington to examine more and more sheep. Mr Williams denied that this had been the case, asserting that he had just begun to work with the Board, that he had no experience with footrot, and was just one of the workers there to assist the District Veterinarian. 28 In the meantime, on 27 June, an inspection was made by Mr Smith in respect of the 650 lambs, which were still at "Glen Athol", for footrot. Specimens taken were tested and later reported as not revealing that condition. Pending the test results, a 40-day quarantine order (B30331) was issued by Mr Smith, over "Glen Athol". A release order was issued on 1 July 1991 by Mr Montgomery. These sheep then went out to the stock route. Mr Meehan said that thereafter he went out to the stock route for a couple of days "to check up on things and to give the Perretts a hand". 29 In his report of 27 June, Mr Smith noted that Mr Hetherington had advised of the arrival, at Moree Travelling Stock Reserve, of a mob of sheep from the Glen Innes region, in which suspect footrot had been found. He reported that his own inquiries had revealed that there were 4379 sheep in the mob, which had been purchased at various saleyards, and that there were a further 650 sheep still at "Glen Athol" which had been due to follow the sheep that had already been moved. 30 He recorded that, in the course of a conversation and a formal interview with Mr Meehan, the latter had indicated that the sheep had originally been purchased by "his cousin" Mr Perrett, and by Les McRae, originally to sell to Dorrigo Abattoirs. When that sale had fallen through, he said that they had decided to shear and dip the sheep on "Glen Athol" because they were suspected of having lice, and then to take them to the Moree TSR. Mr Perrett denied that there was any blood relationship between himself and Mr Meehan, or that the sheep had been purchased by him for sale to the abattoirs. In fact, he said that he had purchased them when an order which the abattoirs had received had been cancelled. 31 Mr Smith said, in his statement, that he had inspected 17 sheep out of a mob of 650 sheep on "Glen Athol" following the telephone call from Mr Hetherington, and that although he had not seen footrot, there were some lesions and underrunning, which had led him to take the smears for testing, which later proved negative, and to issue the quarantine notice pending the laboratory results. 32 Notwithstanding the sequence of events involving the detention of the Moree sheep on 26 June, and the quarantine of the "Glen Athol" sheep on 27 June, Mr Perrett maintained his insistence that Mr Smith had put into Mr Williams' mind, the detention of the Moree sheep for footrot. 33 On 2 July 1991, noxious animal inspector Robert Lynn and Mr Smith carried out an inspection of the 300 or so sheep on "Abbotsford". These appear to have been 266 sheep which had been purchased at Glen Innes Saleyards in April, and 102 shorn and dipped sheep which were not eating well, that had been transferred to "Abbotsford" from "Glen Athol" on 1 July, none of which, on Mr Perrett's account, had lice or footrot. 34 Mr Smith, however, submitted a report to the District Veterinarian advising that the sheep there were in a low condition and appeared wormy, and that some (which he identified as short wooled sheep) showed a "heavy infestation of lice", as well as some foot abscesses, although they did not appear to have footrot. He advised that the subdivision and boundary fences were not stock proof, and that there was not adequate sheep feed on the property. The report also recorded that complaints had been made about Mr Perrett's sheep "roaming the roads and streets of Red Range." 35 Mr Smith said that this muster and inspection had followed upon reports from Messrs Lawler and Gallagher to the effect that the plaintiffs' sheep were wandering around the village and seemed to be lame. Mr Perrett said that there could not have been any such complaints as there were no sheep on "Abbotsford" until the night of 1 July when Mr Meehan delivered some of the "Glen Athol" sheep there. 36 A fax message was sent to Mr Hetherington, and to the rangers at Moree, asking that they advise Mr Perrett that he had to shear and dip his sheep, on "Abbotsford", by 10 July, after obtaining an order from an inspector to move them to a shearing shed and dip. 37 A footnote was added to this report, on 8 July 1991, and sent to RSPCA Inspector Harmer by Mr Smith, recording that on re-inspection, the sheep appeared to be starving, and that no attempt was being made to feed them. Mr Williams' diary would suggest that this inspection had occurred on 2 August at Moree. 38 In the meantime, on 4 July, a letter was sent by Mr Hetherington to Mr King, the Director of Veterinary Services at Newcastle, advising that approximately 3749 sheep had been transferred to the TSR west of Moree at Whitakers Lagoon without notice, and without clearance from the Glen Innes Board, as a consequence of which they had been detained. It was noted that the sheep had been inspected on 28 June and that they would be reinspected in approximately 2 weeks. 39 A stock movement order (3401) was issued by Mr Smith on 12 July 1991, to permit movement of the "Abbotsford" sheep to "Glen Athol" between 15 and 19 July 1991 to permit the shearing and dipping which he required. The order specified that the sheep with 3 months or more wool were to be shorn, and that all sheep were to be dipped by 4 August 1991, subject to the weather, and the condition of the sheep meaning that they were not at risk. 40 Mr Perrett said that these sheep had not needed to be shorn, but some other woolly sheep, already on "Glen Athol", were shorn and dipped along with them, and then sent to the stock route between 28 and 31 July. The balance were sent on agistment to "Yarrow Lea". Mr Perrett said that he believes that the balance were inspected again by Mr Smith before being sent out to the stock route. Mr Smith agreed that he had done so, at Mr Meehan's request. 41 Mr Perrett also said that towards the end of July, Mr Hetherington, Mr Beatty and Mr Williams carried out a second inspection of the sheep on the stock route, at the Meroe Yards for footrot and cleared them of that problem. Each of Mr Hetherington, Mr Williams, and Mr Beatty confirmed this inspection, which they dated as occurring on 2 August, as disclosing no evidence of footrot. Mr Hetherington added that their role, in relation to each inspection was to look for footrot, and not for lice. It was apparently standard practice for there to be a second inspection where there was a suspicion of footrot. 42 At some point in July or August, Mr Perrett claimed, he received a request for a dozen lambs from Mr Williams, who mentioned his casual weekend work as a butcher. Mr Perrett's refusal of his request, he indicated, was received by Mr Williams with ill grace. Mr Williams denied that any such conversation occurred, and Mr Perrett accepted that he had made no complaint about it. 43 Mrs Perrett said that she joined the mob at the end of July, just before the sheep on Mr Meehan's property arrived. Thereafter she helped with the droving. 44 In a letter dated 12 August, Mr Hetherington advised Mr King that the standard follow up inspection on 2 August had revealed no evidence of footrot. He added that the sheep had put on a "remarkable amount of condition since they [had] been on the TSRs' around Moree", and that, in his opinion, they did "not present a risk to the local sheep" and should "be allowed to use the TSR as normal". 45 Mr Perrett said that during August he left the sheep in the care of Mr McRae, and a lady who seems to have gone by the name "Flo", while he went off droving the cattle that they also had on the TSR. Mrs Perrett agreed with this, saying that she accompanied her husband. 46 The Perretts said that, in September 1991, Mr McRae and "Flo" left the sheep unattended, as a consequence of which they managed to become dispersed over about 15 kms of the stock route, even though they were meant to be kept in one flock. The Perretts left the cattle droving job and returned to the Moree stock route where, over several days, they rounded up the mob and yarded them at "Boorilook". 47 Mr Perrett said that he dismissed Mr McRae and "Flo" on 12 September 1991, and that he was assisted thereafter by Jim Campbell with the droving, having taken him out to "Boorilook" on the morning of 13 September. During the early hours of 13 September, he said, he moved a flock of about 3000 sheep on the stock route into the Meroe Holding Paddock, which was about eight hectares in area, with a drinking trough and windmill. 48 Mr Beatty said that on this date he received a report of unattended sheep straying on Colli routes, and of sheep being locked in a yard on the TSR. He went out to "Boorilook" where he found a large mob of sheep around the public watering hole. Mr Williams' diary would tend to confirm that Mr Perrett was back with the sheep at "Boorilook" by this time. 49 Mr Beatty recorded that Mr Campbell informed him that Mr Perrett was mustering the sheep, and that Mr McRae had been doing it, but had left on Thursday, after an argument with Mr Perrett. He noted that he had eventually found Mr Perrett at Bullarah Hall and had instructed him to get the sheep together by Monday, advising that otherwise they would be impounded. The sheep, he said, were scattered over 15 miles of the route between Brown Creek and "Meroe". According to Mr Beatty, he was informed by Mr Campbell that he understood that he was working for Mr Perrett, and believed the latter to be the owner of 94% of the sheep, with Mr McRae owning 700 head. That version in fact accorded with Mr McRae's evidence, although he said, additionally, that he had paid for the transport costs and expected some of the profits from the venture for his part in acting as drover, as well as some remuneration or expenses while he was on the road. 50 However, Mr Beatty said that when he later asked Mr Perrett who owned the sheep, he had replied "Les McRae. He owes me money so that's why I'm looking after the sheep". He made contemporaneous diary records in relation to these conversations. Mr Perrett said that he met with Mr Beatty, at Mr Clarke's caravan, and described him "waving his hands… and shouting 'muster those sheep up and take the damn things home or there will be no feed left in a fortnight." 51 Mr McRae gave evidence in relation to the difficulties, which he claimed had caused him to walk off the route, and to leave the sheep unattended. In substance he claimed that he had not been recouped for carting the sheep out to the route; that Mr Perrett was not pulling his weight assisting in the droving, having preferred to go off on a more lucrative drive with the cattle; and that he was not being paid for the work he was doing. In his words, he was "sick and tired" of the situation and simply decided to walk off, after letting the sheep out. He denied that he had been dismissed by Mr Perrett, as the latter asserted. He also denied that he had been receiving payment from the Perretts in the sum of $300 per week. 52 It was his account that he had found lice in some young, stray and unshorn Tukidale sheep (a New Zealand breed of sheep used for the production of carpet wool), which had joined the mob a few days earlier. He was unaware of who it was that was running Tukidale sheep in the area and was not asked whether they were pure bred or cross bred, or what it was in their appearance that led him to identify them as Tukidales. He did however claim that some person, who he was unable to identify, arrived to collect them from the mob when the sheep were moved off the stock route. No other witness called by the defence or by the plaintiff made any mention of seeing Tukidale sheep in the flock. Mr McRae said that his observation of there being lice infestation in these sheep was related to the appearance of their wool, which seemed to be rubbed or pulled. 53 He acknowledged reporting the matter to the Moree Board, but denied doing so out of spite, asserting that he had done so, because it was the "right thing to do". Mr Williams agreed that he received a phone call at his home from Mr McRae, informing him that there were some stray sheep in the mob that had lice, and that they had been there for two or three days. Mr Williams' report of 11 October would suggest that this report was made on 20 September. 54 So far as the evidence shows, no action was initiated by the Moree Board District Veterinarian, or by any inspector from that Board, to follow up any owners of Tukidale sheep in the area of the stock route. Nor was any report made of lice infestation found in any such sheep on any nearby property. 55 Mr Perrett said that, on 23 September, when the mob was about five kilometres from "Keytah", he had a visit from Mr Williams, who said that someone had reported that his sheep had lice. As a result he said he was instructed to keep them in the holding paddock overnight. "Keytah", it was established, was part of the Sundown Pastoral Company holding. It was not itself part of, or accessible from, the stock route. 56 It was Mr Perrett's evidence that the mob did not include any stray sheep, let alone any sheep with wool, at this time. 57 On the following morning, Mr Perrett said, Mr Williams arrived with a drover, Ross Clarke. Some 40 or so sheep were inspected by them, he said, before Mr Williams asked Mr Perrett and Mr Meehan who was also present, to go to the back of the mob to hold them up. While they did so, according to Mr Perrett, Mr Williams seized out of the mob a Border-Leister-Merino-cross ewe, with a black patch over its eye, which had been shorn, and which bore the brand of Mr Meehan's flock. It was one of the sheep which had been shorn and dipped in July and had joined the mob on or about 31 July. Mr Williams claimed that he had found some lice on the sheep, although according to Mr Perrett he declined to show them to him. Mr Perrett said that he challenged Mr Williams, suggesting that he would not know what a sheep louse looked like. Mr Williams denied this conversation. 58 Mr Meehan and Mrs Perrett broadly corroborated the account of Mr Perrett in relation to the sheep in which Mr Williams claimed to have found lice, and of the fact that the lice were not shown to them, and that they had not seen any woolly sheep in the mob. 59 Mr Meehan said that after Mr Williams left, he and Mr Perrett inspected the sheep, but found no lice on them. They each confirmed that they had seen sheep with lice in the past and knew the signs to be looked for. 60 It was Mr Williams' evidence, however, that the sheep on which he found the lice was not a shorn sheep of Mr Meehan. Rather, it was one of the half dozen stray half wool, cross bred lambs aged 5 to 8 months, which Mr McRae had informed him had joined the mob and were lousy. These were the only sheep, he said, in the mob that had any wool on them. They had not been seen by him when, on his account, they had carried out the "footrot and lice check at Whittakers Lagoon with the vet". 61 Mr Williams said that he pointed the lice out to Mr Clarke, a drover who happened to be with him that day, and he also claimed to have pointed it out to Mr Perrett. He accepted that he did not mark it with yellow scouradle paint or ruddle. It was his evidence that he recognised sheep lice, which he described as being pale in colour at the infantile stage, and as developing, as an adult, a gold and black colour which he likened to the "Balmain football jumper". Although he had never seen Ked, which was likened to a black tick, he was adamant that what he had seen was a louse in one woolly sheep. He said that he had also inspected some shorn sheep but did not find any lice in them. He was unable to recall whether the lice which he found were young or mature. 62 A statement made in July 1996 was provided by Mr Clarke, and he was called later to give evidence. He disclosed that he had been in the company of Mr Williams for the purpose of finding feed on the stock route for his cattle. He had little experience with sheep and had never seen sheep lice before. On his account Mr Williams caught about 3 sheep whose wool looked "rubbed". At one stage, he said, Mr Williams showed him what he claimed to be a louse on a long wool sheep. His description of the object shown to him was "something that looks like a small tick, blue white in colour", and that was moving. He had no recollection of Mr Williams specifically pointing out the object to Mr Perrett, although he said, at the trial, that he, Williams, and the other man there, were both looking at the sheep when it was let go. Mr Perrett said that Mr Clarke was back at Mr Williams' utility when Mr Williams claimed to find some lice. He denied that any sheep showed signs of being "rubbed". 63 Mr Perrett said that he asked Mr Williams to arrange for Mr Hetherington, the Moree veterinary officer, who he trusted, to come out and examine the sheep. He said that although he protested about the action, pointing out that the sheep had been dipped, Mr Williams issued a detention order (No 6556), dated 24 September 1991, requiring the mob to be detained at "Wathagal Canal back three kms to be yarded in water yard at night." The document added "Five days given before removal of sheep off route", and provided, as a reason for the order "Light lice infestation". Mr Williams denied that Mr Perrett made any protest or request for Mr Hetherington to inspect the sheep. Rather, he said, Mr Perrett accepted that lice had been found, and agreed that he needed to deal with the problem. 64 When Mr Hetherington did not arrive to inspect the sheep, Mr Perrett phoned the Moree office and was told that he was on holidays. Mr Hetherington confirmed, in his evidence, that he had in fact been on holidays at this time. 65 Mr Perrett said that Mr Williams indicated to him that unless the sheep were gone by 29 September, they would be shot and buried at his expense. He said that he obtained permission from Mr Boland, and from Roly Kilner, whose properties were located near Keytah, to use their facilities to dip the sheep. Mr Boland made it clear that the sheep could not be kept on his property but would have to go straight back onto the route after they were dipped. Mr Kilner, however, said to Mr Perrett, on his account, that he could agist them for the quarantine period on his property. 66 According to Mr Perrett, he pointed out to Mr Williams the dangers of trucking the sheep, which by then were lambing, back to their places of origin, and advised him of the arrangements which he had discussed with Messrs Kilner and Boland. Mr Williams, he said, insisted that the sheep be taken back. Mr Williams denied having any conversation in the terms described in this and the preceding paragraph, or having any knowledge of Mr Perrett's approaches to Messrs Kilner or Boland. It was his evidence that he informed Mr Perrett that he could take the sheep back to the property of origin, take them to an abattoir for slaughter, or dip the sheep and take them to another property where they would need to remain for 6 weeks. 67 The dangers which Mr Perrett said that he had in mind were those associated with the crushing of the lambs in the trucks, with the likelihood of mismothering, that is, the inability to reunite any lambs surviving the trip with their mothers, and the development of mastitis in lactating ewes when they lost their lambs. He said that he also made mention of the possibility of grass tetany due to magnesium deficiency, if the sheep were locked up for any time. 68 These complaints, Mr Perrett said, effectively fell on deaf ears, as a consequence of which he made arrangements to have the sheep, which by that time also included approximately 3000 lambs, trucked out on 30 September, at a cost of $9,838. 69 By 29 September, he said, the sheep, having been contained for several days in a small area, without feed, were hungry, and he had to hire and erect some fencing, a portable yard, and a loading ramp, in order to carry out the necessary move. Mrs Perrett explained that attempts were made to draft the dry ewes, rams and wethers off the ewes and lambs, and also off Mr McRae's sheep, although without success, due to the limitations of the makeshift facilities. 70 On Wednesday 30 September, and on Thursday 1 October, the sheep were moved from the holding paddock. Messrs Hovenden and Williams from the Moree Board, said that they were present on 30 September. There was some uncertainty, or possibly a difference, as to the precise location where the sheep were held, Mr Perrett variously indicating, that they were held and taken from Keytah, or the Wathega watering point, or Telleregeh. 71 Mr Williams said, as his diary recorded, that the sheep were held, at this time, at the 26 Mile on the Colly Road. In view of Mr Perrett's incorrect identification of the various locations on the maps that were tendered, and Mr Williams' greater familiarity with the Moree TSR, and the contemporary documentation, I am satisfied that his evidence should be preferred in this respect. 72 Mr Beatty indicated to Mr Perrett, according to him, that he had to get permission from Mr Smith at Glen Innes, for the sheep to be allowed back into the Glen Innes Board area, but that they had not been able to contact him. According to him, Mr Beatty instructed the drivers to take their trucks into Moree to wait for further instructions. There they waited, he said, with the sheep on board, in the hot sun, until about 1.00 pm, when they were allowed to leave for Glen Innes. Other trucks arrived at Keytah during the remainder of the afternoon and on the following day, to move the remaining sheep. 73 Mr Smith said that he received a telephone call from Mr Beatty on 30 September, advising that lice had been found in the plaintiffs' sheep on the stock route. A fax was sent to Mr Smith from Mr Hovenden at 2.50 pm that day, advising that the dry sheep were being taken to "Nassau" and that the ewes and lambs would be trucked in the morning to "Rosemeadow". 74 A stock movement order (No 03092) was issued on 30 September 1991 under Mr Hovenden's signature, in which reference was made to the presence of "lice infestation", and to the requirements that the stock were to be moved "to the owner's properties to be sold if possible", that the inspector at Glen Innes was to be advised on arrival, and that the stock were not to be allowed to stray from the properties mentioned, or to be moved without the written permission of an inspector. 75 A letter was also given to Mr Perrett that day, signed by Mr Hovenden, warning him of the animal welfare implications of locking large numbers of sheep in small paddocks over an extended period of time, and pointing out that the responsibility for their welfare was his. 76 The stock movement order required that 1000 lambs, and 1000 ewes and lambs, be returned to "Rosemeadow", and that 1600 dry sheep be taken to "Nassau". Mr Hovenden, the Senior Ranger and Supervisor of Mr Williams at the time, said that he did not himself inspect the sheep, but relied upon Mr Williams' advice. On the same day he also issued a stock movement order (03093) to Mr McRae to move 700 of his mixed sheep back to his property at "Beachwood-Elor", in similar terms. In each case, he said, the numbers were obtained from Mr Perrett and Mr McRae at the 26 mile PWP. 77 Mr Hovenden said that he had no association with Mr Perrett prior to these events, had never spoken to his wife and had little contact with Mr Perrett other than in relation to the stock movement orders and in relation to an attempt which had been made, at one stage, to recover travelling charges from him for the subject sheep. Mr Perrett contradicted this account in one of his affidavits, suggesting that Mr Hovenden had "often called in to see how things were going", and had delivered a final clearance to him after an inspection at the Meroe Reserve on 2 August. In this same affidavit he asserted that his sheep were inspected "following a meeting in the Board office with Mr McRae when he asked them to quarantine the sheep to get even with me". He also claimed that all fees due to the Moree Board were paid punctually, and that he was in fact in credit.

78 Mr Hovenden's contemporaneous diary extracts in relation to these sheep contain the following entries: " WEDNESDAY 3.7.91 McRae - sheep at Whitakers. FRIDAY 5.7.91 Jack Smith - Ross Alford Agent, Grafton 50/50 Perrett - McRae Perrett bankrupt MONDAY 8.7.91 McRae Sheep at Wathagar. TUESDAY 9.7.91 Went to Wathaga PWP twice to see Les McRae to get his cheque. He did not have it. - He will paid (sic) account at the office Thursday -If not paid I told him I would have to cancel the permits.

MONDAY 2.9.91 Saw Perrit (sic) at Boorilook McRae at Bullarah. FRIDAY 13.9.91 Mick Beatty was at Bullarah to get McRae sheep mustered. MONDAY 30.9.91 OFM for Les Perrett - 2 trips to 26 mile - OFM for Les McRae had to ring Armidale and Ebor." 79 It would appear (from a letter dated 11 October 1991, sent by Mr Williams to the Director of Veterinary Services at Newcastle) that it was Mr McRae who had in fact first reported the presence of lice in the mob, that having occurred on 20 September. This letter noted that there had been a " small disagreement " between the drovers, and that the reporting of the lice " was one way of getting Mr Perrett back, Mr McRae stated ". It also recorded: "The mob of sheep were inspected for lice on the 23rd September 1991, I caught 7 to 8 sheep belonging to both men, no lice found on any of these sheep. I then caught a woolly lamb which stood out in the mob, there were 6 to 8 others in the mob. Mr Perrett said he had seen the sheep 2 to 3 days previous. Mr Ross Clarke a cattle drover was travelling with me on that day, Mr Clarke was there when I demonstrated to Mr Perrett the lice found on the lamb I caught. 1st opening on the lamb, 2 lice found. 2nd opening, 1 lice found. 3rd opening, 2 more lice were found. 4th opening, no lice were seen. 5th opening, no lice were seen. I then gave Mr Perrett a Detention Order and told him he was to remove the mob of inspected sheep from the T.S.R. back to the property of origin, or direct for slaughter within seven days. Mr Perrett said he would make a couple of phone calls that night to Guyra and Kilkoy Abattoirs. I called in on Mr Perrett on the 27th August (sic) 1991, to see how things were going, he said he couldn't get any one to buy the sheep, the next step was to go back to his property 'Nassau' Glen Innes." 80 Mr Perrett acknowledged that there had been disagreement with Mr McRae, because he had complained about Mr McRae's sheepdog biting the flock, and because he had asked him to wait to remove his sheep until they could get to some yards to draft them off. 81 Mr Perrett accepted that he had been in a very difficult situation after the detention and Notice to remove the sheep, in that he was unable to sell the ewes with young lambs to the abattoirs, he could not safely dip the young lambs, and trucking the sheep was bound to cause deaths. The best solution, he said, would have been to agist them nearby and to dip them when it was safe to do so. However, he said, he had no choice other than to truck them back, in view of the requirement that the sheep be taken from the stock route, and in view of the refusal for them to be taken to Mr Kilner's property. Mr Meehan similarly confirmed that newborn lambs could not be safely dipped. 82 It was Mr Perrett's evidence that, as a result of the detention of the ewes and lambs in a paddock which he suggested was only about an acre in size, and the refusal of permission to move them to the property of Mr Kilner, there were very many deaths. He placed the number of dead sheep at Keytah at 200 ewes and 2000 lambs. Mrs Perrett described the scene as being "like a massacre, because the holding yards were full of dead lambs and some dead sheep". They each said that they simply left the dead sheep and lambs where they lay. They did not formally report any of these losses, nor, according to Mr Perrett, was there any conversation with Messrs Beatty, Hovenden or Williams in relation to the large number of dead animals which were there for them to see. Mr Perrett acknowledged that the drovers were responsible for disposing of dead stock. 83 There was some corroboration from Mr Meehan who had gone out to assist with the return of the sheep, and from Tim Newberry who drove one of the trucks which were used to take them back, as to the presence of a large number of dead lambs in the area where the sheep were loaded. Neither made a count, but each suggested that there were in excess of 200 dead lambs in the paddock. In the case of Mr Meehan, he said that he went out to the holding yards on about 30 September to collect and take his own sheep back to "Nassau". He said that while he was at the yards, he saw that there were many ewes lambing. He added that there were "heaps of lambs dead and dying there because they were mismothered." He said that when he went back for a second time, on about 1 October, to take the remaining sheep and lambs to "Rosemeadow", he saw hundreds of dead lambs which were just left there. He did not see any dead ewes or mature sheep, and he estimated the size of the holding paddock to be about 10 acres. 84 However, each of Mr Williams and Mr Hovenden denied seeing any dead sheep or lambs in this area, or receiving complaints of the kind which would have inevitably been made by adjoining landowners, or by passing drovers, had dead sheep been abandoned in any numbers on the stock route, without their carcases being burned or buried. 85 Mr Williams said, at the trial, that he had gone back to this area on a number of subsequent occasions because there were at least 3 mobs of cattle on the route at the time. On none of those later occasions did he see any dead lambs. He also noted that it would have been a significant event to find such a situation because it would have been a breach of the Rural Lands Protection Act to leave carcasses there. Mr Hovenden gave evidence to similar effect, confirming that dead sheep were not seen in the area where the sheep were held, either at this time or on the follow up check for strays. 86 Mr Beatty also said that he had not seen any dead lambs on the stock route in the relevant area during the period September to November 1991, even though he travelled along it every 10 days, nor had he received any reports from drovers, or reserve staff, of any dead sheep. 87 Mr Clarke, who had been following the Perretts' mob, with his cattle, some 20 kms or so behind, said that when he reached the Keytah area, within the following fortnight, that he did not see any dead sheep or ewes, or any evidence thereof, in this area. 88 Similarly, Mr Joiner from Sundown, who regularly drove past the relevant areas, said that in 1991 there never were 2000 dead lambs either in the Wathega yards or in the vicinity of the 26 mile water point, indicating that such a finding would have had "enormous repercussions". 89 Mr Perrett said that a further 500 lambs and some 300 ewes died during or as a direct result of their forced trucking back to Glen Innes, the lambs, through being crushed or because they were rejected on their return, and the ewes, because of mastitis. He estimated the value of cross breed lambs, at the time, at $50 each, of merino ewes at $30 for a live sheep and $28 for a fleece, and of crossbred sheep at $50 and $14.40 for its fleece, in each case for sheep in good condition. It was his account that the sheep had come off good pasture on the TSR and that they were in "good condition". 90 Mr Smith denied seeing dead sheep on "Nassau" or "Rosemeadow" in these numbers on their return. While there may have been one or two dead sheep, he indicated that he would have "died of shock" had he seen such a sight and would, for health reasons, have insisted on their immediate removal by being burned or buried. 91 Mr Newberry corroborated Mr Perrett's evidence in relation to seeing dead lambs and dead sheep at "Rosemeadow" that had come off the trucks, and lambs running around looking for their mothers. Mrs Perrett similarly said that she saw a pile of dead ewes and lambs piled up against a tree outside the front gate to "Rosemeadow". Mr Meehan, however, recalled seeing only an odd dead lamb, observing that in the main the ewes and lambs had mothered up and were pretty safe at that stage. 92 On the Perretts' return to "Rosemeadow" they said that they found that the property, which had a suburban holding (Crown Land) title, had been locked up by the National Australia Bank, by reason of the monies due to it. Thereafter they moved to "Nassau" which had a small, one bedroom cottage on it. 93 Mr Tim Newberry confirmed that his father, Lancelot Newberry who is now deceased, gave permission to Mr Perrett to use the facilities on "Square Range" for treating the sheep. He did not place a date on this conversation, although the statement from his father would tend to suggest that it occurred about a week after the Perretts came off the stock route. In that statement Mr Newberry senior confirmed, as did his son, in his sworn statement, that the sheep which were taken off the stock route were "in good condition" (Mr Newberry senior), or in "prime condition" (Tim Newberry). 94 Mr Perrett said that he requested permission from Mr Montgomery to move the sheep to "Glen Athol" for treatment after their return from Moree. Mr Montgomery had no recollection of any such request. He acknowledged that there was going to be a problem since "Nassau" and "Rosemeadow" did not have the facilities needed although "Abbotsford" did. 95 It may be noted that Mr Newberry senior said, in his affidavit, that Mr Smith had been unable, during 1991, to detect lice in an obviously lousy sheep on his property "Square Range", but then, having quarantined them at his own suggestion, later released them after they had been shorn and dipped, without any further inspection. Mr Smith, however, denied this version of events, saying that Mr Newberry had contacted him indicating that he thought his sheep were lice infested. On visiting his property, he said that he immediately found lice in some sheep, whereupon he had Mr Newberry sign a quarantine undertaking, which he later released following a reinspection. 96 Mr Tim Newberry who had experience as a sheep farmer, wool classer and shearer, also said in his statement that he inspected the sheep with Mr Perrett, at the Keytah holding yards for lice, but found none. He said that he and Mr Perrett made a further inspection on 6 October 1991, of sheep on "Rosemeadow" and "Nassau", but again they found no signs of lice. 97 It was Mr Hetherington's evidence that once lice are found in a mob of sheep on public grounds, that is, a TSR, they all have to be removed, there being no discretionary power in this regard. As a matter of practice, however, he said the drover is given a short time to consider the available options including their return to the property of origin, their sale for slaughter, or their dipping and retention on private land for 6 weeks before clearance, at a further inspection, to return on to public ground. His evidence in this respect reflects the industry practice at the time, as noted in the publications later mentioned. 98 On 30 September, Mr Smith sent a report to Mr Hetherington at Moree, marked to the attention of Mr Beatty in the following terms: "R e: your phone message of 10 am on 30th September to the fact that you have found lice infested sheep among L J Perrett's sheep on your travelling stock reserves. You have been informed by the owner that they intend to return these sheep to the property of origin from where they were consigned to "Abbottsford" Red Range. The property consists of 111 ha with 648 carrying capacity units. When Mr Perrett consigned these sheep some months ago from "Abbottsford" to your TSR they had to be dipped due to lice infestation. The RSPCA officer, Rosemary Harmer inspected "Abbottsford". Public streets and roads run around 3 sides of this property and are practically non-existent, some places only one wire. Many complaints were made by local landholders because Perretts diseased sheep were straying along the roads and streets in the Red Range area. To return 4000 sheep to this property would be disastrous in the extreme drought that is presently current. Mr Perrett's other properties in the district are "Nassau" 126.2 ha, 535 carrying capacity units, and "Rosemeadow", 41.38 ha C/C of 508 units. When Mr Perrett moved his sheep to Moree, "Nassau and Rosemeadow" were left stocked. As the Ranger in charge of the Glenn Innes Rural Lands Protection Board Travelling Stock Routes. I have great difficulty in satisfying the need of our ratepayers for grass on Travelling Stock Reserves and Roads to allow their stock to exist, especially cattle, without bringing 4000 diseased stock back into our Board's area. SUMMARY : 1. The Perretts' property "Abbottsford" has not adequate boundary fences. 2. Joe Perrett has a history of not conforming with the requirements of the Act. 3. We do not want Mr Perrett's diseased stock to be brought back into our Board. 4. If all else fails and you issue Mr Perrett with an Order for Movement returning to Glen Innes, endorse on order that all stock must be confined securely within the boundaries of his property. 4A. That the stock returning from Moree are diseased (lice infested). 5. Also endorse on the Order for movement that if this is not complied with he renders himself liable to prosecution for straying diseased stock. I have discussed the above problem with Acting Regional Director of Veterinary Services, Stuart King. It would be more practical to dispose of Mr Perrett's sheep direct to an abattoirs from Moree TSR's. " 99 It is clear that Mr Smith did not welcome at all, the return of the sheep to the Glen Innes Board area, although, as he acknowledged, he could not prevent the sheep from being returned to their property of origin. It is also clear that he did not have a high regard for Mr Perrett's management of his properties, or much confidence as to his compliance with the requirements which attached by law to those who run sheep. In his cross examination at the trial, Mr Smith explained his reluctance in relation to the return of the sheep: " I preferred not to have them at that stage. We were in drought. In the winter time, in Glen Innis (sic) being the summer rainfall, lot of graziers desperate for feed and get grazing permits on the stock route in the winter. The stock route was bare at that time and I'd preferred he'd not to come back because he mentioned he was wanting to go on the stock route when the sheep were cleared of lice. If he had of done neither his sheep or existing people on the stock route would have existed, they would have died." 100 On 1 October, an instruction was issued under the name of Mr Montgomery, directed to Mr Smith, requiring that a close watch be kept on the sheep moved to "Nassau" and "Rosemeadow" from the stock route, that Mr Perrett be reminded of his obligations under the stock movement order, (no straying and no further movement without written permission), that there be verification, if possible, that the lice infestation was only light, and that there be an awareness of any developing welfare problems as a result of starvation. The instruction also noted that the situation should be documented or recorded from day to day. 101 It was Mr Montgomery's evidence that they were dealing with the problem of a large number of lice infested sheep being returned to properties in the region at a time of drought, increasingly cold weather and insufficient feed supplies. 102 Mr Perrett asserted that the weather at this time of the year was the most favourable for shearing and dipping, and that there was sufficient feed available on the properties, particularly because they had been spelled of sheep for some time while they were out at Moree. He suggested that they had returned to Glen Innes in fat condition, and that the feed on "Abbotsford" which he described as "magnificent" included 31 acres of oats which had been sown on 11 May. Mrs Perrett also said that they came back in "prime condition". It was Mr Smith's assessment, however, that they were in "store or lower store condition" when they came back to Glen Innes, and that they deteriorated thereafter, particularly the lambs. 103 On his case, these sheep could have been shorn and dipped at "Abbotsford", or on "Glen Athol", or on the Newberry's property, and then returned to "Rosemeadow" and "Nassau", or to further agistment, before being returned to the stock route, rather than being kept in quarantine for a further 14 months or so, during which time most of them were killed or rendered valueless by the actions which were later taken. 104 According to Mr Perrett Mr McRae took his 250 head of sheep directly home to Armidale from the TSR. His sheep, he said, were in good condition and he received $12 for the lambs, $6 for the rams and $4 for the ewes, whereby, on 3 October, he sold them through the Armidale saleyards. These sheep, and his property "Beechwood", were not placed under quarantine, even though the sheep had been included in the mob on the Moree TSR for approximately 4 months. A stock movement order (03093) was issued by Mr Hovenden in relation to these sheep, which were described as 700 mixed sheep. The order did however include requirements that they be "moved to owner's property to be sold if possible", and that the Armidale Board be advised of their arrival. 105 Mr McRae said that he had 700 sheep in the mob but only took back about 300 of them. The balance, he said, were taken back with the plaintiffs' sheep. He did not support Mr Perrett's claim that some 2000 dead lambs and 200 dead ewes were left behind. Mr Perrett denied keeping 300 of Mr McRae's sheep, claiming that the only suggestion which he made to this effect was a claim that he was missing two ewes with lambs. Mr McRae's sheep, he said, were very different from his, being South Hampshire rams and Merino weaner wethers.

106 Mr Williams also provided diary entries relating to the various events of relevance, between 26 June 1991 and 15 October 1991, which were broadly consistent with his evidence. He said, in his affidavit: " At no time did I feel or hold or display any bias or malice against Mr Perrett on any matter associated with them in the carrying out of my duties with the Moree Rural Lands Protection Board. I always acted on the facts and evidence before me at that time and not on what may have or not have been. I did not have any discretionary power to act in any way other than I have stated. I always attempted to carry out my duties in a professional and appropriate manner taking into account the legislative requirements and the subjective circumstances faced by the Perretts." 107 Once the sheep were loaded on trucks for their return to Glen Innes, his involvement in the case effectively ceased. Mr Hovenden similarly had no further involvement with them, the relevant subsequent dealings being confined to Messrs Smith and Montgomery. 108 It was Mr Perrett's evidence that he believed that Mr Williams had been out to get him, and that this was a view which he had reached at the time of the footrot inspection. He did not hold any such view in relation to Mr Hovenden, who he expected would have dealt with him fairly and honestly. He agreed that he had made no complaint to him about Mr Williams. He also agreed that he made no request of him to be allowed to leave the sheep on agistment at Moree, and made no mention to him in relation to the conversation which he said he had with Messrs Kilner and Boland.

(b) 2 October 1991 to Mid March 1992 - Management at "Nassau" and "Rosemeadow" 109 On 2 October, a report was received at the Glen Innes Board from a drover, Mr Cooke, to the effect that there were sheep, which appeared to belong to the plaintiffs, wandering unattended up and down the Pinkett Road. 110 On 3 October, Mr Smith, and a labourer, Mr Davidson, drove out to "Nassau" and reported observing 200-300 ewes moving along the road. They went onto that property, where they spoke to Mr Perrett. They returned together in the Board utility to where the sheep had been seen, observing on the way, 500 to 600 ewes and lambs strung out over 8 kilometres or so. Mr Perrett accepted that they were his sheep, and suggested that they had escaped from "Rosemeadow", as a result of someone leaving the gate open. Mr Perrett suggested that there was a large pile of dead sheep and lambs on a contour bank at "Nassau", where the sheep had been unloaded, and also at "Rosemeadow", which Mr Smith saw at the time of this visit. Mr Smith denied seeing other than a few dead lambs. 111 Mr Smith conducted a formal interview with Mr Perrett at "Rosemeadow", which was documented, concerning possible breaches of the Moree Stock Movement order (03092) in the course of which Mr Perrett agreed that he would get the sheep off the road within 4 hours. He stated to Mr Smith that he had bought 1000 ewes with lambs back to "Rosemeadow", and 3000 sheep to "Nassau". When asked what he proposed to do with them, Mr Smith recorded him saying that he intended to sell them, to Kilcoy, (Queensland) if he could take them across the border. Mr Smith made the following recommendations in a report which followed this attendance: " 1. Mr Perrett be formally advised as to his responsibilities and obligations under the Stock Diseases Act and Regulations regarding straying stock. 2. Mr Perrett be advised to take all reasonable effective actions to ensure his sheep do not stray from any of his properties making all his boundary fences of a high sheep proof condition and chain and lock all external gates. 3. Should his sheep in the future be found to be straying outside the boundaries of his properties, he renders himself liable for immediate prosecution to the maximum of $10,000. 4. We will stretch a point and ask for special permission from QLD to have his sheep allowed to be consigned to a QLD Abattoir, subject to the Director of Veterinary Services Queensland's approval. If Mr Perrett makes all arrangements to sell his sheep in the next week or so. To make his properties a more viable stock carrying proposition. 5. Immediate action should be taken to inform Mr Perrett of the above. " 112 At this time, Mr Perrett agreed, "Rosemeadow" and "Nassau" were both in severe drought, and that there was no paddock feed available. He complained that, in this respect, Mr Hovenden had earlier misled him when, in response to his question concerning the conditions at Glen Innes, before moving the sheep back, he had said, "they were good out there", and that he would be "all right". Mr Hovenden denied having any such conversation with Mr Perrett. 113 Mr Perrett said that between about 4 October and 7 October he asked Mr Montgomery, on several occasions, to inspect the sheep for lice, but said that these requests were refused, even though he explained that he believed his sheep to be free of lice, and pointed out that the Bank was "breathing down his neck". 114 On 4 October, he said, Mr Montgomery refused to inspect the sheep, observing "… I cannot undo what they did at Moree." Mr Montgomery had no recollection of being asked to reinspect sheep that had already been inspected. 115 On 5 October, Mr Montgomery gave Mrs Perrett, at "Nassau", two letters, the first of which contained a caution as to the need to ensure that the stock did not stray, and in this regard pointing out their obligations to make the boundary fences "of a high sheep proof condition", and to chain and lock all external gates. The consequences of a prosecution under the Stock Diseases Act were mentioned. The letter continued: "W ith much persuasion and a great deal of effort by inspectors in the Glenn Innes R.L.P.B. the NSW Department of Agriculture, official permission has been obtained to enable movement to take place. (Please apply to J. Montgomery (067)322378 before Tuesday 8-10-91 or after that date to J. Smith, Ranger or the Glen Innes RLPB office about the special conditions which must apply)." 116 The second letter constituted a warning in relation to the provisions of the Prevention of Cruelty to Animals Act, in the event of the plaintiffs failing to provide the stock with adequate grazing, supplementary feed and access to water. The letter also recorded the concerns of Messrs Smith and Montgomery "over the effects of inadequate feed being available to the sheep on (the) properties". This letter concluded: " Clearly arrangements should be made quickly to have the sheep sent for slaughter. If you see a problem developing with sheep losses please contact J Montgomery … J Smith … or Glen Innes RLPB office). " 117 By way of a footnote, Mr Montgomery recorded: " No stray stock anywhere along the route on Saturday at visit and in consequence no interview with intent to prosecute. " 118 Following the 2 October conversation, Mr Montgomery said that he made some inquiries of potential purchasers for the plaintiffs' sheep, including Kilcoy, Guyra Meat Packing Co, and Wallangara Meat Exports. 119 On 8 October, Mr Smith sent a report to the District Veterinarian at Glen Innes advising that his enquiries had revealed that Mr Perrett had not contacted Kilkoy Abattoirs, or its buyer Mr Campbell, but also noting that Mr Campbell had indicated to Mr Meehan that he would buy only if the sheep were declared lice free, in which case he would only be interested in a portion of the top crossbred lambs. Some possible alternative buyers, who had been contacted, were identified, namely Guyra Meat Packing, Wallangarra Meat Exports Queensland and Associated Buyers Brisbane. 120 A letter advising of these possible contact buyers was sent to Mr Perrett that day. Mr Perrett said that these sheep were breeding stock with young lambs and were not suitable for slaughter. He also said that Mr Smith had acted without his authority in speaking to buyers. 121 On 11 October 1991, Mr Williams formally reported to Mr King the Director of Veterinary Services at Newcastle his finding of lice in a woolly lamb which had stood out from the rest of Mr Perrett's mob, when inspected on the Moree TSR. 122 On 14 October, Mr Smith sent a letter to the District Veterinarian, noting that the carrying rating of "Nassau" was 535 dry sheep equivalent (DSE) and that of "Rosemeadow" was 508 DSE. The report went on to note that the extra 4000 sheep would have been on the properties for a minimum of 12 days, in addition to any other sheep that had been pastured there; that it seemed very little attempt had been made to sell the sheep, despite personal representations to Guyra Meat Packing Company; and that the buyer for that company had been trying unsuccessfully to contact Mr Perrett. Mr Smith recommended that, by reason of the 400 per cent overstocking, and inability to move the sheep onto public land, for the welfare of the stock: " (a) Mr Perrett should be informed that within 7 days if he has not reduced his sheep numbers by 3500, taking into account the overstocking, and drought situation, and for the welfare of the sheep, the Chief of the Division of Animal Health will be requested for authority in the form of an Order to muster the properties and dispose of the stock. (b) Legal action may also be considered. "

123 The report was endorsed by Mr Montgomery to the effect: "Decided instead to hand the case over to the RSPCA directly", and that it was expected that urgent action was required. 124 Mr Perrett said that, at about this time, Mr Smith informed him personally that he had to reduce sheep numbers by 3500, because he was overstocked and because there was a drought, otherwise legal action would be taken or they would be destroyed. He said that he asked for permission to take the sheep to "Abbotsford" to shear and dip them there, because he lacked the necessary facilities at "Nassau" and "Rosemeadow", but said that this request was refused by Mr Smith, who mentioned that there were Abattoirs, to whom they had spoken, that would buy them, naming those possible buyers. Mr Perrett said that he protested, indicating that he would get nothing for the sheep while they were under quarantine, the difference, he suggested, being $7 per head as against $30-$50 per head. Mr Smith denied that there was a conversation in these terms. He did acknowledge, however, mentioning possible buyers to Mr Perrett. He said that to sell his sheep freely, Mr Perrett had only to shear and dip them. Otherwise, if untreated, he could sell them to abattoirs. 125 On 17 October Mr Montgomery arrived at "Nassau" with Rosemary Harmer of the RSPCA to inspect the sheep. According to the Perretts they were in "fat" or "fine" condition. Ms Harmer noted, however, that there were too many sheep on the property, and Mr Montgomery could not recall them being in fat condition. Mr Perrett added that he again made a request of Mr Montgomery to check the sheep for lice, but he refused to do so. Each of the plaintiffs said that Miss Harmer asked Mr Montgomery why he would not inspect the sheep. Mr Montgomery could not recall any such conversation, but conceded that he could have raised the possibility of Gordon Campbell of Kilcoy buying some of the sheep, as Mr Perrett said occurred on this occasion. 126 At some stage, during this month, there being a deal of uncertainty or inconsistency as to the sequence of events, Mr Perrett said that Mr Montgomery did call out at "Nassau", and indicated that he would inspect the sheep if they were yarded. According to Mr Perrett, some 40 sheep were examined without any lice being found. When he asked for a clearance certificate, Mr Montgomery replied, on his account, that he could not issue one. 127 However, a report prepared later, which was signed on behalf of Mr Montgomery (dated 6 November 1991) but which, on his account, was composed by Mr Smith, confirmed the finding of a "light lice infestation" on an inspection of sheep at "Nassau", dated, in this document, as having occurred on 17 October 1991. In his evidence he questioned this date, notwithstanding the date of the report, suggesting that in fact it was on 19 November, 1991 that he found lice on the sheep, that being a date coinciding with an article which he had caused to be published in the Glen Innes Examiner of that date. 128 He accepted that his diary for each of these days contained no mention of him attending at "Nassau", or of finding lice on either occasion, the relevant entries for 19 November in fact suggesting that he had spent the day at the office in Inverell. He explained this on the basis that his diary was written up after the event and was not always accurate, and upon the further basis that office entries also embraced visits to properties in the area. 129 Mr Perrett said that, at some time during this month (he suggested 17 October), he pointed out to Mr Montgomery that he was being pressed by the Bank, and was relying on the sheep to pay them out. He said that he asked for permission to take the sheep to "Abbotsford", where he had facilities to handle them, pointing out that they were in need of crutching, because of the risk of fly strike. According to him, Mr Montgomery said that he could have permission to take the fly blown sheep to "Abbotsford" by truck. Mr Montgomery did not recall this conversation. 130 A report from Mr Smith, of 22 October, suggests that he called at "Nassau" on 18 October, and informed Mrs Perrett that the District Veterinarian had advised that special permission to move the sheep on hoof from "Nassau" and "Rosemeadow" to "Abbotsford" could possibly be obtained from the Regional Director, but that all boundary fences at "Abbotsford" would first have to be made stock proof. He advised that he had informed her that when the fences had been made "completely and securely sheep stock proof", he and Mr Montgomery would inspect them to establish compliance, whereafter Mr Montgomery would consider issuing an order for movement. The recommended movement conditions, which he noted in this letter, would be as follows:- "1. 24 hours prior to movement, all neighbours on both sides of the road, would be notified of movement from property of origin to Abbottsford. 2. Starting time of each journey must before 7 am and completed by 6 pm. 3. Competent drovers must be in front of and behind the stock and the stock must be confined between these two drovers at no more than 1 km apart. 4. Stock must not be moved in dribs and drabs. 5. All stock from Rosemeadow to Abbottsford that you desire to move, must be moved in one movement only. 6. All stock from 'Nassau' to 'Abbottsford' that you desire to move must be moved in one movement. 7. Stock from Rosemeadow and Nassau unless you desire to move them on the same day to Abbottsford must have separate Order for movements and separate notification to those neighbours between those properties and Abbotsford." 131 A copy of this letter, Mr Montgomery said, was sent to Mr Perrett, it being a "key requirement" for any move of the sheep to "Abbotsford", that there be a repair and upgrading of the perimeter fencing to prevent "lice affected sheep straying." 132 Mr Perrett said that, following his discussions with Mr Montgomery, sheep requiring attention were progressively moved from "Nassau" and "Rosemeadow" to "Abbotsford" by Messrs Meehan, Newberry, Barnes, Kingsley and by himself. On each occasion of an anticipated removal, he said that he phoned Mr Montgomery for permission. It seems that in some instances, stock were moved without any written order. One such written order, 02730, was however identified as having been issued by Mr Montgomery for the movement of 450 sheep between 16 and 17 November, 1991. 133 On Mr Perrett's estimate, some 600 merinos and 400 crossbreds suffered from flystrike during the quarantine period, which could not be effectively treated because of the quarantine restrictions, leading to a loss of $28 and $14.40 per fleece for the merinos and crossbreds respectively. He suggested, however, that transport costs had been occasioned in the order of $6480, which would suggest that more sheep had in fact been moved for treatment, despite the quarantine. 134 Mr Tim Newberry confirmed moving sheep from "Rosemeadow" and "Nassau" to "Abbotsford" between November 1991, and April 1992, and assisting in their treatment for flystrike. He added that he saw a number of sheep that had died from flystrike. He said that when he carted sheep for the plaintiff he frequently checked them for lice, but found no symptoms of any such condition. 135 Mr Meehan said that he, on about 21 October, being tired of the difficulties occasioned by his sheep being quarantined, and because the Perretts were running out of feed, he removed them from "Nassau", taking them back to his property, "Glen Athol". He also collected the smaller number of his sheep that were on "Rosemeadow". Once back on "Glen Athol", he said, as a precaution, he kept all of those sheep separated from the remainder of his flock for some months. He gave evidence to the effect that he did not find any problem with lice in these sheep, or with their progeny, or with the remainder of his flock, when they were eventually amalgamated. He said that "Glen Athol" was not placed under quarantine even though, in the course of a discussion with Mr Smith, within a few days of the movement of his sheep, he informed him of it. 136 This conversation occurred, he said, when he was pulled up by Mr Smith and confronted with an allegation that he had been transporting sheep to "Abbotsford" for Mr Perrett. He said that when he inquired of Mr Smith whether he wanted to inspect his sheep for lice, he declined the offer. He confirmed the experience, which was otherwise accepted to be the case, that if sheep in a mob have lice then it is likely to be passed to the remainder. 137 Mr Smith denied that Mr Meehan disclosed moving his own sheep from "Nassau" to "Glen Athol", suggesting instead that their conversation related only to the investigations which he was making in relation to possible unauthorised movements of stock to "Abbotsford". 138 Mr Perrett suggested that Mr Meehan had taken about 44 of their lambs when he moved his sheep back to "Glen Athol", which he then sold through the Glen Innes sale yards, and for which he was then recouped. Although he did not make any mention of complaining to Mr Montgomery that it had been unfair to keep his sheep detained, but to allow Mr Meehan to move his sheep home and to sell them without dipping them, he claimed, at the trial, to have done so. He also claimed that he made a complaint to Mr Williamson, a Director of the Board. 139 On 22 October 1991, a complaint was made to Mr Smith by Shire Health Inspector Thompson, about the Perretts' sheep being out on the road again, adjacent to "Rosemeadow", which allegation was reported to Mr Montgomery by Mr Smith. 140 In a report of this date he noted that Mr Perrett had made arrangements to sell some cross bred lambs (second grade) to Kilcoy Abattoirs, 350 head to go that day, and a further 570 head to go the next day. The necessary documentation was prepared, including a certificate dated 25 October 1991. 141 Mr Perrett's account was somewhat different as to numbers and dates, it being his statement that there were a total of 837 cross bred lambs and 380 other sheep, for which he received almost nothing, but which had to be sold by reason of the lack of fodder and the earlier demands which had been made to reduce his stock numbers. Mr Perrett said that Kilcoy had made an earlier offer of $30 per head, but then retracted it and offered a very low (unspecified) price. He also said that he had to pay the freight. In a subsequent report, Mr Smith noted the numbers sold as 835 lambs and 343 sheep. He denied making any threat to Mr Perrett to the effect that he had to sell those sheep. At one stage Mr Perrett suggested that Rosemary Harmer's intervention had been responsible for the reduction in the sale price. 142 On 25 October Mr Smith issued certificates permitting 400 sheep to be moved to Queensland for slaughter. 143 On about 29 October, Mr Smith and Mr Montgomery made an inspection of the "Abbotsford" boundary fences, the claimed deficiencies in which they noted in a report of that date, along with the conclusion "considerable repairs and upgrading of the [specified] fences are required before an order can be issued for movement of the stock to Abbotsford". Mr Montgomery said that he photographed the obvious deficiencies in the perimeter fencing, adjacent to the three public roads, on this occasion. Those photographs were tendered in evidence, and do appear to show that the fences were in very poor condition. 144 It appears that a copy of this report was given to Mrs Perrett on 30 October, on which date an order to muster all of the sheep and goats on "Abbotsford" was issued by Mr Smith. The muster was required for 5 November. Mr Perrett said that while he did not agree with the report, he attended to repairing the fences where needed. 145 On 1 November Mr Smith provided a report to Mr Montgomery noting, inter alia, that Kilcoy had taken 1178 sheep between 23 and 27 October 1991. In this report he confirmed that he had informed Mrs Perrett on 30 October that "more work would be required on the boundary fence before an order for movement could be written." 146 In a report of 6 November, which had noted that the finding of a light infestation of lice in sheep on "Nassau" had been confirmed on 17 October 1991, the Director was informed that after the sale to the abattoir, there were 2800 adult sheep remaining, divided between "Nassau" (535DSE) and "Rosemeadow" (508DSE). It noted that "Abbotsford" (648DSE) could provide grazing for the sheep except that the fencing needed upgrading. It went on to state that a follow up inspection that day of "Abbotsford" indicated that no repairs had been made to the fences, and that some 50 head of cattle had just been introduced to the property. Copies of this report were sent to RSPCA Inspector Harmer, and to Mr Smith. 147 In a report dated 14 November, Mr Smith noted that he had called out at "Abbotsford" that morning and made an inspection using binoculars. He indicated that no further work had been done on the boundary fences, and reported that approximately 300 more sheep, ewes and lambs appeared to have been introduced to the property. 148 Mr Smith recommended the issue of muster orders for "Abbotsford", "Nassau" and "Rosemeadow" for 19 November 1991, on which date he proposed interviewing Mr Perrett, in relation to possible unauthorised stock movements. Mr Perrett, in one of his affidavits, suggested that Mr Smith had taken this course because he had not helped him change a punctured tyre. 149 In another report of the same date, Mr Smith gave an account of his inspection that day of "Nassau" and "Rosemeadow". In relation to "Rosemeadow", he said that the feed was extremely short, that the sheep which had returned from Moree were still "in reasonable store condition" but the 2 and 3 month old lambs were "emaciated". He expected that most would perish within a fortnight. 150 "Nassau", he said, appeared to have very few sheep on it, although he would have expected that after the sale and the move of Mr Meehan's sheep, there still should be 2550 head there. 151 Both properties, he said, appeared to have the odd lame sheep which would "make one suspect a possibility of footrot". The proposed muster, he said, should involve an inspection "for footrot" and a count of the sheep on the three properties. He also noted a report from a neighbour as to the trucking of sheep by Mr Meehan on 10 September, without any movement order. 152 On 15 November, a Stock Movement Order, 02730, was issued for the movement of 450 Merino cross bred ewes from "Rosemeadow" to "Nassau" by truck, on 16 November. The issue of this order, Mr Perrett agreed in cross examination, was inconsistent with any notion that Mr Montgomery was treating him unfairly or deliberately trying to cause him harm. 153 The muster orders, in relation to "Nassau", "Rosemeadow" and "Abbotsford", were served by Mr Smith on 18 November, at which time Mr Perrett said that he was informed by Mr Smith that he had received complaints that his sheep had footrot. The orders specified that the musters were required for "examination" without specifying the condition of concern, although as noted, Mr Smith's earlier report had recommended an inspection for footrot. 154 Mr Perrett said that no footrot was found at "Nassau" on the muster, which was carried out by Messrs Smith and Montgomery on 19 November 1991. He added that no inspection was made for lice. At "Rosemeadow", he said, Mr Smith remarked, "If you want these sheep to have footrot, they will and you will have to get rid of them." Thereafter, he said, Mr Smith claimed to have found a ewe with footrot, but Mr Montgomery said that it was an abscess. No scraping was taken for testing. At "Abbotsford", similarly, no footrot or lice were found, according to Mr Perrett. 155 As previously noted, Mr Montgomery said that on 19 November 1991, he found "one live sheep louse" on one animal, after checking 3 or 4 sheep beforehand. He claimed to have pointed out this sheep to Mr Perrett. It was Mr Perrett's assertion that, having been earlier unable to find lice, Mr Montgomery had reverted to a footrot inspection on 19 November. 156 On 27 November, a Certificate of Health was issued to enable a further 400 sheep to be transferred to Kilcoy Abattoirs. 157 On 31 January 1992 Mr Smith issued a report to the effect that he had learned of a trucking of sheep by Tim Newberry from "Rosemeadow" to "Abbotsford" on 23 January. When Mr Newberry was interviewed he confirmed that he had moved 160 Merino ewes this day. It appears that he produced an outdated order (02370) for the November movement, although he indicated that he had been informed that Mr Perrett had a current order. Mr Smith reported the matter as a possible breach of the Stock Diseases Act. 158 In his statement, Mr Perrett said that he had received verbal permission from Mr Montgomery to move the sheep from "Nassau" and "Rosemeadow" to "Abbotsford" for treatment because they were fly blown. After treatment he said Mr Newberry returned the sheep to "Rosemeadow". Mr Perrett added that when he had asked Mr Montgomery to do the paper work, he had been informed that he could come to town to pick it up, as he could not be writing out travel permits every second day. 159 Mrs Perrett confirmed that she was present, on various occasions, when she counted fly strike affected sheep into the yards and received verbal permission from Mr Montgomery to move them, on condition that they had to be brought back within one day. According to her, permission was given in this form because Mr Montgomery did not have any stock movement forms with him. Mr Montgomery denied that he had regularly given permission for stock movements to the Perretts without signing a permit, but conceded that this may have occurred on isolated occasions, when he did not have the necessary forms, and allowed the move and return on trust, because he was aware of the Perretts' situation, and was anxious to help them. However, he said, he would have completed the paperwork later, and would have required the plaintiffs to collect the forms before moving the stock. 160 Mr Montgomery said that he and Mr Smith re-examined the "Abbotsford" perimeter fencing on 4, 11 and 14 February 1992. Mr Smith confirmed these inspections and Mr Montgomery's evidence as to the absence of repairs. 161 Mr Smith's report of 31 January was not followed by a prosecution, but a warning letter was sent by Mr Montgomery to Mr Perrett, on 10 February 1992, about unauthorised stock moments, and the need to keep the sheep securely confined within the boundaries of his properties. 162 Mr Smith said that he had a discussion with Mr Montgomery to the effect that if Mr Perrett claimed to have treated the sheep, then they should be inspected before quarantine was imposed. Otherwise, he pointed out, they were able to act on suspicion. A note to this effect was endorsed on the file copy of the letter to Mr Perrett last mentioned. 163 After receiving this letter Mr Perrett said that he arranged to meet Mr Montgomery at "Nassau" so that he could get some orders to move fly blown sheep. He said that he met Mr Smith and Mr Montgomery, and that the next event which occurred was the receipt of 40 day quarantine notices, dated 11 February 1992 for each of the properties "Abbotsford", "Nassau" and "Rosemeadow". They specified that the sheep on the properties were "suspected" of having "sheep louse". 164 On this day another letter was sent to Mr Perrett, by Mr Montgomery, noting that "over and above clearing up the lice infestation in your sheep, our main concern is that you keep your sheep securely confined within the boundaries of your respective properties…" He was warned of the need to obtain an order from an inspector for any movement of his sheep, and he was asked to contact Mr Montgomery to arrange a meeting. Mr Montgomery said that the notices and letter were issued by reason of illegal stock movements, and the straying of sheep from the properties. 165 The 11 February notices were replaced with further notices issued on 14 February 1992 (B20705, B20708, B20709). So far as Mr Perrett was aware the sheep on the properties were free of lice, and, he said, the notices had not been issued following any inspection after 19 November 1991. 166 Mrs Perrett also said that she knew what lice looked like and how to look for them. She suggested that on several occasions between 1 October 1991 and January 1992, when they moved from "Nassau" to "Abbotsford", she had inspected the sheep for such condition, but had found no evidence of it. 167 On 17 February 1992 Mr Perrett said he met with Mr Montgomery at "Nassau", having asked him for an order to move 56 badly fly blown sheep to "Abbotsford". Mr Montgomery was accompanied by Mr Smith, and according to Mr Perrett, said that he had forgotten to bring out the forms. However, he invited Mr Perrett to sign undertakings in relation to the three properties in lieu of quarantine, under which he would agree not to move or to cause or permit the movement of sheep off the individual properties without the written permission of an inspector, and to treat all of the sheep on those individual properties "to the satisfaction of an Inspector". Mr Perrett complied by signing the notices, even though they were expressed to be of 2 years' duration. Mr Perrett said that sheep were dying in the presence of Mr Montgomery while he was inspecting them in the yards, yet he declined to write out a movement order. 168 Mr Montgomery confirmed that he had been to "Nassau" on 17 February, but had no recollection of the conversation, or of inspecting sheep in the yards while they were dying in front of him. 169 Either during the conversation this day, or at a time proximate thereto, Mr Perrett said that he enquired of Messrs Smith and Montgomery why "Abbotsford" had been quarantined. He said that he was advised that it was because he had moved fly blown sheep there (from "Nassau"). According to him, Mr Smith, at this time, refused his request to move any more sheep to "Abbotsford". Mr Smith denied that the request was refused. It was on this day that Mr Smith said that he found signs of a heavy lice infestation in sheep on "Nassau". 170 A stock movement order was in fact issued by Mr Smith (No. 02933), on 18 February, to move 56 Merino and cross bred sheep from "Nassau" to "Abbotsford", that form recording that they had been inspected on the previous day, and that there was a suspicion as to lice. The form noted that they were to be treated for fly strike. 171 Mr Perrett however said that during February he made repeated requests to Mr Montgomery and Mr Smith for them to inspect the sheep on "Nassau" for lice, but they refused to do so. Mr Montgomery had no recollection of such conversations. 172 On 19 February 1992, Mr Smith prepared a detailed report concerning the saga with these sheep, containing his synopsis of the relevant events between 26 June 1991 and 18 February 1992. Inter alia, it noted the following events: "3. 2nd July 1991 I inspected sheep still on 'Abbottsford' found a heavy infestation of lice sheep on Red Range 'Bobs' street and Kingsgate Road boundary offence not sheep proof. 4. 12th July 1991 Issued an Order for Movement 03401 to move 230 lice infested sheep from 'Abbottsford' to D Meehan's property to be shorn and dipped. 5. 30th September 1991 , Ranger Mike Beatty phoned me lice had been found in Perrett's sheep, on a Moree Travelling Stock Reserve, and they were sending the sheep back to Perretts properties at Glen Innes, Order for Movement 03092 despite my written and vocal objections detention order on 24.9.91 signed by Wayne Williams. … 7. 3rd October 1991 , I found approximately 500 sheep (lice infested sheep returned from Moree). I interviewed Perrett. I made a recommendation to Glen Innes District Veterinarian. … 13. 18th October 1991 , message from Glen Innes District Veterinarian to Severn Shire Clerk that the District Veterinarian had inspected sheep on "Nassau" and that were diseased. … 22. 31st January 1992 , I interviewed a carrier who moved 160 sheep (presumably lice infested, no work having been carried out to eradicate the lice contracted at Moree). From "Rosemeadow" to "Abbottsford" without an Order for Movement or permit. … 26. On Monday morning 17th February 1992 , Mr Perrett contacted the District Veterinarian, and wanted to see him at "Nassau" at 3pm, I accompanied the District Veterinarian to Mr Perretts. " 173 The report continued: " Mr Perret signed the form 6's for "Nassau", "Rosemeadow" & "Abbottsford". He obtained an Order for movement to move by motor transport 56 merino fly blown and lousey sheep, from "Nassau" to "Abbottsford" to be treated on 18th February 1992. Mr Perrett put the suggestion to the District Veterinarian that with an Order for Movement he move all sheep from "Nassau" to "Abbottsford" to shear and dip in "Abbottsford" plunge dip. IN the meantime having shorn and dipped all sheep now on "Abbottsford". After an Inspection by us that "Nassau" is clear of diseased sheep, transport the shorn dipped "Abbottsford" sheep to "Nassau". The District Veterinarian agreed sheep being worked in yards at "Nassau" had the appearance of being heavily infected with lice and upon inspection this proved correct, 35 live lice to 7 openings." 174 Mr Montgomery's recollection was that it was Mr Smith who had made the finding on 17 February which was reported. He accepted, however, that his diary did not record a visit by him to "Nassau" this day, rather it placed him at the Glen Innes office between 8 am and 5 pm. He again explained that this diary was not necessarily an accurate or complete record of his daily movements. 175 This report was followed by a letter from Mr Montgomery to the plaintiffs, on 20 February 1992, in the following terms: " Please note the following: After the boundary fences at 'Abbottsford' are up to standard. 1. Notify this office so that the fences can be checked. 2. Also at that time we would want to examine the plunge dip to see that it is cleaned out ready for use. 3. When the dipping is about to start please notify this office before hand so that an inspector can be present to check that the dipping is being done properly and to the Inspectors satisfaction. 4. The neighbours of your various properties are being advised that you are going ahead to clean up your lice problem and with all the effort going into it they should go about checking their own sheep for lice, and make repairs to boundary fences as necessary." 176 It was Mr Perrett's assertion that the boundary fences on "Abbotsford" consisted of rabbit proof fencing and a ring-lock fence that would contain sheep, and that there was no real difference between the "Abbotsford", "Nassau" and "Rosemeadow" fences. Mr Perrett said that, in response to the 20 February letter, he pulled down an internal fence and used it to reinforce the boundary fence at "Abbotsford", at a cost he estimated of $8724. He then asked Mr Smith to inspect the fences. Mr Perrett suggested that, although not perfect, they met with Mr Smith's approval on 9 March 1992. Mr Smith however said that the fences which were attended to were those adjacent to Bobs Street. The fences which were not repaired, he said, were those on the eastern and western side running to Kingsdale. 177 In the report to Mr Montgomery of 9 March, Mr Smith remained somewhat dismissive of the state of the fencing, noting that repairs by way of a tightly stretched wire on old wood posts and timber placed over fence holes would not take much pressure. He noted the existence of complaints from various neighbours, to whom he had spoken, of "lousy sheep" going onto their properties from the plaintiffs' three properties since 30 September 1991. He referred to the "dismal prospect" of the neighbours of "Nassau" and "Rosemeadow" having their sheep infected from Mr Perrett's "diseased sheep". He suggested that advice should be sought from the Regional Director as to what action should be taken. 178 Mr Montgomery said that he understood the straying of sheep to have been a long standing problem, and to have been the subject of complaints from neighbours. The response which was taken, he said, was for their protection, and not an "impediment", (which, I understand him to mean, a device) to stop the movement of sheep. 179 On 12 March, Mr Smith and Mr Montgomery went to "Abbotsford" to examine the dip and to discuss the arrangements for the movement of the stock from "Nassau" to "Abbotsford" for dipping on 19 March, and for their subsequent return to "Nassau". Mr Perrett suggested that Mr Montgomery specified that the sheep had to be shorn no more than 14 days before dipping, a direction which would have been contrary to the product directions. Mr Montgomery denied giving such an instruction. 180 A Stock Movement Order (02934) was issued on 13 March 1992 to permit the movement of 1446 crossbred sheep from "Nassau" to "Abbotsford". A report was sent by Mr Smith on 13 March, outlining the arrangements made, and conditions for, the necessary stock movements. (c) 19 March 1992 to 3 May 1992 - The First and Second Dips

The First Dip 181 The first dip occurred on 19 March 1992 on "Abbotsford" in the presence, and under the supervision, of Messrs Smith and Montgomery. Chris Shands, the Sheep Advisory Officer from the Department of Agriculture, Glen Innes, and Mr Meehan were also present; as was Mr Iser, the Noxious Animals Inspector from the Inverell Board. The 664 sheep dipped on this occasion, Mr Perrett said, came from the 805 sheep that had been originally on agistment at "Yarrow Lea" and taken to "Nassau". They were returned to "Nassau", but remained under quarantine until 28 April 1992, even though they had been bare shorn and dipped. According to Mr Perrett he was informed by Mr Montgomery that he would only release the sheep for sale through the Glen Innes saleyards. Mr Montgomery denied making such observation, as did Mr Smith, who also explained that the quarantine period would have been for a minimum of 62 days after dipping. Once quarantine was released, he said, the sheep could have been sold anywhere. 182 Mr Shands said, in his affidavit, that he had been present to ensure that the Rural Lands Protection Board officers appropriately and effectively conducted the dipping procedure. He said that he was content that the dipping was being done correctly. He also said that he observed the sheep to be in "poor body condition", and that some had difficulty in climbing out of the dip. He added that there was little or no grass in the paddocks, and, at the trial, he also indicated that the internal fences which he saw seemed to be in fairly poor condition, and not to have been able to hold stock effectively. 183 Mr Montgomery said that, prior to this dipping, he had studied the Coopers Lice Advice Technical Manual and its Lice Advice Video, had consulted with the others on the calculations required to arrive at the correct mixing rate, and had confirmed the internal dimensions of the plunge dip with a tape measure. 184 Mr Smith said, on this occasion, Mr Montgomery had consulted with Mr Perrett and with himself as to the initial mixture and recharging, and that the instructions on the tin were read out. So far as he was concerned, the dipping was carried out "exactly as it should have been" done. 185 Mr Perrett, however, said that Mr Montgomery did not consult with him at all, did not read the directions on the tin, and did not measure the dip pit on this occasion. It was his assertion that Mr Meehan had mixed the dip rather than Mr Montgomery, who he suggested had been unable to read the label on the tin. 186 A stock movement order was issued on 19 March (04731) to return 664 crossbred sheep from "Abbotsford" to "Nassau". 187 On 2 April 1992, a further order (03151) was issued by Mr Montgomery, for the movement of 1100 sheep on 9 April from "Rosemeadow" to "Abbotsford", "under quarantine for lice infestation", to be shorn and dipped. Mr Perrett said that Mr Montgomery refused his request to delay the move, even though he was due to appear in court on the day nominated, advising "you will attend to transporting the sheep from Rosemeadow on that day or else I will commence legal proceedings against you". Mr Montgomery denied that there was any such conversation. 188 A dipping schedule and supplementary instructions to Mr Smith were issued on 3 April, by Mr Montgomery, requiring that neighbours be contacted, that the sheep were to be trucked to "Abbotsford" on 9 April to be shorn, and that they were to be dipped on 13 April under the supervision of an inspector, and then returned by droving to "Rosemeadow". 189 An instruction was given to Mr Smith, on the same day, to inspect the shorn and treated sheep at "Nassau" after 3 weeks, and to release them from quarantine if no lice were found. 190 By 9 April the bank had obtained judgment for possession of "Nassau" and "Abbotsford". The issue of the writs of possession was, however, stayed until 18 June 1992 to allow the plaintiffs an opportunity for sale and refinancing. 191 On 28 April, Mr Montgomery examined the "Nassau" sheep for lice, and cleared them for sale through the Glen Innes sale yards. An order was issued by Mr Montgomery (11291), for the movement of 664 sheep from "Nassau" to the sale yards. A condition was applied that no additional stock be moved to "Nassau" in the interim. 192 Mr Perrett said that these sheep had been intended for breeding rather than for slaughter. On 29 April, 134 ewes and 1 ram were sold at the Glen Innes store sheep sale.

The Second Dip 193 The second dipping occurred, on 29 April, under Mr Montgomery's supervision at "Abbotsford". Following the dipping he issued an order (03152) for the movement of 630 sheep back to "Rosemeadow" by sundown on 30 April. This dipping was attended by Mr and Mrs Perrett, and by Matthew Taylor. Mr Smith was not present. Top Clip Blue Diazinon was again used. 194 There was a dispute as to the number of sheep that were dipped, Mr Perrett asserting, in his evidence, that 930 sheep plus lambs had been dipped. Mr Montgomery placed the number at about that recorded in the movement order, while Mrs Perrett was unable to be sure how many sheep were dipped on this occasion. 195 The instructions for plunge dipping indicated that the sheep should be not less than 14 days off shears, that the initial charge should be 500 ml per 100 L of water, that reinforcing should not involve the addition of water but should be at the rate of 650 ml of Topclip Blue, for each 500 L fall in dip level, and that topping up, after reinforcement, should be effected by adding 250 ml of dip for each 500 L of fresh water. 196 Mr and Mrs Perrett said that the dip was mixed and recharged by Mr Montgomery who made some measurements and thereafter used a new 20 litre drum, and later a 5 litre drum of the dip. Mr Perrett calculated that 25 litres of Top Clip Dip were added to 2580 litres of water, and as the dip level fell, the dip strength increased. The initial charge, he suggested, should have been only 1.3 litres of dip, that is, 500 ml to 1000 L of water. 197 Each of Mr and Mrs Perrett, and Mr Taylor, gave evidence to the effect that there were difficulties getting the sheep out of the draining pen, as they were staggering and falling. On their account, they were obviously unwell, in that they were salivating heavily, gasping for breath, shaking, and dying in considerable numbers. Mr Perrett, in fact suggested that most of them died before reaching the yards, which were only 72 yards from the dip. They said that Mr Montgomery made unsuccessful attempts to revive one sheep which had collapsed in the draining pen and which was dragged out. Mr Taylor accepted, in cross examination, that dipping is stressful even for strong sheep, and especially so for sheep in poor condition. 198 Mrs Perrett claimed that she had screamed out to him to stop the dip, as the sheep were "going down like flies". Mr Montgomery denied that this occurred. He also denied Mrs Perrett's statement that he had said to her "Just bloody well get on with the job" when she complained that there was something wrong with the sheep, as they would not walk. 199 It was their account that Mr Montgomery would not listen to their protestations and requests that more water be added, insisting that the sheep were just "a little cold" and would be "alright when they warmed up in the sun." Mr Perrett also suggested that Mr Montgomery indicated to him that he could be charged with the obstruction of an officer. 200 The Perretts said that Mr Montgomery left immediately after the dipping, but returned later that day. They said that when he did so, he made a suggestion that they put the surviving sheep onto the turnip crop of 3 acres, which the Perretts were growing for market in Queensland. The price which Mr Perrett suggested that they had received for 1000 bags the preceding year had been in the order of $10 to $14 per bag. He also said that they were unsuitable as sheep fodder being a water vegetable. 201 According to the Perretts, Mr Montgomery suggested that the sheep would fill up and recover quickly if this was done. Mr Montgomery however, said that the suggestion to feed turnips to the sheep came from Mr Perrett rather than from him, and that it was something with which he agreed. 202 The Perretts said that the dead sheep were moved away from the yards to an area where they were burned some weeks later. In the meantime, on the same day as the dipping, Matthew Taylor who had assisted with the dipping, reported feeling unwell and to have irritation in his legs, face and arms, together with a headache, shaking, nausea, and burning eyes. He reported being now unable to go near Diazinon, and to be suffering from an allergic reaction. Mr Montgomery said that he had no recollection of Mr Taylor complaining that the dip was burning him, or that he was feeling sick, and he denied Mr Taylor's statement that he had instructed him to get into the dip to move a sheep out, saying that he was acutely aware of the risk to human health of organophosphates. 203 Additionally, the Perretts said, a Kelpie bitch which had become wet with dip, while working with the sheep, and who was showing the same symptoms as they were, died. 204 The Perretts said that during the dipping, Mr Montgomery gave signs of being unsteady on his feet, to be smelling of whiskey, and to have his fly undone. He denied those allegations. 205 At dusk on the day of the second dipping, the plaintiffs said, Mr Smith arrived at the property, explaining that he had come in order to check the sheep. According to Mrs Perrett, he observed that some of the sheep looked alright, and that some may or may not pull through. He indicated that they could walk the sheep down to the holding paddock at Kingsgate Road, and then on to "Rosemeadow", on the morning of 2 May. She accepted that she made no complaint to Mr Smith about the dipping, and that she neither showed him the dead sheep or mentioned how many had died. 206 Mr Taylor who confirmed helping Mrs Perrett to remove dead sheep from the yards area, recalled seeing sick and shaking sheep sitting in the paddock, and also observing the Kelpie which died. 207 Mr Perrett said that 679 sheep died, as a result of the second dipping, either on "Abbotsford" or after they were moved back to "Rosemeadow". The later deaths he attributed to post dip pneumonia; the earlier deaths, on his account, being due to organophosphate poisoning. Mr and Mrs Perrett said that the skin of some of the sheep appeared to be scalded, and that their wool lifted off. The skin of the recently shorn sheep, they described as developing circular patches, and as going black. Mr Tim Newberry confirmed the observations of Mr and Mrs Perrett in relation to the presence of dead sheep, and of sheep that had lost their wool and had skin that appeared cracked and scalded. 208 On Saturday 2 May, Mr Perrett said, he was instructed by Mr Smith, who he met while moving the sheep back to "Rosemeadow", that he was not to leave them along the road. Mr Perrett said that Mr Smith indicated that he had to have the sheep back at "Rosemeadow" by Monday night, and added that they had spoken to their barristers, and that they were not responsible for the sheep dying in the dip. Additionally, according to Mrs Perrett, he was informed by Mr Smith that Mr Montgomery had never dipped sheep before the first dip. Mrs Perrett said that when she spoke to Mr Smith, from her position behind the sheep, he had also said to her "We have spoken to our barristers about the dipping and we know that you will understand". She was taken aback by the remark, but did not inquire what he meant. Mr Smith denied saying anything to the Perretts about barristers, or about Mr Montgomery having no experience with dipping. 209 Mr Meehan said that he had been at the sale yards in Glen Innes, on 29 April. Between 11.30 am and 12 noon he said that he saw Mr Montgomery walking briskly down the alleyway of the saleyards and then speaking to Mr Smith. That night he spoke to Mr Perrett and was informed that the dipping had gone badly, and that there were sheep dead or dying. On the following morning, he said, he went to "Abbotsford" and saw many sheep dead and "a few sheep lying down looking sick". Mr Montgomery accepted that he had gone to the saleyards after the dipping, but denied that he had hurried there to find Mr Smith, because he was concerned as to what had occurred. 210 Although Mr Montgomery denied that there were more than two deaths, or any dead or obviously sick sheep lying around, he did provide a report in January 1996, in which he accepted that his charge rate calculations were in error by a factor of 5 for lice control, and of 2 ½ for blow fly control, and that his reinforcing calculation was also excessive. These errors he put down to a lack of experience on his part. 211 He acknowledged that the dipping had been conducted under his supervision, and that he had made a "plunge dip dimension diagram with incorrectly calculated quantities of dip to be used at the initial charge and reinforcement". He said, however, that he had studied and followed the mixture instructions on the can containing the dip, and doubted that his wrong calculations "had any part to play" in the mixing of the dip. He also claimed to have been present at field day dippings prior to this occasion. He did not agree with Mr Perrett's calculations of the volumes of concentrate used, and could not say whether a new 20 litre container was opened. He accepted that the first 20 or so sheep were put through the dip twice. 212 The error which Mr Montgomery assumed that he had made related, on his account, to the fact that he had used an old product information bulletin and had selected a blowfly strength mixture, as a consequence of which he may have used up to 5 times the recommended ratio. The maximum concentrate used, he thought, had been in the vicinity of 9 litres, although he accepted that he really did not now know what had been done in this respect. 213 He made reference, however, to CIBA Giegy tests which had not shown losses with admixtures of up to 30 times the recommended ratio. 214 He accepted that the second dipping had been stressful for him, in that there had been two deaths of which he had been aware. He also accepted that Mr Smith had volunteered to go back to the property with the movement order, and that he was grateful for him to have done so. In that respect he considered that Mr Smith's relationship with the Perretts was better than his. 215 He said that that no time, either during or after the dipping, did the plaintiffs complain to him that the way in which the dipping had been carried out was incorrect. 216 Mr Perrett however said that apart from the complaints made during the dipping, and Mr Taylor's obviously unwell appearance, indicated by his watery eyes and red burnt face, he complained to Mr Montgomery, by phone, on 30 April, in relation to the dog that died. It was this, he suggested, that led to Mr Smith's observations on 2 May. He also said that while Mr Montgomery was on the property, there were about 250 sheep already dead, lying within 75 yards of the house. 217 Mr Montgomery accepted that he had been concerned about the condition of the sheep at the time of the second dipping, knowing that feed conditions at "Abbotsford" had been "very tight" (a fact denied by Mr Perrett), as had been conveyed to RSPCA Inspector Harmer as far back as November 1991. Mr Perrett acknowledged that the RSPCA had inspected the sheep on 6 November 1991, at which time Mr Perrett asserted, he could have safely dipped the sheep in the warm weather months. 218 The day of the dip, Mr Montgomery said, was dry but cold, and the sheep appeared to be "thin and emaciated". No one present, he said, raised any concern as to any danger to the sheep caused by the combination of dipping and the cold weather. 219 He acknowledged that many sheep did show "signs of cold stress" when they went through the dip, and many were "further weakened" by the plunging, to the extent that they had trouble climbing out at the other end and had to be helped. He denied seeing any evidence of scalding or burning. The primary cause of the "few deaths" which he understood to have accompanied the dipping was "malnutrition…coupled with the cool conditions". He also suggested that the poor condition of the dipped sheep would have been exacerbated by the worm infestation which became evident in July 1992. The existence of any such problem was questioned by Mr Perrett, who denied the presence of black scour worm. 220 The weather conditions, as recorded at the Agricultural Research and Advisory Station at Glen Innes, showed that on 29 April, the temperature ranged between 7.0°C and 20.0°C, and that there was a cold snap over the two following days, with the minimum and maximum temperatures for 30 April and 1 May respectively being 4.0° and 2.6°C, and 17.0° and 17.2°C. As a measure of the absolute conflict between the witnesses in this case, Mr Perrett said that these figures were wrong, and that in fact the minimum temperatures for 29 April, 30 April and 1 May were 8.1°, 3.0° and 4.0°, while the maximum temperatures were 18.4°, 19.8° and 18.2°C. 221 The implementation of the stock movement order back to "Rosemeadow" was delayed for 2 days, Mr Montgomery said, by reason of the adverse weather, and not for the reason advanced by Mr Perrett, namely, that the sheep were too unwell after the dipping to move. 222 Mr Smith said that he had never heard of sheep being scalded or dying from excessive dipping with diazinon. He also said that Mr Perrett informed him, at one stage, that he had been growing the turnips to fatten his lambs. 223 Mr Perrett said, in his affidavit of 24 October 2002, that 930 sheep plus lambs were dipped on the second occasion, that Mr Montgomery acknowledged to him that 300 had died, yet wanted to write out an order for the return movement of 930 sheep. He claimed that, when he explained that he could not move that number because of the deaths, he wrote out an order for only 630 sheep. At one stage of his affidavit, Mr Perrett suggested that Mr Montgomery had been "so panicked, stressed and agitated [about the results of the dipping] that it was impossible to speak with him." He also suggested that he raced off to see Mr Smith, leaving his belongings behind. 224 A letter was provided by David Overend, Technical Services Manager Farm Animals, of Ciba-Geigy Australia Limited, the manufacturer of the dip. It was to the effect that he had calculated, (from the details supplied) that the mixture used had been 17 times over strength, causing nerve damage leading to "lethargy, respiratory distress etc". The precise basis upon which this calculation was made was not provided, nor was any witness from this company called in the plaintiffs' case. There was no post mortem conducted on any of the sheep. No photographic record was made, nor was there any formal complaint to the Department. 225 Mr Hetherington confirmed that the signs of organophosphate poisoning included profuse salivation, rigid paralysis, spasms and death through asphyxiation, and that they were dose related. 226 Mr Plant, an experienced veterinarian with special experience in relation to the sheep industry, and in particular flock health, was called as a witness by the defendants. He noted that the recommendations for the use of Top Clip Blue for lice control, called for an initial charge of 500 ml of concentrate per 1000 litres of water, and for reinforcement of 650 ml of concentrate for each 500 ml litre fall in dip level. Reinforcement is required by reason of the fact that diazinon is a stripping dip, the chemical being progressively taken out of the dip wash in the wool of the sheep dipped. Reinforcement is then followed by topping up the dip by adding a further 250 ml of concentrate for each 500 litres of water added. 227 He calculated that with a draining pen, removing 4 litres of dip wash per sheep, the total concentrate required to dip 600 and 900 sheep in a 2400 litre dip would be 5.52 litres and 7.68 litres respectively. Had a blowfly strength mixture been used, these figures would have increased to 10.56 litres and 14.64 litres. He calculated that if 25 litres of concentrate had been used then that would have exceeded the correct fly strike mix, by 60%. 228 He said that during the 1980's and 1990's, in his role as a veterinary specialist in sheep diseases with the Department of Agriculture, he had received copies of all laboratory results in relation to sheep investigations that had been carried out. There were no mortalities reported where diazinon toxicity was suspected, although there were some mortalities attributed to other causes, including cold weather following the dipping of sheep that had been in poor condition. 229 He said that reports of 5 times the blowfly concentration had not recorded adverse effects, and that experience with the use of Eureka Gold, which delivers a higher concentration of Diazinon, had not shown toxicity. He also said that there were reports of testing diazinon formulations where 30 times the recommended concentration had been used without adverse effects. 230 Had the mixture been 17 times over strength as the plaintiffs suggested, then for 600 sheep to have been dipped at the lowest recommended concentration, and removing the smallest amount of dip wash for sheep, then, he said, it would have been necessary to have used 17 x 5.52 litres of concentrate, that is, 93.84 litres - a figure far in excess of the 25 litres which the Perretts said was used. 231 Mr Plant also said that there were no reports of sheep having been scalded in plunge or shower dips. While there were reports of wool loss, this, he said, would not be observed until four to six weeks had passed, when the break in the wool fibre that occurred in the wool follicle reached the skin level. Such breaks, he said, can also follow other conditions including nutritional stress, worm infestation, and fever of the kind that can occur as a result of infections, such as pneumonia, or as a result of driving sheep too soon after dipping. 232 He did not agree that the signs or symptoms described by the plaintiffs could be associated with diazinon poisoning. The most likely cause in this case, he suggested, would have been cold exposure in poor or emaciated sheep, such condition being due to a combination of poor nutrition and worm infestation. 233 Mr Perrett, in his re-examination, disputed Mr Plant's evidence as to the amount of dip wash removed per sheep, suggesting, from a somewhat rough and ready test which he had conducted, that it was as low as 1 litre per sheep. 234 Mr Perrett conceded that no complaint was made by him to Mr Shands, or to the RSPCA in relation to the second dipping, even though he thought that what had occurred was very cruel. (d) 4 May 1992 to 1 July 1992 - Management During Quarantine 235 On 4 May 1992, Mr Smith issued a certificate of Health (A6201) for 160 lambs to go from "Nassau" to the Warwick Saleyards, as well as a permit for their movement (07053) declaring them free of lice. These sheep had been on agistment at "Yarrow Lea" and had not been on the stock route. 236 On 11 May 1992, a permit (07197) was issued by Mr Smith for the movement of 300 cross bred sheep from "Nassau" and "Abbotsford" to the Wallangara Meat Works, for immediate slaughter. On the same date, an order for movement (02935) was issued for 120 sheep, suspected of having lice, to go from "Abbotsford" to the same meatworks. Certificates of Health were also issued by Mr Smith for these movements. 237 Mr Perrett said that he was instructed by Mr Smith at this time to shear and dip all the sheep remaining on "Abbotsford". Mr Perrett asked that the dipping be done under the supervision of a veterinary officer other than Mr Montgomery. A report signed by Mr Smith on behalf of Mr Montgomery dated 22 May recorded that by this date, there were 1600 sheep on "Abbotsford", of which 172 had been shorn, the remaining 1428 being due to be shorn by 29 May. Approximately 7 days after the shearing is completed, his report continued, the sheep on "Abbotsford" were to be dipped and a proportion moved to "Nassau", where there were only 200 sheep, approximately, left. 238 On about 30 May, Mr Perrett said that he asked Mr Montgomery what the Board was doing about the dipping. The reply which was given, he said, was to the effect that it was too cold to do so. Mr Montgomery accepted that this conversation may well have occurred, and was consistent with his concerns about the poor condition of the sheep. Mr Perrett, however, asserted that the reply was due to the fact that Mr Montgomery was not prepared to dip any more sheep or to allow anyone else to do so. 239 On 1 June, Mr Smith made an inspection of the sheep on "Rosemeadow" which had been dipped on 29 April. His report of 2 June indicated that he had only found dead lice. His report concluded "To the best of my ability, I could not observe live lice, nor does the appearance of the sheep lead one to suspect that the sheep may have lice infestation". 240 According to Mr Perrett, Mr Smith said that, on this day, all of the sheep that had lost their wool, and had been scalded, in the second dipping were to be destroyed. Mr Perrett said that he wanted the sheep released from quarantine. Mr Smith, according to him, refused, observing that they were not to go to the saleyards because of the scalding on their skin. Mr Smith denied this conversation, and said that he did not see any scalding or sheep with lost wool. 241 Mr Meehan said that, during this month, Mr Montgomery phoned him and asked if he wanted to take some of the Perretts' sheep, without charge. He said that Mr Montgomery had said that there would be no quarantine on the sheep, and they would be free to mix with his sheep. He declined because his property was in drought. 242 On 18 June, Mr Smith received an instruction from Mr King to serve a Form 9 on "Abbotsford" and to release "Rosemeadow" and "Nassau" if he was satisfied there was no lice there. 243 At 5.30 am, this day, the plaintiffs each said, Messrs Smith and Montgomery arrived at "Abbotsford" and forced their way into the premises, breaking the back of the rear door in the process. When Sergeant Tucker, who happened to have been staying there, came out to see what the commotion was, the visitors quietened down. According to Mr Perrett, a demand was made by Mr Smith for the "paper work" from his solicitor about the bank taking possession of the properties. One such letter, dated 14 April, from the Perretts' solicitors, advising of the stay until 18 June, was provided to Mr Smith, according to the plaintiffs, and returned later that day. Mr Tucker, now retired from the Police Service, confirmed the occurrence of this visit in the early hours of the morning, and described hearing banging and crashing sounds like a raid, as well as raised voices. He was not, however, present during any discussions between Messrs Perrett, Smith and Montgomery. 244 Mr Montgomery and Mr Smith each denied any attendance at such an early time of the day or any conversation along the lines described either by Mr or Mrs Perrett. 245 Mr Smith acknowledged that he and Mr Montgomery had gone to the property this day, where they were introduced to Mrs Tucker. He said that an amicable conversation ensued in relation to a block of land which had once been owned by Mr Smith's family and later acquired by Mrs Tucker's family. He denied asking for any paperwork in relation to the Bank. The only sighting of Sergeant Tucker, who he did not know, but who was identified as such by Mr Perrett, he said, was of a man who they had seen earlier walking among the sheep. 246 On 18 June, Mr Smith said, he had a conversation with Mr Byrne, the Regional Director of Regulatory Services, in relation to the welfare of the plaintiffs' sheep, and the National Bank. Mr Byrne provided an advice (the substance of which was passed on to Mr Montgomery) in the following terms: " Following your telephone report this morning I contacted Perretts' Solicitor, Mr Ron Harris at his Grafton Office and subsequently spoke to the secretary of the National Australia Banks solicitor involved in this matter. Both advised that the bank has no interest in the stock on "ABBOTSFORD" and that any writs served refer to the land only. It therefore remains Mr Perrett's responsibility to comply with quarantine undertakings and animal welfare requirements. The following action by you is required to manage the situation: 1) Advise Perrett that we hold him responsible for the stock and that his options to deal with them include; (a) Destruction. (b) Agistment on an approved (secure) property where the infestation can be treated without endangering other owners. (c) Sale or transfer to another owner subject to that owner being able to secure the sheep and treat the infestation. Mr Perrett should also be advised that the matter has been referred to the RSPCA. His failure to take up one of the previously mentioned options will leave you with little choice but to order him to destroy the 1500 sheep in question (Stock Diseases Act 8(1)(b)). Failure to comply with such an order within the required time - I suggest not more than three (3) days in this case - will leave him liable to prosecution, allow an inspector to have the stock destroyed and leave Mr Perrett liable for the full cost of this work. I note your comment that the sheep in question have no commercial value. Please keep me advised of progress." 247 On that day, Mr Montgomery prepared a report in the following terms: " Re: Mr. L.J. Perrett, 3 Properties, all quarantined for sheep lice on 11th February 1992. _______________________________________

1. "Abbotsford", Red Range: presently has 1500 sheep including lambs. Including 300 in wool shorn to last Friday 12 June 1992. Property inspected this morning. Sheep in poor condition suffering from cold. Hungry and emaciated. Some sick and evidence of recent deaths. 2) "Nassau": carrying shorn lice free sheep. Number not exactly known but less than 600. 3) "Rosemeadow": 664 shorn lice treated sheep. After your telephone advice, I understand that L.J. Perrett is responsible for the quarantine and well being of the sheep. Ranger J. Smith will tell Mr. Perrett of his responsibilities this morning and the options open to him. We want to know when the bank is taking over the properties and will no doubt learn in due course after your enquiries. The sheep inspected today on "Abbotsford" in both my own and J.H. Smith's opinion would be of no commercial value. "

248 Later in the afternoon of 18 June, Mr Montgomery gave Mr Perrett an "order prescribing cause of action when land or stock quarantined", under the Stock Diseases Act, in the following terms: " I hereby order you to comply with one of the following options in respect to the quarantined sheep at Abbotsford a). Destruction and burial. b). With the District Veterinarians approval Agistment on an approved (secure) property where the infestation can be treated without endangering other owners. c). With the District Veterinarians approval: Sale or transfer to another owner subject to that owner being able to secure the sheep and treat the infestation.

Failure to comply with this order within 5 calendar days, i.e. by 5 pm Tuesday 23rd June 1992 Will render you liable to prosecution." 249 On 18 June 1992, Mr Roth, Principle Veterinary Officer (Endemic Diseases), prepared a Ministerial Briefing Note, in relation to "Abbotsford" noting: " The above property has been in quarantine due to the fact that sheep lice on the property present a risk to neighbouring sheep flocks. The National Australia Bank is now intending to foreclose on this property and this is anticipated to occur in approximately 14 days time. The 1500 sheep on the property are malnourished and their welfare needs are compromised. They are considered to be of little economic value. An Order will be issued on the owner allowing him 5 days to destroy the sheep. The owner will be allowed 3 days to find agistment on an approved property or to obtain a sale to an approved property. The reason for issuing this order now is that it is considered that the owner may vacate the property. Next Monday the situation will be reassessed and a formal approval for seizure and destruction of these sheep will be requested if this procedure is still necessary." 250 According to Mr Perrett, Mr Montgomery indicated in the course of his discussions with him at about this time, that he had spoken to Mr Meehan about him taking over the sheep from "Abbotsford". Mr Meehan confirmed that Mr Montgomery had offered him the sheep for nothing. He added that Mr Montgomery had said that they were free of lice and could mix with his own stock. Mr Meehan however refused the offer. Mr Montgomery said that he had no recollection of any such conversation, although he said that he did recall that they "went out of their way to try and find buyers for those sheep so as to remove the problem." 251 Mr Perrett claimed that Mr Montgomery agreed on this day to get him hay, at no cost, when he complained about being required to shear the sheep, when he knew they were not to be dipped. 252 On 19 June, Mr Montgomery signed Releases from Quarantine 01163 and 01165 for "Nassau" and "Rosemeadow", on Mr Perrett's account, without having first inspected the sheep. On that day, Mr Montgomery gave Mr Smith a letter in the following terms in relation to "Abbotsford": " Further to the order issued to you yesterday. Three options are mentioned. A combination of these options would be acceptable; for instance finding one or more owners of secure properties where some of the sheep can be sent with my permission and destruction and disposal of the remainder. Another option not mentioned on the order but which you understand is that sheep can be slaughtered at an abattoir for instance the Highland Pet Food Abattoir at Guyra. Movement there being under a permit. If you are unable to comply with the directions for disposal of the sheep set out on the order given to you yesterday then, after expiry of the order which was 5 calendar days, the stock will be seized, destroyed and disposed of by inspectors appointed under the Stock Diseases Act and reimbursement for costs entailed sought through court action. If you have any other ideas on suitable disposal of the stock or require advice or help please feel free to communicate with either myself, office phone number 067 321 200; home phone number 067 322 378 or Ranger Jack Smith, office phone number 067 321 200; home phone number 067 322 796." 253 Mr Perrett suggested that the "Rosemeadow" sheep were released from quarantine on 19 June only in order to facilitate the Bank taking possession of that property, and that when it failed to do so, the property was re-quarantined on 22 July, as later noted, in order to stop the scalded sheep being displayed at a saleyard where questions might be asked. 254 On 22 June, Mr Byrne prepared a report in the following terms: " Mr Perrett was issued with an order under the Stock Diseases Act on 18.6.92. The order gave Mr Perrett 5 days to arrange disposal of the sheep from Abbotsford by destruction, transfer to another owner or agistment. The latter two options required District Veterinarian approval to ensure that other flocks were not put at risk. On Saturday 20.6.92 District Veterinarian Glen Innes advised that Mr Perrett had not been able to dispose of 1500 sheep in poor condition presently quarantined for lice on the above holding. Two other holdings managed by Mr Perrett - "Nassau" and "Rosemeadow" - are running some 1200 sheep recently released from lice quarantine. Again the owner has been unable to dispose of these sheep. All 3 properties are subject to Writs of Possession issued on 18.6.92 in favour of the National Australia Bank. In discussions with the District Veterinarian Mr Perrett stated he didn't have enough money to feed his family let alone feed or destroy and bury the stock on "Abbotsford". He also stated that he was seeking publicity on this situation and particularly the bank's role in his present predicament. Inspections by an RSPCA officer today confirm an animal welfare problem with approximately 30% of the sheep in poor to very poor condition, limited feed and evidence of recent deaths. Deaths will continue if the poor sheep are not drafted off and hand fed immediately. I anticipate that Mr Perrett will not be able to deal with this situation and have instructed the District Veterinarian as follows: (1) Find out if local pet food abattoir can take any or all sheep. (2) Obtain quotes/cost estimates for on farm destruction and burial. (3) Seek CDAH approval through to DVS Newcastle to seize and destroy if owner fails to comply with order issued on 18th June (4) Seek CDAH approval to have NSW Agriculture pay cost of destruction and disposal. … Note: The destruction and disposal of the stock is seen as a service to the community. In view of Mr Perrett's circumstances there appears to be little point in pursuing him through the courts in relation to his anticipated failure to comply with an order. The order was issued to establish our right to deal with the stock and as a means of confirming that the owner was given other options before what I again anticipate will be their seizure and destruction." 255 Between 21 and 25 June, Mr Perrett said, he was present in Sydney in an attempt to obtain an injunction to restrain the Bank from enforcing its securities. Upon his return to "Abbotsford" on 26 June he found a letter taped to the back door in the following terms: " Please have your better sheep yarded for inspection by Peter Stacey Guyra Abattoirs on Wednesday morning 24 June, 1992 at 9.30 a.m. Peter may agree to remove the sheep with no payment involved." 256 This followed upon an instruction, in writing, from Mr Montgomery on 22 June to Mr Smith, to go to "Abbotsford" to count the sheep, to check any discrepancy in the numbers of sheep there, and any reasons therefor, and to advise of the possibility of the abattoirs taking some of the sheep. He was also advised that this may involve contacting Mr King for permission for the movement of the sheep. 257 By mid June, Mr Perrett said, there had been some sleet, snow and cold weather in the region (as appears from Bureau of Meteorology records for 18, 25, 27 and 28 June), and some of the sheep which had been shorn on Mr Montgomery's instructions, but not yet dipped, had died by reason of cold stress. Mr Perrett said that it had in fact been inappropriate to require the sheep to be shorn at that time of the year. Mr Smith denied that this was the case, and said that instead, the problem was one of malnutrition due to gross overstocking, pointing out, for example, that at one stage there were 2500 sheep on "Abbotsford" which had a 641 DSE carrying capacity, and they were not being hand fed. Mr Perrett denied that there ever were 2500 sheep on "Abbotsford". 258 Mr Perrett also said that he had organised with Edward Taylor, to deliver 100 bales of lucerne hay to "Abbotsford" to feed the sheep. He was able to produce a receipt for the purchase of the hay, which he said had been delivered to the property. The payment, he said, had been effected by his endorsement to Mr Taylor of a rebate cheque from the Department of Agriculture. 259 On his account Mr Perrett appeared to have been back at "Abbotsford" for a few days between 27 June and the time of his return to Sydney, where, on 30 June, the Supreme Court proceedings were adjourned until 16 March 1993. He remained away from the property until 2 July 1992. 260 In the meantime, that is, between 22 June and 2 July, there was a good deal of activity, as recorded in the several reports which were prepared by the Rangers, and by others involved in this matter. 261 For example, on 22 June, Mr Montgomery said that he and Ms Harmer made an inspection of some of the sheep and available pasture on "Abbotsford". He said that there was some green pick, and the numbers appeared to be down. Although the sheep seemed to be in poor condition, he said that he did not consider the situation critical. Ms Harmer made a diary note this day to the effect that 30% of the mob were "poor to very poor". She also said at the trial, in relation to the feed that she saw, that it was dry feed and was insufficient to carry over the winter. 262 A memorandum was prepared by Mr Smith, on the following day, noting: "10.30 a.m. to 12.15 p.m. on 23 June, 1991 I, with the assistance of recently gazetted Inspector of Stock, Noxious Animals Inspector, Robert Lynn and Reserves Labourer Richard Gallagher, using two four W.D's. mustered onto various boundary fences at Abbottsford. Great difficulty was encountered due to weak sheep falling over, but approx. count was obtained, that being: 541 recently shorn sheep 94 Woolly Sheep 635 Total - give or take 5% Approx. 30 sheep appeared to have died during the last three weeks. Re: Mustering of sheep to "Abbotsford" sheep yards on 24.6.92. A drover would have to be employed - Cost approx. $100.00 Proposed inspection by A.M.H., Guyra Abattoirs tomorrow afternoon, in my opinion NOT ONE SHEEP is fit for human consumption." 263 A memorandum of 24 June was prepared by Mr Smith, constituting a reconciliation of the sheep numbers as follows: " 28.4.92 664 Sheep to Glen Innes Sales 29.4.92 135 Sheep to Glen Innes Sales 5.5.92 160 Sheep to Warwick Sale 11.5.92 420 Sheep to Wallangarra TOTAL SOLD - 1379

20.3.92 630 moved dipped sheep to Nassau 29.4.92 630 moved dipped sheep to Rosemeadow Total Accounted for - 2639 On hand at Abbottsford 23.6.92 - 635 : 3274 Returned on 30.9.91 on Order of Movement 03092 from Moree 1000 ewes and 1000 lambs to Rosemeadow 1600 Dry Sheep to Nassau TOTAL 3,600 *****************

Interviewed L.J. Perrett - 3.10.91 Statement by him - 1000 ewes and 800 Lambs on Rosemeadow 3000 sheep on Nassau TOTAL - 4800 ****************** Assuming Order of Movement 03092 from Moree is correct and no sheep were previously on Perrett properties shortage is 326 (could be death)."

Mr Perrett disputed the accuracy of these figures. 264 On 24 June, Mr Smith received an inquiry from a journalist in relation to claims made by the plaintiffs in the Federal Court, concerning the actions of the Bank and the Board. It was followed by a fax, setting out a number of questions relating, in particular, to proposals to shoot the Perretts' sheep, and a suggested comment attributed to Mr Montgomery that morning, that the sheep were to be shot to facilitate the Bank's possession of the land. A reply was sent denying that any such comment had been made. Mr Perrett however asserted that he believed the "Abbotsford" sheep were to be shot to facilitate the Bank obtaining possession of "Nassau" and "Rosemeadow". 265 In an updated briefing note of 24 June, Mr King summarised Mr Smith's report, noted that Mr Perrett had instituted action in the Supreme Court to restrain the Bank's foreclosure over the properties, and also noted the interest of a Sydney Television channel in the case. The report continued: " There are three properties involved in the foreclosure by the bank, these properties being 'Abbotsford' currently under quarantine with 635 sheep, 'Nassau' released from quarantine and 'Rosemeadow' released from quarantine. Because of complaints from neighbours over some period of time quarantine was imposed on all these properties and a supervised lice management programme instituted early this year. This programme had been progressing slowly but satisfactorily until this latest situation with the bank. Our order is designed to ensure that the diseased stock are not abandoned and the DV is under instructions from RDRS to provide any reasonable option for the disposal of the sheep which does not put disease control at risk."

266 A media release was issued on behalf of the Glen Innes Rural Lands Protection Board at about this time, in relation to its Policy concerning lousy sheep, presumably in response to the disclosure of media interest in the case. 267 On 25 June Mr Smith said that he called at "Abbotsford" twice to discuss when he could muster the sheep, but could not find Mr Perrett there. He reported that fact to Mr Montgomery. 268 On 25 June an update was provided by Mr Montgomery, noting that the Perretts had been absent from "Abbotsford", over the preceding 3 days, with the result that the yarding for the 24 June inspection by the buyer for Guyra Meat Packing Company had been cancelled. It noted that the Pet Food Abattoir had declined the sheep and outlined the options as follows: " The Options 1. Are circumstances sufficiently changed to allow treatment at Abbottsford now as an option?

Reasons - (a) Only 630 sheep there instead of 1500 as originally believed. (b) Perrett may be staying longer than expected (is this so?) so as to manage post treatment quarantine of 2-3 weeks or could the bank be approached to see if they would take over quarantine? Hand feeding of sheep required HOWEVER AGAINST THAT - my opinion only 30-40% of the sheep would survive immersion in the plunge dip under cold weather conditions. Also 20% of the sheep are not fit to be mustered. Many of the sheep at an inspection two days ago were weak and lame - that is the opinion of BOTH inspectors present. If post treatment quarantine of sheep cannot be guaranteed slaughter would have to follow anyway. When it is finally clear that sheep cannot be taken to an abattoir or elsewhere I quite definitely wish on the farm slaughter and burial to proceed as soon as possible - on quarantine and welfare grounds. … In conversation with the Ranger Mr J Smith at 10.40 am, he informs me that there is still no sign of occupation at 'Abbottsford'. As you can see from the above report major problems would occur in any attempt to plunge dip the sheep and as time progresses the animal welfare problems are likely to become more acute. There are a number of woolly sheep as recorded yesterday, therefore, shearing is a requirement as well as dipping." 269 On the same date a further Ministerial Briefing Note was prepared by Mr Roth, noting the ongoing interest of the journalist who, reportedly, was working on a story involving collusion between the banks and the NSW Department of Agriculture "to evict battlers". The briefing note also recorded: " Mr Perrett has failed to comply with an order unde the Stock Diseases Act to arrange disposal of 635 lice infested sheep by either destruction or transfer to an approved property. This order was issued as it was considered that NSW Agriculture should be in a position to take decisive action in the event that these sheep are abandoned. It was considered that Mr Perrett may leave the property when he considers that the bank's foreclosure is inevitable. The fact that Mr Perrett has now failed to comply with this order means that this issue is now in Departmental hands to resolve and approval is now sought for NSW Agriculture to fund the slaughter of these sheep should this become necessary. Since the order was issued Mr Perrett has taken action in the Supreme Court to restrain the bank from foreclosing. From unsubstantiated reports the bank now has some sympathy largely due to the order which NSW Agriculture issued. We are endeavouring to determine the latest position with both Mr Perrett and the bank. … Ms Rosemary Harmer an inspector with the RSPCA has inspected the animals involved. She has indicated that from a welfare point of view this is not a major problem at this stage. However as 60% of the sheep are either poor or very poor and as approximately 1 to 2 animals are dying each day from weakness means that the situation cannot be allowed to proceed for much longer. … Recommendation Due to the very real possibility that this owner will abandon these lousy and malnourished sheep, approval is sought for NSW Agriculture to fund the mustering, killing and disposal costs associated with this operation. Estimated costs are $500." 270 On 27 June Mr Montgomery left a letter at "Abbotsford", in which he advised: " I called this morning (Saturday) to find out if when you are available and if it is convenient to you a time can be arranged when you will have the better sheep yarded for inspection to see if Guyra Abattoir will accept them. If you will help in this please contact myself or Jack Smith and then one of us will phone the buyer and inform him. Hopefully he will still be interested in the sheep." 271 Mr Montgomery said that after the second dipping, the lice infestation problem was of less concern, and that what had rapidly developed and was very worrying was the welfare aspect in that the sheep were not being fed properly. 272 The bank situation, he also said, created a problem because he was worried that if the properties were taken by the Banks, and the Perretts left them, there would be no one to look after the sheep. This was the situation, he said, at the time of Mr Byrnes' intervention leading to the orders. 273 In relation to the detection of lice, and the management of a flock of sheep once such a finding was made, Mr Montgomery remained certain that he had found a live louse in November 1991. He also made it clear that it is very difficult to find lice when the infestation is light, and that it may take up to six months before they can be readily found, although biting and scratching may occur at about 3 months, and fleece derangement may become evident at four to five months. He accepted that he did not see any signs of biting or scratching or of fleece derangement. 274 Mr Montgomery acknowledged, at the trial, that he too had not wanted the sheep brought back to Glen Innes. He indicated that a plan was settled, between himself and Mr Smith and Mr Byrne, that the sheep be moved to "Abbotsford" to be shorn and dipped, and then returned to "Rosemeadow" and "Nassau", with a view to getting the quarantine removed as soon as possible - that is, after the recommended waiting period of three to six months to check whether there was still any lice infestation. 275 However, he said, because of the reports of stock straying from "Abbotsford", and the poor condition of the boundary fences, this could not be achieved until those fences were repaired. He accepted that they had not inspected the internal fencing, but said that Mr Perrett had not claimed that they were secure. 276 He also said that there was no other place to dip the sheep, in this respect disagreeing that Mr Perrett had suggested that this occur on "Glen Athol" or on Mr Newberry's property. 277 He said in this regard: " Now, just because a place has a few lice on it or a farmer has lice on any sheep, doesn't mean he would be quarantined. You see, we quarantined Mr Perrett because of the poor condition of the fences and the sheep, the history of sheep going on the roads and people - we were protecting the other people up and down the road on either side."

(e) 2 July 1992 to 21 July 1992 - Destruction of the sheep on "Abbottsford" 278 On 2 July 1992 a fax was sent to Mr Roth from Mr Montgomery in the following terms: " Message: Confirming that the three inspectors at Glen Innes visited the property today and found clear cases of neglect and suffering having to destroy seven sheep. As well eighty nine other sheep were considered to have died since 23 June 1992. The owners are believed to have been absent for 10 days. Removal of two strands of wire from a boundary fence next [to] a principle (sic) road has made quarantine insecure. Concerning the welfare I considered it appropriate to inform Rosemary Harmer RSPCA Tamworth. At her request I will inform her tomorrow again on the state of affairs and if there is no decision made over destroying the sheep I was told that either 1) RSPCA inspectors will be sent to destroy the sheep or 2) The RSPCA will see if they can arrange supplementary feeding. Besides the sheep problem there are three dogs loose on the property probably surviving by eating downed sheep. At the visit today an effort was made to make a convincing photographic record of the welfare problem which has clearly escalated because of cold weather and no hand feeding." 279 This message follows an inspection which Mr Smith said was made on 1 July. Mr Perrett, however, suggested that the damage to the Kingsgate Road fences, which seemed to have been of particular concern, had been occasioned by a car crashing through the fence which snapped off two posts and loosened the wires. He said that repairs were made after it had been photographed by Montgomery, and after the damage to it had been reported to him by police. 280 The fax followed by a further briefing note from Mr Roth dated 2 July, as follows: " The above owner has still not been located despite many visits to the property, the leaving of messages and contact with Mr Perrett's solicitor. The Rural Lands Protection Board inspectors who have visited the property consider that the welfare situation of the sheep has deteriorated considerably. This is largely due to a very cold snap and it is estimated that 89 out of the 600 sheep on the property have died in the last 10 days. Whilst the welfare situation has deteriorated it is considered that the disease control situation has not deteriorated. There have been no complaints from neighbours regarding straying sheep. It is considered that the disease control situation does not warrant NSW Agriculture mustering and destroying the sheep. As the owner is not present this would be heavy handed action. Ms Rosemary Harmer from the RSPCA has again been notified regarding the welfare problem. She has indicated that she will act tomorrow (3.7.92), to destroy any sheep which are suffering excessively. She will then obtain hay to feed the remaining sheep. Rural Land Protection Board and NSW Agriculture staff will assist the RSPCA with this action however this action has been initiated by the RSPCA. Mr J Montgomery, District Veterinarian with the Glen Innes RLPB will indicate those sheep which would not survive even if feeding commenced immediately. The decision however to destroy these sheep will rest with the RSPCA inspector." 281 Mr Lynn, a Senior Ranger with the Glen Innes Board, who held office as a Noxious Animals Inspector, said that he had in fact accompanied Mr Montgomery or Mr Smith to "Abbotsford" when they went out to inspect the property in early July. He said that the dogs and sheep there, which he estimated to number "a couple of hundred" appeared to be in extremely poor condition and that the sheep appeared to be heavily infested with lice. He said that there were dead sheep carcasses all over the property, in paddocks, in the dip, shearing shed, shearing yards and machinery shed. On his estimate there were 20 to 30 or more carcasses, and they were in a state of decomposition, suggestive of them having died over a period of a month. 282 Some of the sheep, he said, who were down but still alive, had lost their eyes to crows, and some were tangled in wire. Some appeared to have been eaten or attacked by dogs. Two of these sheep he said were destroyed that day, and others were released from the wire in which they were caught. 283 He said that there was no grass other than a tinge in the paddocks, some of which had been ploughed up and were bare. There was however water available in nearby dams. 284 He said that they inspected some of the sheep and found lice in them. Their fleeces, he said, were "pulled", consistent with them having lice. At the trial he added that he also saw wool up against the fences where the sheep had been rubbing and scratching themselves. 285 Nothing was done in relation to the dogs, which were left untied. The destroyed sheep were not removed, being left as food for the dogs. It was his observation that he had never seen stock in such poor condition, and he concluded that there was no prospect of them getting better. It was as a result of this visit, he said, Ms Harmer was contacted. 286 Mr Montgomery placed this visit as having occurred on 1 July, and largely corroborated Mr Lynn's account, in relation to the presence of an injured sheep trapped in a fence, which was destroyed, and of seeing dead and weak sheep. On his account three or four more sheep, which were too weak to travel, were shot. He made no mention of seeing lice in any of the sheep, which he saw on this day. 287 On 3 July, the RSPCA Officer Rosemary Harmer attended at "Abbotsford", along with Mr Montgomery, Stuart McLelland of the Department of Agriculture, Robert Lynn and Richard Gallagher, each from the Glen Innes Board. A diary note prepared by Ms Harmer for this day recorded that there was evidence of recent deaths on the property, some 40 to 50 fresh carcasses having been seen. Some dry feed was seen in the thistle paddock, the remainder of the property being bare. Fifteen sheep were reported as destroyed by those present on the way to the yards, where an additional 119 sheep were destroyed. The carcasses were removed. A post mortem examination was conducted by Mr Montgomery on 1 ewe which had been in lamb, and which was found to have worms. The surviving sheep were drenched with Nilverm, and released, although they were said to be weak, emaciated, and coughing, with 3 recorded as having broken legs. She also noted that photographs were taken of the events of this day, which were included amongst the documents tendered. In cross examination she identified from these photographs of some of the sheep which she had regarded as having been in very poor body condition, with their hip bone and backbone clearly visible. 288 Mr Lynn confirmed this account, stating that he, together with Messrs Smith, Gallagher and Davidson had mustered sheep into the yards and had picked up by utility, and had taken back to the yards, those sheep which were down in the paddocks, but which had a chance of survival, before Ms Harmer's arrival. Sheep that had no chance were left. He recalled showing Ms Harmer the two sheep that had been attacked by dogs and that had been put down by them on the preceding day. He said that Ms Harmer went to town to purchase the drench, and that on her return he and Mr Smith drenched about 150 sheep and shot some 30 to 50 sheep in a makeshift race. Other sheep were shot out in the paddocks; he said that this was done on Ms Harmer's instructions. 289 Mr Montgomery also corroborated these accounts, indicating that the sheep destroyed included seven adults that were too weak to travel to the yards, 120 sheep that were weakened by malnutrition or parasitism, or a combination thereof, or that had lameness or a limb injury. He confirmed the drenching of the survivors, and said that the reason for destroying the sheep that were shot was their "lamentable physical condition". The decision to do so, he said at the trial, as did Ms Harmer, had been a joint one between the two of them. He accepted however, that he had authorised Mr Lynn and Mr Smith to destroy mutilated and diseased sheep, in reliance upon his delegated authority under the Rural Lands Protection Act, and the Prevention of Cruelty to Animals Act. He rejected the proposition that the sheep had been shot to assist the Bank, or that it had occurred at a time when it was known that the Perretts were in Sydney. It was his account that he did not know where they were. 290 In a letter from Mr Montgomery to Mr Perrett, dated 16 July 1992, he advised that his post mortem examination on 3 July 1992 had shown the ewe in question had a "moderate to heavy worm burden", and that her "kidney fat reserves had disappeared". 291 When the plaintiffs returned to "Abbotsford" they were informed by Mr Meehan that he had heard from Mr Clibborn that his sheep were to be shot. They walked over to the shed with Mr Meehan where they said they saw a lot of blood and fired cartridge cases on the ground, but no dead sheep. Mr Perrett also noticed that a 20-litre tin of Nilvern drench which had been on the property was now empty, and that his drench gun was missing. It was his evidence that if 227 surviving sheep had been drenched, that would have only required 2.27 litres of drench, not a full 20 litres. 292 Mr Clibborn, who had previously worked for the Department of Agriculture and was an earthmoving contractor in 1992, reported having received an inquiry from Mr Montgomery in mid June as to the cost of building a pit for the burial of 120 to 150 sheep on the Perretts' property. In July he said he was asked to go to "Abbotsford" to dig the pit for sheep which, he was informed, had been destroyed during the preceding week. He found a pile of dead sheep in the watercourse area. His protestations about burying the sheep there, he said, were dismissed by the officers from the Glen Innes Rural Lands Protection Board who were present. He went ahead to bury about 150 sheep on the side of the hill running down to the watercourse. 293 Later that day, Mr Clibborn said, he assisted some officers from the Board to lift some rolls of hay, which he said were mostly stalks of no value, onto their trailer. This hay, he said, had been left near the yards, on the property. 294 Mr Perrett said that the shooting of the sheep, and their burial near a watercourse on the property, had not been discussed in advance with him, and had occurred without his knowledge. It was his opinion that the sheep had condition on them, were not unhealthy, and that there had been no justification for their slaughter. He also suggested that the fact that they had packed up tightly at the front of the crush indicated that they were not weak or ill. Mr Smith's response was that they had packed up the sheep tight to enable them to be shot humanely. 295 Mr Montgomery said that he had selected the burial site, which he placed in a gully out of site of the farmhouse, and well away from any watercourse. He believed that about 120 sheep had been buried. He acknowledged that a letter was received from the District Health Inspector advising of a high coliform count from some water samples taken from the watercourse. He was later advised that the inspector had been unsuccessful in obtaining a second sample, and added that there was uncertainty as to whether the problem was due to the buried sheep, or to the other sheep that had died from malnutrition and were lying around. 296 On 5 July, the Perretts left "Abbotsford" to return to Sydney for further Court proceedings. They said that they arranged for Joy Howe, Mr Perrett's sister, and for Mr Newberry to look after their dogs (a German Collie dog, 2 red Kelpie bitches, and 2 black Kelpie bitches) and to feed the sheep. They were being fed at the time, he said, with red clover hay and oat grain. 297 Mr Tim Newberry said that while the plaintiffs were in Sydney for the legal proceedings he had fed the sheep and dogs on "Abbotsford". He said that although the dogs were chained up, he found that someone had been letting them off their chains. They were fed regularly, he said, and he did not see them hunting the sheep. The feed given to the sheep by him he described as red clover lucerne and oats, which he had taken from the silo and cow shed. 298 Mr Meehan said that, at about the time of the cattle sales this month, he was asked by Mr Montgomery whether he was looking after the Perretts' dogs. When he said that he was not doing so at that time, Mr Montgomery mentioned that they were running around and stopping the sheep eating the hay. Mr Montgomery accepted that this conversation may have occurred, as he was concerned at this time about the dogs. 299 Mr Perrett said that while he was in Sydney some old, mouldy soya bean hay was delivered to "Abbotsford" and fed out to the sheep, even though he had plenty of hay in the shed. It appears that the acquisition and delivery of this hay was organised by Ms Harmer, after the shooting and drenching on 3 July. She said that she first consulted her Chief Inspector in Sydney and obtained his approval to purchase the feed, which was hard to find at the time, but in her view "suitable roughage feed for sheep in [their] condition". She did not, however, inspect it. 300 On 7 July Mr Montgomery provided a report to Mr Byrne of his inspection that day, noting, in relation to "Abbotsford", that 4 further sheep had been shot, that the remainder of the flock (315) were much livelier, and that one bale of hay had been fed out. At "Rosemeadow", he recorded, it was noted that portion 73, on which the bulk of the sheep were to be found, was short of pasture, and that a potential welfare problem existed. The report continued (205): "As the pastures are quite bare there could be a rapid turn around in the situation in a few days with poor to fair condition sheep starting to die. Hand feeding is required. Evidence of possible Black Scour worm infestation in young sheep. Portion 110 is carrying some sheep in poor to fair condition including lambing ewes on inadequate pasture but the bulk of portion 110 is given over to a mob of beef cattle in fair to poor condition on adequate pasture. Portion 186 across the river is very bare is carrying sheep in what appears to be fair condition. Nassau Pastures bare. Sheep in only fair condition. Some evidence of scouring weaners possibly requiring anthelmintic. Potential for a disaster unless hand feeding begins shortly." 301 Upon their return to "Abbotsford" on 12 July, the plaintiffs said that they found their dogs to be missing. They found a note from Ms Harmer who he phoned. She informed him that the pups could be picked up at Tamworth RSPCA. 302 None of the witnesses called by the defence seemed to be able to account for the fate of the 3 remaining dogs. Ms Harmer confirmed that she had only removed the 2 young dogs. It was Mr Perrett's account that the missing dogs had been in good working condition, were essential to his enterprise, and were worth $2000 each. 303 On speaking to Mr Lynn, Mr Perrett said he had confirmed shooting the sheep because Mr Perrett had not complied with the order. He declined to comment, he said, when asked about the dogs. Mr Lynn denied any such conversation. 304 Mr Perrett said that he also discovered that some further sheep, estimated by him to be in the order of 344 head (200 Merinos and 144 cross bred ewes), had died as a result of eating the hay which had been purchased by the RSPCA and fed out. He found, on his account, undigested and mouldy hay inside a dead sheep, and later (on 22 July) claimed to have had some of the hay inspected by Chris Shands in Glen Innes. Mr Shands said, on Mr Perrett's account, that the hay was toxic and cautioned him to fence his sheep away from it. Mr Shands, he said, also provided him with a handwritten advice containing recommendations for feeding ewes with sheep nuts and lucerne hay. He accepted that he made no complaint to Mr Shands that his sheep had been fed toxic hay. 305 Mr Shands recalled seeing Mr Perrett at his office, on 22 July, and giving him some advice in relation to supplementary feeding options for his sheep. His diary entry was confined to this item, there being no mention in it of any discussion concerning mouldy hay. 306 Mrs Perrett said that she examined four round bales of hay which had been placed near the fence at "Abbotsford". They appeared to her to be mouldy and stalky, and the sheep were somewhat disinterested in them. Some of the hay was eaten but a few days later she noticed that the sheep were obviously unwell. Some died. Later, she said, there was a growth of Bathurst Burr, Star Thistle and mint weed in the area where the hay had been left which she said continued to present a problem, none of these weeds being local to the area. 307 Mr Perrett similarly said that the hay was contaminated with these weeds, and that as a result they spread "all over…Abbotsford". He suggested that the hay had been sitting in the elements for about four years, being bleached on top and mouldy and muddy on the bottom. He offered the view that the clear cause of death was botulism. No independent tests were however made. 308 Mr Tim Newberry also confirmed seeing the hay, and finding it to be "mouldy", "looking like twigs", and unsuitable as fodder. He said that he noticed some dead sheep near it. Mr Meehan also said that at about this time, he observed some round bales of hay at "Abbotsford", just past the cattle yards. It appeared to be "very stalky hay without leaf" and "mouldy". He said that Mr Perrett informed him that a lot of his sheep had died eating that hay. 309 He also said that, at this time, the sheep on "Abbotsford" were in "light condition, which was standard in the district at the time as there was not much feed about". He did not recall them being in poor condition. 310 Mr Perrett denied that the property was in drought at this time, indicating that "Abbotsford" had recorded 53 mm of rain in May and 65 mm in June. 311 Mr Davidson, a reserve worker with the Glen Innes Board recalled having attended at "Abbotsford" in July 1992, under Mr Smith's instructions, to unroll some bales of hay that had been delivered to the property. He found ten bales of hay there, two of which he rolled out. He said that the property was in drought, and the sheep there were in a "poor and weak condition". He claimed to have seen at least a dozen dead sheep. He added that the fences were down, and that they were able to drive their vehicle over the wire to roll out the hay. 312 He said that he attended on two subsequent occasions, in the company of Mr Gallagher, to feed the sheep. There was no one present at the property, he said. On one such visit he was present when Mr Clibborn dug a pit. He claimed, contrary to Mr Clibborn's recollection, and Mr Perrett's evidence, that the carcasses, which he estimated to have numbered between 24 and 35 were dug up from a previous burial site near a watercourse, and moved to the new pit. He said that an additional dozen carcasses of recently dead sheep were also buried in the new pit. 313 He said that he had fed similar soya bean hay to stock over the years without any fatalities, and he suggested that the deaths were due to the poor condition of the sheep from starvation. He specifically denied shooting any dogs on the property. 314 Mr Gallagher also said that he had been present when sheep were shot by Mr Smith and Mr Lynn, on Ms Harmer's instructions. His calculations would place the number of sheep destroyed at "Abbotsford" at between 45 and 80 head, a figure disputed by Mr Perrett, who claimed that more than 150 sheep were put down. They were, on his account, in poor and weak condition, and he too, claimed to have seen "lots of dead sheep" there. He added that there was no grain in the paddocks and no food had been left out for them, or for the dogs. At the trial he said that he saw internal fences lying on the ground. 315 He confirmed having returned to the property, on several occasions, to feed the sheep from the round bales of hay that had been purchased by the RSPCA and delivered there. He said that he did not destroy any further sheep on these visits, nor did he find any additional dead sheep. He also said that he had not been involved in digging up and moving any dead sheep. 316 Mr Lynn said that Ms Harmer had organised the purchase of the hay for the surviving sheep on the day when the shooting of the weaker or sick sheep had occurred, and asserted that Messrs Gallagher and Davidson had unrolled a couple of the bales. The acquisition of the hay, he said, had not been the work of the Board. It was soya bean hay, and he had no knowledge of it poisoning any sheep. He added, at the trial, that he had not seen any other hay or fodder on the property. 317 He also denied all knowledge of the missing dogs and was adamant that he had not shot them. He confirmed that on Ms Harmer's instructions, he had attended "Abbotsford" on several days subsequent to the first visit and had destroyed another 6 sheep or so that were down, or which had been attacked by crows or were obviously not going to get up. 318 The property, Mr Lyn described as grossly overstocked, leading to the sheep starving. The dogs, he said, appeared to have been "just left there to fend for themselves". 319 Mr Montgomery said that there was evidence of neglect and injury from predatory animals, amounting to gross cruelty, in relation to the sheep that were destroyed. He added that on the day after Mr Lynn had fed out the hay, which had been purchased by Ms Harmer, (that is on 4 July 1992), he had gone out to inspect the balance of the sheep and to see the effects of the feeding and drenching. He said that he had observed a mob of some 300 sheep on top of a rise in a paddock which were cornered by Mr Perrett's dogs, and which, as a result, were being prevented from gaining access to the hay bales. Three of the sheep, he said, were trapped under rocks and were too weak to extricate themselves. He released them and chased the dogs away. He then reported to Ms Harmer that the dogs needed to be controlled. He also claimed to have spoken to Mr Meehan, who said that he had been feeding the dogs at "Abbotsford", but had not done so for the preceding week. 320 He added that there had been a clear need for the provision of fodder for the remaining, better conditioned, sheep. He also made it clear, at the trial, that he had neither shot the dogs, nor had he instructed anyone else to do so. 321 It was his evidence that the sheep deaths on "Abbotsford", at this time, were not due to any problem with the hay, but rather, were due to neglect and to injury from predatory animals. In his opinion, the sheep had been in poor condition and of no commercial value since his visit to "Abbotsford" on 18 June. 322 On 6 July, he said, he went back to "Abbotsford", with Mr Lynn and requested the destruction of three further sheep which he assessed as too weak to survive. The remaining sheep, he said, had improved noticeably in that they appeared to be stronger and moving more quickly. He put this down to the drench and supplementary feed. He was unaware, as were the other defence witnesses, of any complaint having been made by the Perretts concerning the RSPCA hay. 323 It may be observed that no analysis was ever made of the hay, nor was any expert evidence called to support the proposition that such hay was capable of killing sheep, or that it had done so on this occasion. 324 In one of his later affidavits, Mr Perrett suggested, even though he had not been present at the relevant time, that the reason why the dogs had been out rounding up the sheep, was because they had been used by Messrs Montgomery and Smith for a muster, and that they had then neglected to tie them up. In that same affidavit he suggested that a police officer had told him that Mr Smith had shot the three mature dogs. That was denied by Mr Smith. 325 There is some contemporary evidence of the state of the sheep, and of the paddocks, yards and fences, in the various photographs which were tendered. They tend to show that the fences were in a poor state of repair, that the sheep similarly seemed to be in a poor condition, and that some were obviously injured. 326 Mr Perret claimed that the reason for the deaths at this time was because the sheep were "continually chased, mustered and left shut in yards without feed", making it "nearly impossible for the recently shorn sheep to weather the cold conditions". Somewhat inconsistently, in his sworn evidence however, he insisted that the sheep which were shown in the photographs, including the ones that were shot, were in fact in good condition. 327 On 13 July, Mr Montgomery recorded that he had discussed the options still available for the sheep on "Abbotsford", noting that, because of the cold, dipping was no longer available. He suggested that slaughter was the best option. 328 Mr Perrett said that, on this day, Mr Montgomery encouraged him to sign a form to the effect that he was unable to resolve the "sheep lice infestation" at "Abbotsford"; that he agreed that the sheep had no commercial value and relinquished control of them to the NSW Department of Agriculture, in exchange for which the Department would not seek reimbursement of the costs entailed by his alleged non compliance with the 23 June order. He declined to sign the document. 329 Mr Perrett said that Mr Montgomery threatened him with legal action if he did not sign. In a later affidavit, however, he suggested that it was he who threatened Mr Montgomery with legal action, this day, in relation to the dead sheep, and that in reply Mr Montgomery said "If it's trouble you want, I'll give you trouble". 330 Mr Montgomery acknowledged giving the document to Mr Perrett. He said that this was done on Mr Byrne's instructions, for the reasons set out in the letter of 22 July 1992 later mentioned. He did not recall the conversation, but doubted that he had threatened legal action. 331 On 16 July Mr Perrett was advised, in addition to the results of the post mortem examination of the ewe on "Abbotsford" on 3 July, that subsequent examination of faecal pellets from the "Abbotsford" sheep had confirmed that they were affected by a variety of worms, including black scour worm. Copies of the laboratory test sheets were provided. This letter was delivered to Mrs Perrett by Mr Smith. 332 Mr Smith recorded in a report of the same day to Mr Montgomery, that he had inspected the boundary fence between "Abbotsford" and "Gungamba", a property owned by Mr Cooke. He noted that he had informed Mr Perrett that 140 metres of this fence were not sheep proof and needed repair, the second and fourth wires being missing. He reported, additionally, that although Mr Perrett claimed to have locked the sheep in the paddocks, and to have been feeding them good lucerne hay which he had purchased, he questioned the truthfulness of this assertion, indicating that there was no evidence of the sheds being stocked with hay. He suggested that, instead, the sheep were being fed the RSPCA hay. 333 On 20 July, Mrs Perrett said, she had a visit from Ms Harmer, seeking payment for the hay. She explained that they could not pay, and added that she had been too afraid of further trouble to make a complaint about its quality. 334 In a document provided by Mr Smith in December 1997 to the plaintiffs' solicitors, in response to a subpoena which had been served upon him, he advised that the destruction of the sheep had been directed and supervised by Ms Harmer of the RSPCA. Additionally he said in his statement, that the purchase and provision of the fodder had been arranged by her, without any involvement of himself or Mr Montgomery. The rolling out of the hay by Board staff, he said, had occurred as a result of Ms Harmer's request, because she had said that she could not find where the Perretts were, and that the sheep were dying. He agreed that he had sent staff out and understood that, in accordance with her instructions, they had fenced off the rest of the hay with a temporary fence. He saw nothing wrong with the hay, but did notice, when he called out to the property, on 16 July, that someone had removed the fence, allowing the sheep onto the remainder of it. The result, he said, was a "hell of a mess… the sheep had stamped the hay into the ground." 335 Mr Perrett, he said, made no mention to him of the sheep dying after eating it; in fact he recalled him saying that he was teaching the sheep to eat it. Mr Perrett however claimed that Mr Smith was informed that the sheep were dying because of it, when he visited "Abbotsford" on 16 July. He also claimed that when he informed Mr Smith, this day, that a Supreme Court summons would be issued in relation to the shooting of the sheep and dogs, and the poisoning of the sheep by mouldy hay, he replied: "If you go ahead with legal action I will get Rosemary Harmer to prosecute you". It was his account that Mr Smith thought that the mouldy hay was "a huge joke". (f) 21 July 1992 to 31 January 1993 - Quarantine of "Rosemeadow" and "Abbotsford" 336 On 21 July 1992, Mr Smith interviewed Mr Kingsley in relation to the movement, over the long weekend of 6 to 8 June, of roughly 340 sheep from "Abbotsford" to "Rosemeadow". Mr Kingsley acknowledged having trucked those sheep for Mr Perrett on 8 June, and to have jumped the sheep off at the gate just over the Yarra Creek Bridge. This was followed by a formal interview by Mr Montgomery of Mr Perrett, on 23 July, in the course of which he denied moving the sheep over this weekend. Mr Smith said that as a result of this movement having been effected without a permit, Mr Montgomery prepared a quarantine order for "Rosemeadow". 337 When Mr Montgomery arrived at "Abbotsford" for a third time (on Mrs Perrett's account), on 28 July, after delivering a letter from Mr Byrne dated 22 July, wanting to speak of the quarantine requirements, of reports of illegal stock movements, and of the alleged deficiencies in the fencing, he was advised by Mrs Perrett that he would be reported for harassment, and he was ordered not to appear on the property again. 338 In his fax to Mr Byrne following that visit, he advised both of this response, and of his inspections of the fencing, which he said revealed that "the two missing wires required for quarantine security had still not been replaced." 339 Mrs Perrett suggested that, on one of the visits this day, Mr Smith said "I've got more authority than the police you know. I can come in and search your house at any time. You can't hide anything from me." Mr Montgomery had no recollection of Mr Smith being present with him on this day, or of any such remark being made by him. 340 It was his recollection that his first attendance that day was at 8.40 am when he delivered a letter from Mr Byrne, and made some reference to the movement of stock to "Rosemeadow" and of it being under quarantine. He returned, he said, at 9.10 am, after inspecting part of the perimeter fence at "Abbotsford", and added that it was when he made a reference to the fence and quarantine, he was shouted down and threatened with being reported for harassment. 341 The letter mentioned seems to be the one which made reference to the 18 June order in relation to "Abbotsford", and which continued: " The Order was issued under my instructions and following advice that your bank appeared likely to take possession of that property. Its purpose was to confirm that NSW Agriculture holds you responsible for the stock quarantined on Abbotsford, to ensure that you were aware of your options in dealing with these stock and to provide the department with a clear legal base for action in case the stock became abandoned. I understand that you currently retain possession of the property and are taking various steps to ensure that the quarantined sheep do not stray from that holding. In view of the present circumstances I do not propose any action in relation to your failure to comply with the previously issued Order." 342 After restating the obligations of stock owners in relation to the Stock Diseases Act and quarantine, the letter continued: " It appears that it will not be possible to eradicate the lice infestation by treatment in the immediate future. Effective plunge dipping is ruled out because of the condition of the sheep, cold weather and excessive wool length on some sheep. The option noted in the order and further explained in Mr Montgomery's letter of the 19th June remain open to you. I appreciate the difficulties you are currently facing but repeat that NSW Agriculture's prime concern is to prevent the spread of sheep lice infestation from the Abbotsford flock. Your compliance with the terms of the quarantine undertaking and with the provisions of the Stock Diseases Act is required. Advice and assistance on this matter remain available to you through the District Veterinarian and Ranger at Glen Innes Rural Lands Protection Board." 343 On the same date (that is, 22 July) Mr Byrne recorded (in a report to Mr Roth of the Division of Animal Industry) having instructed Mr Montgomery to issue a Form 8 notice for "Rosemeadow" and for "Abbotsford" with a view to their public quarantine. This was said to have followed upon the suspected unauthorised movements of 340 sheep from "Abbotsford" to "Rosemeadow", the last of which occurred in June, a matter confirmed by Mr Montgomery in his evidence at trial. 344 Mr Montgomery issued a 40 day notice on 22 July declaring "Rosemeadow" to be quarantined, by reason of suspicion as to sheep being infected with sheep louse, and he explained, his concerns that more sheep may be moved there. He rejected the proposition that the reason for reapplying the quarantine was the realisation that the Bank had released the grazing section of the property. Rather, their concern was that the Bank was not going to be responsible for the stock. 345 Mr Tucker (formerly Sergeant Tucker) said that around 22 July Mr Montgomery phoned and asked him if he could take over the sheep owned by the Perretts. According to him Mr Montgomery said, "I just want to get rid of them". He said that Mr Montgomery confirmed that the sheep had been quarantined. When he asked if he would be quarantined, Mr Montgomery replied: "no… Put it this way, I am sure your sheep would not be affected." When he asked whether the sheep were lousy or not, Mr Montgomery replied, according to him: "We haven't had a look at them. He is quarantined on suspicion", adding "Ah well, I could almost guarantee… they'll be alright…Don't worry with them, you won't be quarantined". Mr Tucker made contemporary notes of the conversation. 346 Mr Montgomery accepted that he did have a conversation with Mr Tucker "probably" in the terms "stated, although he was not certain whether the approach had come from him, or from Mr Tucker, or whether the arrangement involved a sale in which some money would pass to Mr Perrett. 347 He explained that he permitted the movement of this mob to Narrabri, because he understood the sheep to have been shorn and dipped on 29 April, and that although only 3 months had passed, he was prepared to allow their condition to be checked by Mr Slattery, the Narrabri Board District Veterinarian, to whom he had spoken. He accepted that this had been an irregular movement but allowed it to go ahead on welfare grounds and because the Narrabri veterinarian had been placed on notice. 348 He also made the point that if a flock is quarantined then, for it to be released, every mob within it must be inspected. In other words, it was not permissible to selectively release mobs, although on the occasion of the transfer to Mr Tucker, this was done on welfare grounds and because of Mr Slattery's acceptance of it. 349 In relation to the suggestion that these sheep could have gone to the saleyards rather than be given away, he said: " A. No. If they had gone to the saleyards at Glen Innes a grazier would have bought them unknowingly. Similar to any other graziers or neighbours of the Perretts and that would have meant they had no idea where the things were going. In this way, going to a certain person whom we knew, was going to take them and the district veterinarian being in touch I considered it a satisfactory solution." 350 Mr Tucker said that he spoke to Mr Perrett about the conversation. He was informed by Mr Perrett that he had to get rid of the sheep. When asked why he could not sell them, Mr Perrett replied: " I can't because I am quarantined. I can't move them, I can't shift them from where they are, I can't take them off the place to feed. I can't move them to shear them. They are only going to die here ."

351 When Mr Tucker said that he could not afford them, Mr Perrett replied, "I might as well send them to you rather than have them die here".

352 Mr Tucker said that he received another call from Mr Montgomery asking whether he had thought about taking the Perretts' sheep. He indicated that he would take them on condition that he had sheep ready for sale and did not want them quarantined. He said that Mr Montgomery assured him that he would not be quarantined. 353 On 26 August, Mr Montgomery signed an order for the movement of 510 mixed sheep (no 05701) from "Rosemeadow" to Mr Tucker's property "Smithfield" at Edgeroi, near Narrabri. Mr Montgomery, according to Mr Perrett, did not inspect them, although the order noted that they were to be isolated on arrival and treated for lice. He added that he had expected that Mr Slattery would also advise Mr Tucker of the desirability of keeping them separate until the next shearing. 354 At Mr Tucker's request, they were inspected upon arrival at his property, by Mr Slattery. They were cleared by him on 28 August 1992, of any evidence of lice infestation, and a letter was issued by him to that effect. 355 Mr Tucker described the sheep that came from "Rosemeadow" as being "in fair condition", although some had red skin and patchy wool growth. 356 Mr Tucker said that he received a further call from Mr Montgomery, a week later, asking him to take some more sheep, which they needed "to get rid of". He agreed to take them and another 400 or so sheep arrived. He inspected them and found them also to be free of lice. Mr Montgomery accepted that he may well have requested Mr Tucker to take some further sheep. 357 As he had too many sheep, Mr Tucker made up a truckload of 540 lambs, including those from his own flock, and those he had received from "Rosemeadow" and sold them to a buyer in Dalby Queensland for $4100, that is, at an average of approximately $7.50 per head. 358 These sheep were cleared of lice, and a Health Certificate was issued for the border crossing into Queensland. The Glen Innes Board additionally issued a Transport Stock Statement permitting the movement of the sheep to Queensland. 359 The invoiced cost to Mr Perrett, for the transport of these two consignments of sheep to Mr Tucker's property, was $1473.60. He paid those costs and received no return whatsoever for them. Mr Perrett said that Mr Montgomery required him to pay the freight. 360 Mr Tucker said that he later boxed up some further sheep of his own, with some of the sheep from "Rosemeadow", and sold them through the Narrabri sale yards, between September and November 1992. They were inspected by the Narrabri Board and cleared for sale. He added that he never had any problems with lice in his sheep as a result of them mixing with the Perretts' sheep. 361 As a result of the transfer of the 900 or so sheep to Mr Tucker's property, there were no further sheep left on "Rosemeadow". 362 In the meantime, action continued on the part of Mr Byrne, to place "Rosemeadow" under public quarantine. The reasons given by him related to: " legal questions over ownership and occupancy of Rosemeadow, the suspicion of illegal movements of diseased stock from 'Abbotsford' to 'Rosemeadow', and previous complaints regarding Mr Perrett's failure to control diseased stock ". 363 On 19 August the draft notification was referred to the Minister for signature. The notification was signed by the Minister on 3 September. Additionally Mr Perrett said, "Yarrow Creek" and "LL Ranch" were placed under quarantine, even though they had no sheep on them. Mr Montgomery said that the "Rosemeadow" quarantine had been imposed because of concerns over "illegal movements of diseased stock from 'Abbotsford' to 'Rosemeadow'". 364 On 3 September, Mr Smith reported having made an inspection, by binoculars, of "Nassau" and "Rosemeadow", and of having seen no sheep on them. 365 Mr Perrett said that, despite his subsequent requests to Mr Montgomery to lift the quarantine on "Rosemeadow", the latter indicated that he would not do so until he knew that all of the sheep on "Abbotsford" were clear. 366 In a letter dated 19 October 1992, Mr Montgomery advised Mr Perrett that a muster was required of the sheep on "Abbotsford" to "find out what the current level of infestation was". Mr Perrett was cautioned as to the need to contain his sheep on "Abbotsford", within the boundary fences, and advised that any of his stock found on Kingsgate Road would be classified as trespassing stock and either impounded or destroyed, depending upon their value. The letter concluded with the advice that the Boards' approval for destruction had already been obtained. Mr Perrett's statement that this letter was issued before any sheep had strayed was denied by Mr Montgomery. 367 An advice to similar effect was given by Mr Montgomery to Mr Smith and Mr Lynn, on 26 October calling for prompt action in response to any reports of stray sheep being seen on Kingsgate Road, adjacent to or close to "Abbotsford". Mr Smith was requested to arrange, in advance, a burial site on the Common, in consultation with Mr Thompson of the Local Council. Mr Perrett, however, said that he believed that any sheep that were seen to be at large on Kingsgate road belonged to John Wetherspoon and were not his sheep. Mr Montgomery said that he believed the sheep belonged to the plaintiffs. He was unaware of any other brand or ear tags on them. 368 It was Mr Montgomery's evidence that the "Abbotsford" fencing deficiencies had been a consistent problem since 1991, they not being, in his opinion, sheep proof. 369 On 30 October, Mr Smith issued a muster order for the sheep on "Abbotsford" to be held on 5 November. The report of the inspection that day suggested that two hundred and thirty-six adult Merino and cross bred sheep, and 27 cross bred lambs were "closely inspected by Messrs Montgomery and Smith". No living lice were found and a release of "Abbotsford" from quarantine, 10453, was issued. 370 It was Mr Perrett's evidence, however, that at most only 2 sheep were inspected, and these only cursorily, and with a degree of reluctance or disinterest on Mr Montgomery's part. On his account, Mr Montgomery caught one sheep only after Mr Smith said "you'd better catch one". He added that he "then hardly looked at it". He said that Mr Smith caught a second animal and examined it, and then when he asked Mr Montgomery to do the same, he refused to do so. 371 Mr Montgomery agreed that the quarantine release had been pre-typed because he expected that he would not find lice as he understood the sheep to have been treated. He did not agree with the conversations attributed to himself and Mr Smith, and disagreed that his inspection had been as cursory as they suggested. Mr Smith similarly denied Mr Perrett's account, stating that Mr Meehan had not been present (as Mr Perrett had asserted) and confirming that both he and Mr Montgomery had caught and inspected a number of sheep and found dead lice. 372 It was Mr Perrett's account that after receiving the release, he had a conversation with Mr Smith, in the presence of Mr Meehan, but in the absence of Mr Montgomery to the following effect: " I said: 'The sheep here have not been dipped. They have had no treatment and now they are being released. If they are not infested then all the sheep that went to Moree would not be infested either' Smith said: 'You shouldn't have let them get away at Moree. If you send them into the sale yards, just get the agent to tell me they are yours and you will be right. Charles Kerr (sic), Chairman of the Rural Lands Protection Board, has intervened and told Montgomery to release the sheep. In my opinion, Montgomery does not know what he is doing. The sheep were never infested with lice. I came out the other day and spoke with your wife about old John and the pressure he has been under."

Mr Smith denied this conversation or the issue of any such instruction by Mr Curr. 373 Mrs Perrett suggested that on the day preceding the November inspection, Mr Smith had come to the property with either Mr Montgomery or Mr Lynn and had asked her to muster the sheep, observing, on her account: "Can you muster the sheep for us? We don't believe there are any lice left. Charles Curr, one of the Directors of the Board, says that we have to get this matter cleared up."

She said she refused to muster the sheep, in the absence of her husband, and in view of the order for muster on the following day. Mr Montgomery did not recall any visit on this occasion, or any mention of Mr Curr's involvement. 374 Mr Meehan, who assisted with the muster on 5 November, said that he had been present and that Mr Montgomery caught and inspected only one or two sheep, before assessing them to be free of lice. 375 On 30 November 1992 "Rosemeadow" was released from quarantine by notice gazetted in December 1992. The copy of the Gazette notice was not forwarded to Mr Perrett until 28 January 1993. In the meantime, Mr Perrett said that he had sold 36 lambs from "Abbotsford" at Glen Innes on 7 December 1992, at an average price of $22.75 per head. 376 Mr Montgomery said that prior to September 1991 he had not had any dealings with the Perretts other than on the one occasion when he had called out to "Abbotsford", at Mr Perrett's request, to advise him in relation to two cattle affected by lumpy jaw. Mr Perrett dated this event as occurring in early 1992. He regarded the Perretts as people in need of assistance from the Board, and he denied ever bearing them malice or ill will. In his affidavit he said that he had never acted with any intention of harming them; rather, he said, he had "acted in good faith and with the welfare of the animals in mind". Moreover, he said, he considered that he had gone out of his way, on occasions, to assist them where he could. 377 It was Mr Montgomery's account that they had been dealing with a "problem of lice infested sheep in large numbers" being returned suddenly from Moree to "Rosemeadow" and "Nassau" at a time "of drought, increasingly cold weather and insufficient feed supplies", in circumstances where there were no dipping facilities on these properties, and there was a need for the perimeter fences on "Abbotsford" to be upgraded before the sheep could be moved there and detained securely enough to be dipped and returned. 378 He said that he was reluctant to compromise on a program of quarantine and stock movement for treatment of lice, although he conceded that he had allowed some sheep to be trucked to Mr Tucker's property. Those sheep he believed were likely to have been those that had been moved to "Rosemeadow" from "Abbotsford", and which had the appearance of having been plunge dipped. 379 The condition of the Perretts' sheep, he said, was poor, and that in shooting those that were destroyed, the intention had been to put them out of their misery, in circumstances where there was no one looking after them, where there was no other viable alternative, and where the decision to do so had been made by Ms Harmer. 380 He added that he found communication with the Perretts very difficult, in that they appeared evasive of the authorities trying to contact them. He also said that he had endeavoured to be friendly and helpful when he met them, and did his very best to carry out the lice treatment programme "as expeditiously as possible". In this regard he cited, as examples of his attempts to help them, the letters of 19 and 27 June in which the options were explained, and an occasion when, over a cup of tea, he claimed to have made suggestions as to how they might address their monetary problems. 381 Similarly to Mr Montgomery, Mr Smith said that he had been concerned about the plaintiffs' fences, which he described as possibly being the worst boundary fences he had ever seen, with rotted posts, and missing wires, whereas the other fences in the area were in "excellent condition and sheep proof." The danger in the plaintiffs' sheep escaping, he said, was that they would rub up against each other through the fences and transfer their lice. 382 It was Mr Smith's evidence that the plaintiffs' sheep tended to leave their properties because the fences were no good, and because the properties were grossly overstocked. He said that Mr Perrett had not objected to the orders to upgrade the fences, and added that they could have been repaired using existing material on the property, including that taken from internal subdivision fences. 383 He also said that he considered his relationship with the Perretts to have been amicable throughout, and not to have been one in which there had been any arguments, aggression, or bad blood between them. He said that he had tried to assist them during their quarantine, in finding buyers for their sheep, both in NSW and in Queensland. He denied having been motivated by malice or bias towards them, and he made the point, several times in his cross examination, that he had been acting under the direction of Mr Montgomery who held the office of District Veterinarian, and needed his permission to release sheep from quarantine. 384 Mr Perrett strongly disputed the claims of Messrs Montgomery and Smith to having acted fairly and in the interests of he plaintiffs. Moreover he asserted that the "Abbotsford" fencing had held sheep prior to their trip to the Moree TSR, that fences between his property and the neighbours were stock proof, that there were sound internal fences, and that 100 acres of the property were completely sheep secure. He said that the areas of fencing, which Mr Smith demonstrated in the photographs as insecure, were, on his account, sound, any apparent deficiency being due to Mr Smith applying undue force to them. Mr Meehan was asked, at the trial, as to his opinion of the "Abbotsford" boundary fences. He indicated that while he would not say the road fences were good, they were "serviceable", by which he meant "stockproof".

3. The Problem of Lice Infestation and its Management. 385 It was accepted that body lice are a serious problem for the sheep industry, that they spread easily and quickly among a mob of sheep, and that they are treatable by dipping. It is beyond argument that Rural Lands Protection Board rangers and inspectors, and the Department as a whole, have an important role to play in detecting lice in sheep, and in ensuring their safe quarantine, in circumstances where there is a risk of spread to uninfected flocks. 386 A number of documents, comprising Departmental instructions, and Agfacts publications, which were tendered in the proceedings, and which lay down precise instructions and/or provide useful information concerning lice infestation, show this to be the case. The relevant passages in the documents, which were current at the time, require mention. 387 The Division of Animal Health circular, 90/40, provided: " 4.4 ACTION WHEN LICE INFECTED SHEEP ARE DETECTED ON A STOCK ROUTE. When a Ranger issues a permit to a Drover in the presence of the sheep, they must be inspected (for footrot and lice). Wherever practical, travelling sheep should be inspected at least once while they are in each district. 4.4.1 When a mob of lice infected or suspect infected sheep are found on a TSR - A detention notice is to be written out by an inspector detaining the sheep and if necessary ordering their relocation to a more secure area. This area must be large enough to accommodate the stock in compliance with animal welfare requirements but it is the owners responsibility to ensure they are provided with adequate feed and water. An order for movement should be issued as soon as possible: …………………. 4.4.2 Identification of Diseased Sheep If any sheep are individually examined and found to be infected then they should be marked with scourable yellow paint so they can be identified if need be in the future. Every endeavour should be made to show the person in charge of the diseased sheep that are examined. 4.4.3 Stray Sheep in a Travelling Mob If stray lice infected sheep get into a travelling mob then the whole mob must be considered to be lice infected and must be ordered off the travelling stock route.

4.4.5 When can formerly lice infected Sheep return to the Stock Route. In determining when sheep can return to the stock route following treatment, inspectors must consider the length of wool on the sheep at the time of treatment. For sheep treated off shears (within 24 hours) with a backline treatment or long-woolled sheep (sheep with more than 6 weeks wool) treated with an approved long wool treatment, they may be allowed back on to the Stock Route following a clean inspection conducted 3 months after treatment. For sheep with up to 6 weeks wool on them, treated through a plunge or shower dip with an approved lousicide, they may be allowed back on to the Stock Route following a clean inspection by an inspector 1 week after treatment. The inspector must also be satisfied that the sheep have been dipped in an approved fashion capable of eradicating lice, i.e. the dip chemical is at the correct strength and the sheep are thoroughly wet. The inspector should indicate that his inspection is not a guarantee of freedom and lice may become evident in several months time. " 388 It was established that the standard conditions for stock on a TSR, at the relevant time, included the following: " A walking permit must be obtained from a Ranger or Permit Officer prior to stock moving onto a TSR and must be retained by the person in charge of the stock so as to be available for sighting at all times upon request. The following conditions apply: … (2) sheep must be inspected free of lice, footrot or any other disease by the Ranger prior to entering TSR

(4) Agistment charges will be levied on all stock travelling less than the required distance. … (6) All conditions of the Rural Lands Protection Act and Stock Diseases Act must be adhered to. … (9) Stock may be counted and checked for disease at any time. … (10) All stock that die within a TSR, public road, or access road must be removed and disposed of in a manner as required by the Ranger ." 389 In addition to the Agfacts documents next mentioned, which were primarily intended for producers, there existed, at the relevant time, a Sheep Lice Control Policy Circular 89/34, published on 27 July 1989, which was distributed to PP Boards, Veterinary Officers and Rangers/Inspectors, and which was issued under the hand of the Chief of the Division of Animal Health. After noting the economic losses to the sheep industry, associated with sheep lice, which were and are potentially significant, and the development of a LiceKill Advisory Programme, this document noted, relevantly: " 1.2 The Aims of the Lice Control Policy The Lice Control Policy aims to:- * reduce the prevalence of lice infested properties in NSW by informing graziers of cost effective methods of controlling sheep lice in their flocks and thus reduce economic losses. * reduce the spread of lice from infected properties and public places, e.g. saleyards and stock routes by providing sound advice on the prevention of reinfestation of flocks, and by maintaining surveillance of public places and taking action as required under the Stock Diseases Act. * Promote the efficient use of chemicals in sheep with the long term object of eradicating lice and eliminating the need to apply chemical to the wool of sheep." 390 In relation to diagnosis it records:- " 2.2 Diagnosis. In general, the effects of Sheep lice Infestation are not seen until sheep have 3 to 4 months wool. Light infestations are very difficult to detect in sheep with less than 3 months wool. The best time to examine a flock for lice is just before shearing. … Body lice are diagnosed by a careful examination of sheep, particularly those showing signs of fleece derangement. At least 5 sheep in any mob should be inspected. The wool should be parted in at least 5 areas on each side of the sheep. … The total number of lice seen is divided by the number of partings to arrive at an estimate of the degree of infestation viz: Light less than average of 1 per opening Medium an average of 1-5 lice per opening. Heavy an average of more than 5 lice per opening. Little confidence can be placed in a diagnosis of freedom from lice on an individual sheep. Careful pen trials have shown that it is virtually impossible to detect infestations of less than 400 lice per sheep. Accordingly diagnosis must rely on flock or mob examination. 2.3 Differential Diagnosis

Other cause of fleece derangement which must be considered are: - · grass seed infestations. · fleece rot. · itchmite infestations. · dermatophiliosis. · tender fleeces. · other parasitic infestations including Demodex and Chorioptes. · Ked. · Flystrike. NB sheep can have more than one condition at once." 391 In relation to the critical aspect of regulation, the circular provided:- " 4. REGULATORY ACTIVITIES Regular activity is designed to protect the grazing industry from actions, which place clean stock and properties at risk. It aims to reduce the risk of spread to clean flocks and assist in the control or eradication of the disease from infested flocks. IT IS IMPORTANT THAT THE POLICY BE UNIFORMLY APPLIED IN ALL AREAS. In general, priority should be given to inspection of sheep on Travelling Stock Routes and at store sales with lower priority for fat sales. Inspection of sheep at on - property sales e.g. clearing or circuit sales - should only be carried out where there is firm suspicion of lice. The RDVS will be responsible for seeing the policy is implemented uniformly in his region and in a manner consistent with the policy document. 4.1 Powers Under the Stock Diseases Act

[After noting the main sections of the Act which apply to the lice policy, the document continued]: 2. Any mob where lice is detected should immediately be detained on the TSR by a Form 5A. An OFM should be issued as soon as possible ordering the sheep to: (a) an abattoir for slaughter or (b) back to the property of origin or (c) to the property of destination, or (d) to a different property provided approval of the VI/VO is obtained and arrangements made for the treatment of the sheep. 3. Wherever possible sheep should be moved by road transport. It may be necessary to walk the sheep to loading facilities , or more practical to walk the sheep back to their place of origin or onto their destination. In these situations sheep can be walked on the Stock Route provided - (a) approval of VI/VO is obtained; and (b) the neighbours adjoining the TSR are notified; and (c) the inspector is satisfied that the Drover can adequately control the sheep. The distance the sheep are permitted to move is at the discretion of the VI/VO and will depend on the degree of infestation and the risk to adjoining holdings. …

5. The VI/VO should ensure appropriate action is taken in accordance with 4.8. 6. Notification of lice found in travelling sheep should be given to land holders adjoining the route travelled in that Board. The VI of the Board previously travelled by the sheep should be notified so that similar action can be taken if considered appropriate. 7. The VI/VO may consider it necessary to close the Stock Route until all stray sheep are removed. Such decision would require withholding of permits for the affected route and advice to local land holders. 8. The VI/VO must ensure the owner of the stock is contacted to provide advice on lice control.

4.7 Reporting Lice Detections In every situation where an inspector detects lice and any regulatory action is undertaken (e.g. warning letters, quarantine, OFM, prosecutions) a report must be submitted to the VI/VO/DVS/RDVS." 392 After dealing with the possible offences which may be committed, the document continued:

" 4.9 Quarantine of Infested Properties The quarantining of sheep flocks will be at the discretion of the local VI/VO. When infestation is detected on a property, owners should be contacted by Departmental or PP Board staff to offer guidance and assistance. Difficulty may arise with some owners who, despite advisory effort, are not willing to control either the lice infestation or their sheep. Where this constitutes a high risk to other graziers, quarantine is an option. Quarantine will only be imposed in situations where there is a perceived high risk to others, usually where sheep are heavily and obviously infested, and the owner is not prepared to control the infestation. Such heavily infested sheep may be a threat to neighbouring sheep, even if they have not actually got through the fence into neighbouring sheep. Quarantine should also be considered for second and subsequent offenders in sale yards and on stock routes and in cases where sheep are allowed to stray if the sheep are heavily infested with lice. The property should be quarantined under a Form 6 undertaking or a Form 8, with an Order issued on a Form 9 to undertake an eradication program. Quarantine should continue for at least three months and up to six months post treatment to ensure that the treatment has been effective and the lice infestation eradicated. Quarantine will only be released following an inspection of all mobs on the property. " 393 Three Agfact documents were also tendered in the trial (Exhibits C, 6 and 7). The third editions (exhibits C and 6) indicate that sheep body lice are a "common and costly pest to wool production", and that their eradication depends on producer cooperation. They are described in the document in their adult form as being "about 1.88 millimetres long and about 0.6 millimetres wide. They have a broad reddish head and a pale brown abdomen with slightly darker brown stripes." It noted that they do not like light and move rapidly into the fleece when the wool is parted. This Agfact document continues: " Most lice live close to the skin but 30 - 50% of the total population can be removed at shearing. After shearing many lice die due to exposure to heat or cold or rain. However, some lice survive in areas of longer wool left on the sheep. The lice population builds slowly following shearing until sufficient length of wool - eg three months - is available to afford protection from the elements. However, it is unlikely that the infestation will be detected until the population growth enters the rapid increase phase about 5 months after shearing. Lice numbers rise quickly at this time, unless conditions are particularly hot. It takes 5 - 6 months for newly infested sheep to develop noticeable symptoms of an infestation. When a sheep has developed a light infestation of lice - about one louse per 10cm parting of the wool - there are already about 2000 lice present on the sheep. It takes a further 2 - 3 months for severe wool derangement to occur. These times are approximate and may be longer when residual chemical is present in the wool, or if the sheep are shorn. The time taken to show symptoms of lice infestation depends on the size of the population and the sensitivity of the sheep to irritation caused by lice. Lice numbers increase at a greater rate on sheep that have: · a low immune system, · are in poor condition, or · are infected by disease …

Introduced sheep from any source should always be suspected of carrying lice. Isolate all suspect mobs of sheep until you have treated them or you are sure that they are free of lice through regular inspections over 6 months. Rams purchased for breeding purposes, like any other purchased sheep, should be suspected of having lice. They are not cleared until successful treatment or a long period - say 6 - 9 months - of isolation and inspection has provided no evidence of lice infestation. Inspect any stray sheep for evidence of lice infestation. If the strays are found to be lousy, then the mob they are running with must also be considered lousy and an eradication program put in place. Notify the owner of the strays and make arrangement for their return to the owner's yards for treatment. Do not tip them over the fence to reinfest your neighbour's flock. … HOW BODY LICE AFFECT SHEEP Lice feed on dead skin, secretions and bacteria normally found at the surface of the skin. They do not suck blood. They do not eat the wool fibres but do cause a thickening of the skin. Their presence irritates the sheep, causing the sheep to bite, scratch and rub on trees and fences. This damages the wool, causing breakage and cotting of the fibres. Sheep infested with lice have a ragged appearance - often with tags of wool hanging from the fleece. Newly infested sheep are very sensitive to lice. Others, which have had lice for long periods, can develop quite severe infestations but show few signs. Often lousy wool has a yellow colour due to a heavy suint and skin secretions and shearers claim it has a distinctive smell. … THE COSTS OF SHEEP LICE INFESTATION There are two major costs of having lousy sheep: Lost production - · Lousy sheep cut about 10 per cent less wool. · Cotted wool is worth about 10 per cent less than non- cotted wool. · Lousy sheep may be denied access to saleyards, stock routes, and agistment. Treatment - · Cost of insecticide, labour and time away from other duties. · Losses associated with dipping, such as arthritis, lumpy wool, dip stain. … HOW TO FIND LICE If lice are suspected, examine sheep that show signs of wool derangement. Lice are often most numerous on sheep that are not doing well. If you need glasses to read, you will need them and good lighting to see lice. A policy of regular inspection of sheep for lice and recording the findings is best. Lice congregate in colonies and may be missed if the wool is only opened at one or two places. Select at least 10 sheep showing some signs of fleece derangement or those sheep at the tail of the mob. Examine at least five sites on each side of at least 10 sheep. Record your findings so that subsequent inspections can be compared. If no lice are seen, then either look at another 10 sheep or reinspect the flock in 3-4 weeks. Lice in small numbers are extremely difficult to find on sheep. At least 400 to 500 lice per sheep must be present before they can be detected by inspection of unshorn sheep. Inspections can be carried out at any time sheep are yarded and especially at crutching and shearing. The best time to see lice is during, or immediately after shearing. Pay particular attention to the neck folds and longer wool on the neck. In woolly sheep, lice can be found anywhere along the side, neck, back and rump. It is important to remember that the visual wool damage due to lice depends: · not only on the number of lice, but also on, · the sensitivity of sheep to lice, and · the length of wool. Wool damage is usually not obvious until there is at least three months growth of wool and a significant number of lice. … Remember, if one louse is found on one sheep in a mob, then the whole mob is considered lousy. " 394 The earlier edition (2nd Ed 1987) was in similar terms, although it noted additionally that in 1986, more than 25% of NSW flocks were lousy, and it made reference to the new LICEKILL Program which had been developed by the NSW Department of Agriculture, Pastures Protection Boards and Industry groups, and which was aimed at improving profits for producers. It noted that: "Quarantine for lice infestation is no longer automatic. However, it will be imposed for at least three months after treatment on seriously affected flocks found to be a continuing risk to other producers. Advice will be given to neighbours if they are considered to be at risk from known infested flocks. Legislation exists to help sheep producers reduce the spread of lice infestation. This legislation is designed to protect sheep owners against careless or wilful exposure of their sheep to lice carried by sheep belonging to irresponsible owners. Under the legislation it is an offence to allow infested sheep to be put in a public place such as saleyards and stock routes. If infested sheep are allowed into a public place, many others are put at risk. " 395 It described the adult louse as being "creamy white in colour", although a photograph included in that document does show the banding described and depicted in the third Edition. It noted that: " There are other causes of irritation such as grass seed, fleece rot and itchmite. Careful examination to eliminate lice will enable you to know if grass seed or fleece rot are involved. Veterinary assistance will be necessary for identification of itchmite " 396 In relation to treatment this edition, being the one current at the relevant time, advised: "Many products are available to suit your specific needs for treatment: · Immediately Off-shears. · short wool - two to six weeks off-shears. · long wool - up to nine months off-shears. Treatment within 6 weeks of shearing is the most effective method of eradicating lice. Treat all sheep with an approved dip or other approved licicide. Shearing may be advisable to ensure that the insecticide penetrates fully. If you have to treat your sheep 'in the wool', check with your veterinary advisor. All sheep must be treated. This means that mustering must be carefully carried out to ensure that no sheep escape treatment." 397 The Lice Control Policy adopted by the Glen Innes Rural Land Protection Board at the relevant time, noted: " The local policy acknowledges the serious economic effect of sheep lice infestation occurring in previously free flocks. It is not an offence for a grazier to own a flock of lice infested sheep. However, when lice infested sheep from such a flock are found straying on public land including stock routes so as to pose a threat to neighbouring flocks, action is taken to prevent the spread of lice infestation. Measures available under the Stock Diseases Act, include impounding diseased sheep, issuing warning letters to the owners of such sheep that further breaches of the Act will be followed by prosecution, actual prosecution with a penalty of up to $10,000 and the quarantining of sheep lice infected flocks. The quarantining of properties is only rarely carried out and is done when there [is] failure on the part of the owner to control both the lice infestation after being advised how to do so and where the straying of his sheep presents a threat to the owners of neighbouring properties. Complaints from neighbours can prompt the various actions including placing the property in quarantine. Impounding all lice infested sheep found on public land, slaughter and burial are options open to Inspectors under the Stock Diseases Act. Where lice infested sheep on a quarantined property are uncared for, inadequately fed, seem to be deteriorating in condition with evidence of recent deaths and it is considered the sheep are of no economic value, the welfare of the sheep becomes of over-riding importance and slaughter and burial becomes the preferred option. Once the latter circumstances apply, treatment by dipping may not be possible, limiting factors being the condition of the sheep; i.e. too weak to stand the dipping and whether they can be segregated in a secure place after treatment for long enough to ensure that the lice infestation is eradicated. Even if a secure place for isolation is available, transport to such a place may be a limiting factor. In the end, slaughter and burial in such cases is the humane preferred option. " B. THE STATUS AND POWERS OF THE DEFENDANTS 398 The resolution of the issues identified depends not only upon an evaluation of the evidence led in the trial, but upon a determination of the relevant legal principles concerning each of the bases of claim pursued by the plaintiffs. It is convenient to establish those principles before proceeding to record my factual findings and conclusions, as to whether any of those claims have been made good.

1. Legal Status of the Defendants 399 It was admitted, for the purposes of the trial, that at the relevant time Mr Williams and Mr Smith held office, with their respective Boards, as Rangers, appointed pursuant to s 24 of the Rural Lands Protection Act 1989, and as Inspectors appointed pursuant to s 6 of the Stock Diseases Act 1923. 400 Mr Montgomery, it was accepted, held office as a District Veterinarian, appointed by his Board, pursuant to sections 22(2) and 77(3) of the Rural Lands Protection Act 1989, and as an Inspector either by reason of his appointment as such under s 6 of the Stock Diseases Act, or by reason of his appointment as a District Veterinarian, empowered to exercise the powers of an inspector appointed under that section. He was also a registered Veterinary Surgeon under the Veterinary Surgeons Act 1986.

2. Their Powers and Duties 401 The legislation relating to the discharge of the functions and/or the duties of the Boards, and their agents or employees, may next be noted.

(a) The Rural Lands Protection Act 1989 402 The Rural Lands Protection Act 1989 commenced on 1 July 1990. It was amended, on several occasions, in ways that are not relevant for the present case, before being repealed by the Rural Lands Protection Act 1998, with effect from September 2001. The Rural Lands Protection Regulations 1990 similarly commenced on 1 July 1990. 403 Pursuant to that Act, and Regulations, Rural Lands Protection Boards were established (or continued in existence, if they were a Pasture Protection Board) as corporate entities, as a result of the combined effect of sections 4(1), 6(1), 6(2) and 6(5). 404 They were given powers and functions in relation to:

(a) the provision of animal health services: section 9(2)(b)

(b) the care, control and management of travelling stock routes: sections 9(2)(c), 80 and 81;

(c) the suppression and destruction of noxious animals and insects: sections 9(2)(e), 127 and 141;

(d) the levying of annual "general" and "animal health" rates: section 53;

(e) the issue of transported stock statements (for vehicular transportation of stock on public roads or travelling stock reserves): section 89 and Regulation 64(3);

(f) the issue of (f.1) walking and grazing permits: sections 92 and 93; (f.2) stock holding authorities: section 95. (f.3) stock licences: section 100.

(g) the impounding of abandoned stock: sections 110 and 111. 405 In connection with the exercise of animal health functions within their districts, Boards were empowered to exercise the "Ministerial" powers conferred by the Stock Diseases Act 1923: section 77(1) Rural Lands Protection Act 1989. 406 Subject to any contrary Ministerial direction, Boards were obliged to appoint a qualified person as a District Veterinarian, with the prior approval of the Chief of the Division of Animal Health (sections 22(2) and 77(3)), and a Ranger, with the approval of the relevant Regional Director of Veterinary Services (sections 24(1), 24(2) and 24(5)). 407 A District Veterinarian appointed by a Board:

(a) had the power and responsibility to implement animal health programs within the relevant district: section 78(b);

(b) could exercise any of the powers conferred on an inspector by the Stock Diseases Act 1923: section 78(a);

(c) could direct "rangers" in relation to animal health matters, and in certain circumstances, other matters: sections 77(4)(c), 79(2)(b) and 24(7); and

(d) was subject to the control and direction of the Chief of the Division of Animal Health: sections 22(4) and 78(d). 408 A ranger appointed by a Board:

(a) was subject to the supervision of the District Veterinarian in relation to animal health matters: sections 24(7) and 79(2)(b);

(b) could inspect stock being transported on a road or on a travelling stock route: sections 88(6) and 90(7);

(c) could, with prior approval, order a stock muster: section 203(1);

(d) could issue various permits and licences: sections 89 and 95. 409 Under other provisions of the Act:

(a) the use of travelling stock routes required the issue of a relevant permit (or order under the Stock Diseases Act 1923): sections 85 and 90;

(b) vehicular transportation of stock on public roads, or travelling stock routes, required (section 88) the issue of a transported stock statement (section 89), a permit (sections 92 and 93), a stock holding authority (section 95) a stock licence (section 100) or an order or permit under the Stock Diseases Act 1923: section 88(2);

(c) a Board was only able to refuse to issue a walking permit on specified grounds (relating generally to the condition of the proposed route), if it was of the opinion that the stock were suffering from a contagious disease, or upon other grounds which it thought were reasonable: sections 92(6), 92(7) and Regulation 71(5);

(d) it became an offence to leave an animal carcass on a travelling stock reserve: section 106(1) and Regulation 88.

(e) stock unattended on a public road were to be treated as abandoned and impounded: sections 109(2) and 111(1). 410 Employees and agents of Boards were given the immunity from liability conferred by Clause 4 of Schedule 1 of the Act. It provided that: " No matter or thing done by a board, or any director of a board, or by any person acting under the direction or authority of, or with the concurrence or approval of, that board, subjects a director of that board or a person so acting, to any action, liability, claim or demand, if the matter or thing was done in good faith for the purposes of this or any other Act."

(b) The Stock Diseases Act 1923 411 This act was amended at various times during the period with which this matter is concerned, but not in any relevant respect. The Stock Diseases Regulations 1936 were similarly amended but not in any relevant respect. 412 The Act applied to any disease proclaimed under s 4(1) of the Act. At all relevant times, it was accepted, "sheep lice infestation" was a disease proclaimed pursuant to s 4(1) of the Act, and as such it was a disease in respect of which the whole of the Act, other than sections 9, 20(1)(c) and 20B applied (see Exhibit 11). 413 The Act authorised the Director General of the Department of Agriculture to appoint inspectors: section 6. Inspectors so appointed had the power to:

(a) enter premises for the purposes of the Act: sections 7(1)(a);

(b) to muster, detain and test diseased stock (including stock the inspector " suspects to be infected" ) and order their return to their place of origin: sections 7(1)(a), (bi), (c), (d), (e) and Regulation 38B and Form 4;

(c) in relation to infected stock, (including stock the inspector " suspects to be infected "): (i) to order their treatment: section 8(1)(a); (ii) to order their destruction: section 8(1)(b), 23(1)(o) and Regulation 28(c), 38B and Form 4; (iii) subject to prior approval, to declare 40 day quarantine periods and to require treatment accordingly: sections 8(1)(c), 8(3) and 14(4); (iv) to require stock in a declared quarantine area to be confined to the owner's property: (v) to do the work required by a notice given under section 8(1)(a): section 18. (d) to seize stock moved contrary to the provisions of the Act: section 19(1).

(e) to issue permits for the movement of stock from quarantined areas: section 23(1)(b) and Regulations 33, 35A and 74. 414 Inspectors were empowered to vary or revoke any orders they had themselves made: section 21(1A). Otherwise, orders could be varied or revoked only by the Chief of the Division of Animal Health, or by another inspector authorised by him: section 21(1) and (1A). 415 The expression "infected", when used in relation to stock, was defined to include stock affected by a disease to which the Act applied, and also stock that had been in a flock or herd containing diseased stock, as well as stock that had been on land containing diseased stock, within the preceding 12 months: section 3. 416 The expression "disease" was defined to include any parasite to which the Act applied. 417 The Act made it an offence to:

(a) contravene any order, notice, or undertaking made, served or given under the Act: section 20H;

(b) travel diseased stock along any public road or travelling stock reserve, except pursuant to an order under section 8(1)(b): section 20C(2) and 20C(3);

(c) sell diseased stock: section 20B. (However, this section did not apply to stock infected with sheep lice, because the section 4 proclamation for sheep lice did not apply to this section.)

(d) leave the carcass of any infected stock within 1 km of a public road, public place, creek or water hole: section 20E;

(e) to provide false information to an inspector in relation to (suspected) diseased stock: section 7A(1);

(f) to give false or misleading information to a person engaged in the administration of the Act: section 20J(1). {After 1.12.91 there was a further offence of making false statements, that stock being sold were free of disease: section 20J(2)}. 418 The Minister (and a Rural Lands Protection Board within its area) was empowered to:

(a) order the destruction of infected stock: section 17(1);

(b) require treatment of infected/quarantined stock: section 14(6);

(c) require fencing work to be carried out within quarantine areas: section 13(1);

(d) direct the disposal of the proceeds of sale of seized stock: section 19(3).

(e) declare a quarantine area " on account of the presence or suspected presence of any disease ": section 10;

(f) accept an undertaking from the owner of diseased stock, instead of imposing quarantine: section 11.

(c) The Prevention of Cruelty to Animals Act 1979 419 There were no material amendments to this Act, or to the Prevention of Cruelty to Animals (General) Regulations 1981, during the period with which this case was concerned. 420 The Act provided, relevantly, that any registered veterinary surgeon could:

(a) enter land accompanying the holder of a " prescribed authority " and inspect animals: section 25.

(b) authorise the destruction of animals where the veterinarian was of the opinion that it was cruel to keep them alive: section 26A. 421 It further provided that, if a registered veterinary surgeon exercised the section 26A power to destroy animals, he or she was not liable in damages "in respect of" the destruction of the animal: section 32A. 422 Clause 14 of the Prevention of Cruelty to Animals (General) Regulation 1981 prohibited the transport of animals, including sheep, in vehicles that did not afford adequate headroom. Clause 16 of the Regulation required accurate records to be kept of the date, time and numbers of animals transported for "sale, slaughter or agistment" and also of the number of any animals killed or injured in the transport.

C. THE CAUSES OF ACTION ALLEGED 423 The plaintiffs' case in relation to the critical events is framed in various ways.

(a) September 1991 Williams Lice Inspection. 424 Negligence is alleged in relation to the finding of Lice, and the issue of a quarantine notice. Misfeasance in a public office is alleged in relation to the issue of the quarantine notice, the ordering of the return of the sheep to Glen Innes, and the refusal to allow the sheep to be dipped and/or agisted at Moree. Intimidation is also alleged in relation to the order for the return of the sheep to Glen Innes, and the refusal to allow them to remain at Moree. The relevant tortfeasor is alleged to be Mr Williams.

(b) The Quarantine at Glen Innes 425 The plaintiffs assert negligence and misfeasance in a public office against Mr Smith and Mr Montgomery, in relation to their alleged failure to inspect the sheep after their arrival back at Glen Innes, in relation to the issue of further quarantine notices on 18 November 1991, and on 11 and 14 February 1992, and in allegedly refusing to allow the movement of sheep to properties where they could be shorn and dipped.

(c) The Fence Upgrade Orders 426 Negligence and misfeasance in a public office are alleged against Mr Montgomery in relation to his requirement for the "Abbotsford" fences to be upgraded and in relation to the refusal to allow stock to be moved to that property, from "Nassau" and from "Rosemeadow" until the fences were attended to.

(d) The Second Dipping 427 Negligence and misfeasance in a public office are alleged against Mr Montgomery in relation to the alleged incorrect mixing of the concentrate and water used on the occasion of the second dipping, and the requirement that the sheep be dipped.

(e) The destruction of Sheep on "Abbotsford" in July 1992 428 The torts of trespass to land, trespass to goods and misfeasance in a public office are pursued against Mr Smith and Mr Montgomery. Similar torts were alleged against Mr Smith for subsequent acts of this kind, in relation to the destruction of sheep on the property in July 1992.

(f) Toxic Fodder - July 1992 429 The plaintiffs allege that both Messrs Smith and Montgomery committed the torts of negligence, trespass to goods, trespass to land and misfeasance in a public office, in relation to the taking of hay onto "Abbotsford", and the feeding of it to the sheep on the property. 430 As I have observed, the tort of conspiracy originally pleaded against Messrs Smith and Montgomery, was abandoned. While the counts in negligence were maintained, the plaintiffs made it clear that their primary claim was that of misfeasance in a public office. The liability of the Boards and of the Department was alleged to arise vicariously. No claim was made against Miss Harmer, or against the RSPCA, in relation to the destruction of sheep, or in relation to the provision of fodder. 431 In relation to the immunity clause, which the plaintiffs accepted to be potentially applicable to each of the causes of action pleaded, they asserted that the relevant acts were not done in good faith, thereby removing it as an answer to their various claims. 432 I turn next to the elements of the causes of Action alleged and, in particular, to the question whether any of the defendants owed a Common Law duty of care.

(i) The Common Law Duty Of Care 433 The plaintiffs allege that a Common Law duty of care was owed in respect of the exercise by the inspectors and rangers of their powers, namely a duty to exercise reasonable care to avoid occasioning them financial loss. 434 As a general rule, the ordinary principles of the law of negligence apply to public authorities, rendering them liable for any damage caused by a negligent exercise or performance of a Statutory power or duty: Sutherland Shire Council v Heyman (1985) 157 CLR 424 and Graham Barclay Oysters Pty Ltd v Ryan (2002) 77 ALJR 182 at para 12 per Gleeson CJ. 435 However, there are circumstances where that general rule needs to give way to public policy considerations, or to the interpretation of the Statute which creates or confers such a duty or power. It is with that question that this aspect of the present case is concerned. 436 In Yuen Kun Yeu v Attorney General of Hong Kong [1998] AC 175, the Privy Council gave consideration to the question of the special relationship, which had been described in Smith v Leurs (1945) 70 CLR 256, and found to exist in Dorset Yacht Co Ltd v Home Office [1970] AC 1004. It was relied upon by the plaintiffs as giving rise to a duty of care, in relation to the exercise of the statutory power, which was reposed in the Commissioner of Deposit-taking companies, to register, ensure compliance, or to deregister such a company which had accepted deposits and had gone into liquidation. A statement of claim filed by some investors, alleging a breach of duty owed to them, was held to have been properly struck out, on the basis that no such duty was owed. 437 In the judgment of their Lordships delivered by Lord Keith of Kincell, it was said (at 196): "In contradistinction to the position in the Dorset Yacht case, the commissioner had no power to control the day-to-day activities of those who caused the loss and damage. As has been mentioned, the commissioner had power only to stop the company carrying on business, and the decision whether or not to do so was clearly well within the discretionary sphere of his functions. In their Lordships' opinion the circumstance that the commissioner had, on the plaintiffs' averments, cogent reason to suspect that the company's business was being carried on fraudulently and improvidently did not create a special relationship between the commissioner and the company of the nature described in the authorities. They are also of opinion that no special relationship existed between the commissioner and those unascertained members of the public who might in future become exposed to the risk of financial loss through depositing money with the company. Accordingly their Lordships do not consider that the commissioner owed to the plaintiffs any duty of care on the principle which formed the ratio of the Dorset Yacht case. To hark back to Lord Atkin's words in Donoghue v Stevenson there were not such close and direct relations between the commissioner and the plaintiffs as to give rise to the duty of care desiderated." (References omitted). 438 Additionally, their Lordships noted that there was much force in the public policy argument, which had found favour in the Court of Appeal, in the case next mentioned (Hill v Chief Constable of Yorkshire), to the effect that if a duty of care in negligence was owed, then there would be a risk of the work of the Commissioner being seriously inhibited by the need for that officer to be constantly looking over his shoulder for prospective claims. 439 In Hill v Chief Constable West Yorkshire [1989] AC 53, the House of Lords held, dismissing an appeal from the Court of Appeal, that a statement of claim alleging negligence on the part of police, in the conduct of their investigations into a series of murders against young women, had been properly struck out. As a matter of public policy, the House of Lords held that police were immune from actions for negligence in respect of their activities in the investigation and suppression of crime. Further, it was held, that while individual police officers could be liable in tort to persons injured as a direct result of their acts or omissions, there was no general duty of care owed by them in relation to the exercise of their duties, save where their failure had created an exceptional added risk, different in incidence from the general risk to the public at large, so as to establish a sufficient proximity of relationship between them and victims of crime. Lord Keith observed, in relation to the public policy question (at 63): "Potential existence of liability [such as that alleged in the present case] may in many instances be in the general public interest, as tending towards the observance of a higher standard of care in the carrying on of various different types of activity. I do not, however, consider that this can be said of police activities. The general sense of public duty which motivates police forces is unlikely to be appreciably reinforced by the imposition of such liability so far as concerns their function in the investigation and suppression of crime. From time to time they make mistakes in the exercise of that function, but it is not to be doubted that they apply their best endeavours to the performance of it. In some instances the imposition of liability may lead to the exercise of a function being carried on in a detrimentally defensive frame of mind. The possibility of this happening in relation to the investigative operations of the police cannot be excluded. … The manner of conduct of such an investigation must necessarily involve a variety of decisions to be made on matters of policy and discretion, for example as to which particular line of inquiry is most advantageously to be pursued and what is the most advantageous way to deploy the available resources. Many such decisions would not be regarded by the courts as appropriate to be called in question, yet elaborate investigation of the facts might be necessary to ascertain whether or not this was so." 440 In X (Minors) v Bedfordshire County Council (1995) 2 AC 633 the House of Lords was concerned with a series of claims brought against public authorities. They included claims by various plaintiffs arising out of alleged breaches of statutory and common law duties on the part of the Council, in failing to act in relation to incidents of parental abuse and neglect. A second series of claims comprised those brought against a local authority, an area health authority and a consultant psychiatrist employed by the authority, in relation to their response to an allegation of sexual abuse, which led to the separation of a child from her mother. Other claims related to alleged breaches of duties, said to have been owed by educational authorities, in failing to properly attend to the special needs of various children with learning disorders or behavioural problems. 441 The principal judgment was delivered by Lord Browne-Wilkinson, with whose reasoning and conclusions, Lords Jauncey, Lane and Ackner agreed. His Lordship observed (at 736): "Most statutes which impose a statutory duty on local authorities confer on the authority a discretion as to the extent to which, and the methods by which, such statutory duty is to be performed. It is clear both in principle and from the decided cases that the local authority cannot be liable in damages for doing that which Parliament has authorised. Therefore if the decisions complained of fall within the ambit of such statutory discretion they cannot be actionable in common law. However if the decision complained of is so unreasonable that it falls outside the ambit of the discretion conferred upon the local authority, there is no apriori reason for excluding all common law liability. " 442 His Lordship continued, (at 737) after referring to the Dorset Yacht case, and to Anns v Merton London Borough Council (1978) AC 728 : " It follows that in seeking to establish that a local authority is liable at common law for negligence in the exercise of a discretion conferred by statute, the first requirement is to show that the decision was outside the ambit of the discretion altogether: if it was not, a local authority cannot itself be in breach of any duty of care owed to the plaintiff. In deciding whether or not this requirement is satisfied, the court has to assess the relevant factors taken into account by the authority in exercising the discretion. Since what are under consideration are discretionary powers conferred on public bodies for public purposes the relevant factors will often include policy matters, for example social policy, the allocation of finite financial resources between the different calls made upon them or (as in Dorset Yacht) the balance between pursuing desirable social aims as against the risk to the public inherent in so doing. It is established that the courts cannot enter upon the assessment of such "policy" matters. The difficulty is to identify in any particular case whether or not the decision in question is a "policy" decision. " 443 After further reference to Anns, and to Rowling v Takaro Properties Ltd [1988] AC 473, His Lordship said (at 738): " From these authorities I understand the applicable principles to be as follows: Where Parliament has conferred a statutory discretion on a public authority, it is for that authority, not for the courts, to exercise the discretion; nothing which the authority does within the ambit of the discretion can be actionable at common law. If the decision complained of falls outside the statutory discretion, it can (but not necessarily will) give rise to common law liability. However, if the factors relevant to the exercise of the discretion include matters of policy, the court cannot adjudicate on such policy matters and therefore cannot reach the conclusion that the decision was outside the ambit of the statutory discretion. Therefore a common law duty of care in relation to the taking of decisions involving policy matters cannot exist." 444 In relation to the claims for breach of statutory duty, his Lordship said (at 747): "The Court of Appeal were unanimous in striking out these claims in both actions. I agree. My starting point is that the Acts in question are all concerned to establish an administrative system designed to promote the social welfare of the community. The welfare sector involved is one of peculiar sensitivity, involving very difficult decisions how to strike the balance between protecting the child from immediate feared harm and disrupting the relationship between the child and its parents. Decisions often have to be taken on the basis of inadequate and disputed facts. In my judgment in such a context it would require exceptionally clear statutory language to show a parliamentary intention that those responsible for carrying out these difficult functions should be liable in damages if, on subsequent investigation with the benefit of hindsight, it was shown that they had reached an erroneous conclusion and therefore failed to discharge their statutory duties. " 445 As has become evident from the series of cases in which the High Court of Australia has attempted to establish either a definitive general statement of the circumstances in which a common law duty of care will arise, or one specific to state and public authorities and officials, it has not succeeded in doing so: See, for example, Northern Sandblasting Pty Ltd v Harris (1996) 188 CLR 313; Hill v Van Erp (1997) 188 CLR 159; Pyrenees Shire Council v Day (1998) 192 CLR 330: Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431; Crimmins v Stevedoring Industry Finance Corporation (1999) 200 CLR 1; Perre v Apand Pty Ltd (1999) 198 CLR 180; Brodie v Singleton Shire Council (2001) 206 CLR 512; Sullivan v Moodie (2001) 75 ALJR 1570; Tame v NSW (2002) 76 ALJR 1348; Graham Barclay Oysters Pty Ltd V Ryan (2002) 77 ALJR 183. 446 Particular attention has been given to cases involving the exercise of statutory functions. In Pyrenees Shire Council, a Council was held liable to pay damages to shop owners for its failure to take appropriate action in relation to a defect in the chimney of a fireplace, which it knew to constitute a substantial fire risk, and which was the cause of a fire that damaged the building and adjoining premises. Brennan CJ held that the Council had been under a public law duty to exercise its statutory powers in relation to the fireplace, while Toohey, McHugh, Gummow and Kirby JJ held that it had been in breach of the duty of care owed. Relevantly for present purposes, Brennan CJ observed at 347: "[24] … a duty to exercise a power may arise from particular circumstances, and may be enforceable by a public law remedy. Where a purpose for which a power is conferred is the protection of the person or property of a class of individuals and the circumstances are such that the repository of the power is under a public law duty to exercise the power, the duty is, or in relevant respects is analogous to, a statutory duty imposed for the benefit of a class, breach of which gives rise to an action for damages by a member of the class who suffers loss in consequence of a failure to discharge the duty. The general principles of public law establish the existence of the statutory duty to exercise the power and the statute prescribes the class of individuals for whose benefit the power is to be exercised. [25] Where the power is a power to control "conduct or activities which may foreseeably give rise to a risk of harm to an individual" (to use a criterion stated by McHugh JA in Parramatta City Council v Lutz and the power is conferred for the purpose of avoiding such a risk, the awarding of compensation for loss caused by a failure to exercise the power when there is a duty to do so is in accordance with the policy of the statute. An individual who is among the class whose interests are intended to be protected by exercise of the power has both locus standi to seek a public law remedy and a right to compensation for damage suffered as the result of any breach of the duty to exercise the power in protection of that individual's person or property…

[26] No duty breach of which sounds in damages can be imposed when the power is intended to be exercised for the benefit of the public generally and not for the protection of the person or property of members of a particular class. And I doubt whether a duty breach of which sounds in damages would be held to exist if the power were conferred merely to supervise the discharge by a third party of that party's duty to act to protect a plaintiff from a risk of damage to person or property. " (References omitted). 447 Of critical importance for the decision in Pyrenees Shire Council were the facts that the Council had been earlier notified by the fire authority that the fireplace was unsafe, and that one of its inspectors had examined it, and informed a tenant and owner that it should not be used unless it was fully repaired. It failed thereafter to take any further steps in relation to the problem, and in particular it did not use its statutory powers to ensure compliance. The case was one of both control, knowledge and reliance, and also one in which there were no competing interests. 448 In Crimmins, the High Court held that the defendant Authority, a statutory body which was required to exercise its functions and powers "with a view to securing the expeditious, safe and efficient performance of stevedoring operations", owed a common law duty to take reasonable care to protect the plaintiff waterside worker from reasonably foreseeable risks of injury arising from his employment by registered stevedores. The basis for that finding per Gleeson CJ, Gaudron, McHugh and Callinan JJ rested upon the proposition that the Authority had or should have had knowledge of the special risks that members of the class, which included workers, were subject, and was in a position to control or minimise those risks by the exercise of its statutory power. Nothing in the legislation governing the authority's powers and functions was considered to have negatived the existence of a common law duty of care. 449 The need for some caution before imposing a duty of care upon such authorities was recognised. Gleeson CJ, (at P13) observed in this regard: " [5] Acceptance that a statutory authority, in the discharge of its functions, owed a duty of care to a person, or class of persons, is only the first step in an evaluation of the authority's conduct for the purpose of determining tortious liability. In some cases, the difficulty of formulating the practical content of a duty to take reasonable steps to avoid foreseeable risks of harm, for the purpose of measuring the performance of an authority against such a duty, may be a reason for denying the duty. In other cases, of which the present is an example, recognition of the existence of a duty is consistent with the need, when dealing with the question of breach, to take account of complex considerations, perhaps including matters of policy, resources and industrial relations. " 450 The duty attaching to a public or statutory body was described by Gaudron J (at 21): " "[33] To say there is nothing to preclude the existence of a common law duty of care on the part of the Authority to waterside workers is, however, not to say anything as to the content of that duty. Ordinarily, a duty of care is expressed in terms of a duty to take those steps that a reasonable person, in the position of the person who owes the duty of care, would take to avoid a foreseeable risk of injury to another. However, a public body or statutory authority cannot properly be equated with a natural person. Nor is a public body with the powers and functions of the Authority properly to be equated with a reasonable employer of waterside labour and subjected to the same duty of care.

[34] A public body or statutory authority only has those powers that are conferred upon it. And it only has the resources with which it is provided. If the common law imposes a duty of care on a statutory authority in relation to the exercise or non-exercise of its powers or functions, it only imposes a duty to take those steps that a reasonable authority with the same powers and resources would have taken in the circumstances in question. " (References Omitted) 451 McHugh J observed (at 34): " "[79] Common law courts have long been cautious in imposing affirmative common law duties of care on statutory authorities. Public authorities are often charged with responsibility for a number of statutory objects and given an array of powers to accomplish them. Performing their functions with limited budgetary resources often requires the making of difficult policy choices and discretionary judgments. Negligence law is often an inapposite vehicle for examining those choices and judgments. Situations which might call for the imposition of a duty of care where a private individual was concerned may not call for one where a statutory authority is involved. This does not mean that statutory authorities are above the law. But it does mean that there may be special factors applicable to a statutory authority which negative a duty of care that a private individual would owe in apparently similar circumstances. In many cases involving routine events, the statutory authority will be in no different position from ordinary citizens. But where the authority is alleged to have failed to exercise a power or function, more difficult questions arise ." 452 Gummow J (at 59) noted: " "[159] To determine the manner of interaction between a particular statute and the common law of negligence, it is necessary to comprehend the legislative scheme. The starting point will commonly lie, as in the present appeal, in the terms of the statute and a determination of the scope of its operation. It obscures rather than illuminates the scheme established by the legislature to posit a common law duty of care and then determine whether the existence of that duty has been negatived by the statute, or other factors. Such reasoning may fail to clearly elucidate the interaction between the common law and statute. This lack of clarity will afford decision-makers, in both the judicial and legislative branches of government, little guidance, in particular where, as here, the statute establishes relationships, conduct or other subject matter which are not previously known to the common law and whose origins lie wholly within the four walls of the statute. " 453 In Sullivan v Moody, the High Court was concerned with actions brought by the fathers of several children who had been examined for evidence of possible sexual abuse, by medical practitioners and social workers (including Dr Moody) who were employed by the Department of Community Welfare. They alleged that, as a result of negligent examinations, diagnosis and reporting of the results of such examinations, they had suffered personal and financial loss. It was held, approving Hillman v Black (1996) 67 SASR 490, but not following Caparo Industries Pty Ltd v Dickman (1990) 2 AC 605 at 617-618, that: " ...it would be inconsistent with the proper and effective discharge of the professional or statutory responsibilities of those involved in investigating and reporting upon allegations of sexual abuse for them to be subject to a legal duty to take care to protect persons who were suspected of being the sources of the harm. " 454 In delivering its judgment, the Court said in a passage of immediate relevance for the present case (at 572/3): "The appellants submit that it was reasonably foreseeable that they would suffer harm of the kind alleged in consequence of negligence on the part of the defendants in investigating and reporting upon the allegations. That is not disputed. But foreseeability of harm is not sufficient to give rise to a duty of care. Conscious of a number of difficulties, including indeterminacy of liability, the appellants disclaimed any suggestion that the fact that they were actual or potential suspects of itself gave rise to a duty owed to them by the defendants of a kind that would give rise to liability in negligence. They did not contend that such a duty would be owed to a neighbour, or a stranger, who was suspected of molesting the children. The parental relationship between the appellants and the children, it was said, distinguished these cases from the ordinary case of an investigation of a possible crime. The appellants did not argue that public authorities or individuals who, in the course of their official or professional duties, or otherwise, investigate, and report upon, possible offences, normally owe a legal duty to take reasonable care not to cause harm to people who might be suspected of being offenders, even though it is obviously foreseeable that such people might be adversely affected by carelessness in investigation and reporting. …

The appellants also sought to confine the extent of the duty for which they contended, by excluding expressions of opinions and communications about the precautions necessary to protect children. The duty claimed was limited to the acts of undertaking medical examinations and associated interviews, making and communicating diagnoses, and, in the case of the Department, conducting further review and investigations. This unconvincing distinction appears to have been made in an attempt to avoid the incongruity of a proposition that, in deciding what precautions should be taken to protect a child from apprehended sexual abuse, decision-makers owe a duty to take care to protect a suspected abuser from emotional distress and other forms of harm. " 455 The Court noted, in relation to the full Court decision in Hillman v Black that Matheson J had been strongly influenced by the public policy considerations which had underpinned the decision in X (Minors); and that Prior J had noted that there would be a potential conflict between the interests of the child and the parents, which would then expose the doctors to a conflict of duty and interests, if they were subject to a Common Law duty of care to the parents. The Court noted the reliance on these factors by the full court in Thompson and the paramountcy of the duty to protect the interests of the children. 456 The Court noted, in relation to the supposed duty of care, (at 526): " The argument was conducted upon the basis that it was foreseeable that harm of the kind allegedly suffered by the appellants might result from want of care on the part of those who investigated the possibility that the children had been sexually abused. But the fact that it is foreseeable, in the sense of being a real and not far-fetched possibility, that a careless act or omission on the part of one person may cause harm to another does not mean that the first person is subject to a legal liability to compensate the second by way of damages for negligence if there is such carelessness, and harm results. If it were otherwise, at least two consequences would follow. First, the law would subject citizens to an intolerable burden of potential liability, and constrain their freedom of action in a gross manner. Secondly, the tort of negligence would subvert many other principles of law, and statutory provisions, which strike a balance of rights and obligations, duties and freedoms. A defendant will only be liable, in negligence, for failure to take reasonable care to prevent a certain kind of foreseeable harm to a plaintiff, in circumstances where the law imposes a duty to take such care. ... … Considering whether the persons who reported their suspicions about each appellant owed that appellant a duty of care must begin from the recognition that those who made the report had other responsibilities. A duty of the kind alleged should not be found if that duty would not be compatible with other duties which the respondents owed. How may a duty of the kind for which the appellants contend rationally be related to the functions, powers and responsibilities of the various persons and authorities who are alleged to owe that duty? A similar problem has arisen in other cases. The response to the problem in those cases, although not determinative, is instructive." 457 The cases identified as instructive were those previously noted, namely, Hill v Chief Constable of West Yorkshire, Yuen Kun Yeu v Attorney-General of (Hong Kong) and X (minors) v Bedfordshire County Council. The Court continued: " The circumstance that a defendant owes a duty of care to a third party, or is subject to statutory obligations which constrain the manner in which powers or discretions may be exercised, does not of itself rule out the possibility that a duty of care is owed to a plaintiff. People may be subject to a number of duties, at least provided they are not irreconcilable. A medical practitioner who examines, and reports upon the condition of, an individual, might owe a duty of care to more than one person. But if a suggested duty of care would give rise to inconsistent obligations, that would ordinarily be a reason for denying that the duty exists. Similarly, when public authorities, or their officers, are charged with the responsibility of conducting investigations, or exercising powers, in the public interest, or in the interests of a specified class of persons, the law would not ordinarily subject them to a duty to have regard to the interests of another class of persons where that would impose upon them conflicting claims or obligation. … The statutory scheme that formed the background to the activities of the present respondents was, relevantly, a scheme for the protection of children. It required the respondents to treat the interests of the children as paramount. Their professional or statutory responsibilities involved investigating and reporting upon, allegations that the children had suffered, and were under threat of, serious harm. It would be inconsistent with the proper and effective discharge of those responsibilities that they should be subjected to a legal duty, breach of which would sound in damages, to take care to protect persons who were suspected of being the sources of that harm. The duty for which the appellants contend cannot be reconciled satisfactorily, either with the nature of the functions being exercised by the respondents, or with their statutory obligation to treat the interests of the children as paramount. As to the former, the functions of examination, and reporting, require, for their effective discharge, an investigation into the facts without apprehension as to possible adverse consequences for people in the position of the appellants or legal liability to such persons. As to the latter, the interests of the children, and those suspected of causing their harm, are diverse, and irreconcilable. That they are irreconcilable is evident when regard is had to the case in which examination of a child alleged to be a victim of abuse does not allow the examiner to form a definite opinion about whether the child has been abused, only a suspicion that it may have happened. The interests of the child, in such a case, would favour reporting that the suspicion of abuse has not been dispelled; the interests of a person suspected of the abuse would be to the opposite effect. " 458 Finally it was observed (at 583 - Para 65) that ultimately the plaintiffs' case "rests on foreseeability; and that is not sufficient". 459 The earlier observations of Brennan J in Northern Territory v Mengel (1995) 185 CLR 307 (at 358) are also relevant: "… A public officer is appointed to his or her office in order to perform functions in the public interest. If liability were imposed upon public officers who, though honestly assuming the availability of powers to perform their functions, were found to fall short of curial standards of reasonable care in ascertaining the existence of those powers, there would be a chilling effect on the performance of their functions by public officers. The avoidance of damage to persons who might be affected by the exercise of the authority or powers of the office rather than the advancing of the public interest would be the focus of concern.

…" 460 The most recent word on this subject in the High Court is its judgment in Graham Barclay Oysters Pty Ltd v Ryan (2002) 77 ALJR 183 in which consideration was given to the question whether the State, through the Department of Fisheries, and a Local Council, owed a duty of care to consumers of oysters grown in, and harvested from, the Wallis Lake, by reason of the functions and powers reserved to them under various enactments, including the Fisheries Management Act 1994, the Clean Waters Act 1970, and the Local Government Act 1993. 461 That case was one of nonfeasance rather than misfeasance, a distinction no longer of significance in relation, at least, to highway authorities (Brodie v Singleton Shire Council) but it is of assistance so far as attention was given to the factors which need to be taken into account in determining whether a duty of care arises in a context such as the present. 462 One thing which does emerge with clarity from Barclay Oysters is that, reasonable foreseeability of harm, while a necessary condition for the existence of a duty of care, is not of itself, sufficient, (per Gleeson CJ at para 9, Kirby J at para 234, Callinan J at para 323). 463 It is also clear that control, or capacity to control, does not of itself provide an answer, save in the special factual context of the kind considered in Crimmins, and in Pyrenees Shire Council (see Gleeson CJ at paras 27 and 39, and McHugh J at paras 82 and 94. 464 The step from foreseeability of harm to the imposition of a legal duty, sounding in damages for breach, is a large step in the case of a governmental authority, as Gleeson CJ pointed out (para 12), for the reason that: " Although the first principle is that the tortious liability of governments is, as completely as possible, assimilated to that of citizens, there are limits to the extent to which that is possible. They arise from the nature and responsibilities of governments. In determining the existence and content of a duty of care, there are differences between the concerns and obligations of governments, and those of citizens." (References omitted) 465 In deciding that the State did not owe a duty of care, Gleeson CJ observed: " "[32] It is necessary to distinguish between a public duty, enforceable by mandamus, to give consideration to the exercise of a power, and a legal duty, owed to a citizen, to exercise the power. It is a duty of the second kind that is here asserted… the legislative grant to a Minister of a power to impose a fishing closure if satisfied of certain matters did not subject the State to a legal duty of care, owed to the plaintiff, or consumers of Wallis Lake oysters. It may be accepted that the reasonableness of a decision to exercise the power of closure would be a justiciable issue, and that the potential for judicial review of such a decision on public law grounds exists. But it is the existence of a common law duty of care that is presently in question. The power given by [the statute] is a power to protect the public, not a specific class of persons. Similar powers, covering a wide range of activities, are given to Ministers and government authorities in the interests of public health and safety. A legislative grant of power to protect the general public does not ordinarily give rise to a duty owed to an individual or to the members of a particular class. " (References Omitted). 466 In relation to the Council, Gleeson CJ observed ( at 35): "Furthermore, the same problem affects the case against the Council as affected the case against the State: the circumstance that, in the public interest, certain powers of regulation of activity within its area are vested by statute in the Council does not mean that the Council owes a legal duty to individuals or classes of person whose health may be affected, directly or indirectly, by decisions made as to the exercise of those powers. " 467 McHugh J agreed that neither the State nor the Council owed a general duty of care to oyster consumers. His Honour observed, in relation to the liability of public authorities: "A public body invested with a discretionary statutory power may be in breach of a common law duty of care if it fails to exercise the power for the benefit of an individual or class of individuals. In these cases, failure to exercise the power given constitutes actionable negligence that sounds in damages. In determining whether a public authority has breached a common law duty by failing to exercise a statutory power, it is essential to examine the words and policy of the legislation. That is because the legislation may indicate that the legislature has legislated to cover the field and excluded all common law duties of care. In other cases, the imposition of a common law duty may be inconsistent with or undermine the effectiveness of the duties imposed by the statute. In some cases, the circumstances of the case - for example, active intervention by the authority or reliance by the plaintiff - may establish a duty of care. But the legislation may give the authority such a wide discretion to exercise the power in question that the tribunal of fact cannot find that the failure to exercise the power constituted a breach of the duty. " (References Omitted). 468 His Honour continued: " [79] Legislatures often vest discretionary powers in public authorities for the specific purpose of protecting the community. Some powers may be vested in the authorities for the protection of a specific class of persons who may be exposed to risks of harm that they are powerless to avoid and sometimes unable to identify. But the legislature has made these powers exercisable at the discretion of the authorities, and the common law does not seek to convert the statutory discretion into a positive common law duty to exercise it for the benefit of the public or one of its members. This is so even in those cases where mandamus will lie to compel the performance of the public duty to give proper consideration to whether a public authority should exercise a power. Mandamus lies for breach of a duty owed to the public. Any person with a sufficient interest in the performance of the duty may bring an action for mandamus requiring that the public authority comply with the conduct that is the subject of the duty. But common law duties are owed to individuals. Unless the proper inference from the statute is that an individual has "a personal right to the due observance of the conduct, and consequently a personal right to sue for damages if he be injured by a contravention", breach of the statutory duty does not sound in damages. " (References omitted). 469 His Honour offered a solution to the problem presently confronted, in the following passages: "[84] Where a plaintiff claims that a public authority owed him or her an affirmative duty of care in a situation that has not yet been recognised by the common law, the court must examine a number of matters to determine whether the duty existed. I pointed to these matters in Crimmins v Stevedoring Industry Finance Committee: · Would a reasonable public authority reasonably foresee that its act or omission, including a failure to exercise its statutory powers, might result in injury to the plaintiff or his or her interests? · Was the authority in a position of control and did it have the power to control the situation that brought about the harm to the injured person? · Was the injured person or his or her interests vulnerable in the sense that the injured person could not reasonably be expected to adequately safeguard himself or herself or those interests from harm? · Did the public authority know, or ought it to have known, of an existing risk of harm to the plaintiff or, in some cases, to a specific class of persons who included the plaintiff (rather than a risk to the general public)? · Would the imposition of the duty of care impose liability with respect to the defendant's exercise of "core policy-making" or "quasi-legislative" functions? · Is there any supervening policy reason that denies the existence of a duty of care?

If the first four of these questions are answered in the affirmative and the fifth and sixth questions in the negative, the court will ordinarily hold that the authority owed a duty of care to the plaintiff. Conversely, if any of the first four questions are answered in the negative or either of the fifth and sixth questions are answered in the affirmative, ordinarily no duty of care will arise. " (References omitted). 470 Gummow and Hayne JJ, with whose reasons Gaudron J agreed, similarly rejected the existence of a duty of care on the part of the State and Council, noting: "[145]… the co-existence of knowledge of a risk of harm and power to avert or to minimise that harm does not, without more, give rise to a duty of care at common law. The totality of the relationship between the parties, not merely the foresight and capacity to act on the part of one of them, is the proper basis upon which a duty of care may be recognised. Were it otherwise, any recipient of statutory powers to licence, supervise or compel conduct in a given field, would, upon gaining foresight of some relevant risk, owe a duty of care to those ultimately threatened by that risk to act to prevent or minimise it. As will appear, the common law should be particularly hesitant to recognise such a duty where the relevant authority is empowered to regulate conduct relating to or impacting on a risk-laden field of endeavour which is populated by self-interested commercial actors who themselves possess some power to avert those risks. The existence or otherwise of a common law duty of care allegedly owed by a statutory authority turns on a close examination of the terms, scope and purpose of the relevant statutory regime. The question is whether that regime erects or facilitates a relationship between the authority and a class of persons that, in all the circumstances, displays sufficient characteristics answering the criteria for intervention by the tort of negligence.

Where the question posed above is answered in the affirmative, the common law imposes a duty in tort which operates alongside the rights, duties and liabilities created by statute. In some instances, a statutory regime may itself, in express terms or by necessary implication, exclude the concurrent operation of a duty at common law. An example is provided by Sullivan v Moody. The Court there said: … An evaluation of whether a relationship between a statutory authority and a class of persons imports a common law duty of care is necessarily a multi-faceted inquiry. Each of the salient features of the relationship must be considered. The focus of analysis is the relevant legislation and the positions occupied by the parties on the facts as found at trial. It ordinarily will be necessary to consider the degree and nature of control exercised by the authority over the risk of harm that eventuated; the degree of vulnerability of those who depend on the proper exercise by the authority of its powers; and the consistency or otherwise of the asserted duty of care with the terms, scope and purpose of the relevant statute. In particular categories of cases, some features will be of increased significance. " (References omitted). 471 Significantly their Honours observed: "[185] It may readily be accepted that public authorities, armed with statutory powers to compel, prevent or punish conduct, frequently exercise informal and non-coercive influence or persuasion over those persons and organisations against whom they are empowered formally to act. So much follows from the existence of an organised system of sanctions beneath which there is interaction between public authorities and industry participants. But the exercise or potential exercise of powers of supervision or persuasion of this type provides an insecure basis for a duty of care enforceable by the common law. " (References omitted). 472 Kirby J also found that no duty of care was owed by the Council or State. While lamenting the absence of any clear universal principle in determining such cases as the present, His Honour noted: "[213] Only one unarguable principle emerges from the earlier decisions, reflected in the Federal Court's analysis. It is the self-evident one that any duty of a public authority at common law must be compatible with the legislative powers conferred, and duties imposed, on that authority. It must conform to the apparent purpose of the legislature relating to the authority carrying out its duties according to statute. As Lindgren J said in the Federal Court, the search for what the law expects must commence 'with a close examination of the relevant legislation'. As Kiefel J expressed it, 'the principal focus must be upon the statutes which confer power on those entities'. " (References omitted). 473 Despite continuing to express a preference for the test which had been propounded in Caparo Industries Pty Ltd v Dickman [1990] 2 AC 605, but which had been rejected by the Court in Sullivan v Moody, His Honour offered as an alternative, which had been hinted at in his judgment in Pyrenees, noting: "[240] The statements I made there acknowledged that the verbal attempts at identifying particular criteria for distinguishing cases where a duty of care existed (and where it did not) had failed; that candid policy evaluation was uncongenial to Australian judges or considered inappropriate; and that liability should therefore be imposed where it was judged that a reasonable person in the defendant's position could have avoided damage by exercising reasonable care and was in such a relationship to the plaintiff that he or she ought to have acted to do so. Despite its overt circularity, this formulation might at least offer a return to the substance of Lord Atkin's speech in Donoghue v Stevenson. It might afford a broad formula that poses a factual (or jury) question and avoids the chaos into which other attempted formulae have lately led the law. " (References omitted) 474 In developing this concept His Honour accepted the risk that it might involve a drift back to the discredited notion that proximity alone would be a "sufficient criterion for the assignment of a legal duty", but offering a solution: "[242]… so long as the 'closeness' of the relationship contemplated is not confined to physical closeness, I see no great difficulty now (and some advantage) in leaving the features of the 'relationship' of 'neighbourhood' undefined and simply asking whether, in all the circumstances, it is such as to make it 'reasonable to impose upon the one a duty of care to the other'. This is always the ultimate question that must be answered in all cases of a disputed duty of care in negligence. Somehow in the end accumulated facts must be turned into an 'ought'.

In answering the 'ultimate question', in a case involving the alleged neglect of a statutory authority to utilise the statutory powers that it undoubtedly enjoys, it will obviously be essential to analyse those powers carefully. It will be necessary to attempt to derive from the language and structure of the applicable legislation, viewed as a whole, a conclusion as to whether, in the particular case, the power conferred on the authority had been converted to the obligations of a duty. The reference to the 'particular case' will, in turn, invoke a consideration of the multitude of special features of the relationship between the parties that I take it the multi-factorial or 'salient features' approach requires." (References omitted). 475 So understood, His Honour formulated " the test as one pursuant to which a duty of care will be imposed when it is reasonable in all the circumstances to do so", being the test which he and Gummow J had adopted in their joint reasons in Tame. 476 Finally, it may be noted that Callinan J, who agreed that no duty was owed by the State or Council, returned to the statement of Earl Cairns LC in Julius v Lord Bishop of Oxford (1880) 5 App Cas 214 at 222-223 to the effect that: " [t]here may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so."

Adding: "It may, with respect, be doubted whether it is possible to make a more accurate or better statement in relation to the powers and obligations of a statutory authority. Another way of expressing his Lordship's view is to say that there has to be something either unique (as it was in Crimmins) or special about the role, or involvement of the authority, or the relationship between it and the affected person, or special about the non-exercise of the power such as marked irrationality in abstention from employing it, before liability may be sheeted home to the former." (References omitted).

477 His Honour cautioned that, in considering whether there was something in all the circumstances, including the terms of the conferral of the powers, which requires that they be coupled with a duty: " True it may be, that vulnerability, power, control, generality or particularity of the class, the resources of, and demands upon the authority, may each be, in a given case, a relevant circumstance, but none should, I think, of itself be decisive. " 478 In New South Wales v Paige [2002] NSWCCA 235, the Court of Appeal was concerned with actions brought by a Principal of a Sydney High School who alleged that the State, through the Department of Education, owed a duty of care to conduct its disciplinary procedures so as to avoid psychiatric harm to its employees. The Principal was originally charged with a breach of his duties for non-compliance with Departmental procedures for his handling of complaints from students regarding sexual misconduct of a teacher at the school. 479 In his judgment, Spigelman CJ highlighted a number of important considerations concerning the interrelationship between duties of care and the exercise of statutory powers and duties. In relation to the issue of securing a legal coherence of a proposed duty of care with a statutory scheme, the Chief Justice observed: " [93] When considering the issue of coherence it is necessary to give close consideration to the statutory scheme: specifically whether a common law duty is 'inconsistent' or 'incompatible' with the statute… However, issues of coherence may arise even if there is no direct inconsistency. It may be enough if the effect of imposing civil liability is to 'distort [the] focus' of the statutory decision making process (Crimmins at [292] per Hayne J)." 480 His Honour held that to impose a duty of care to avoid the risk of psychiatric harm to the person whose conduct was being investigated, would have an inhibiting effect on the process of investigation and decision-making, observing: " [115] As a general rule, in my opinion, it is undesirable to inhibit an investigation into the exercise of a statutory power which protects public interests by imposing the chilling effect of a risk of civil liability." 481 The incompatibility of the duties, although not of sufficient weight alone to determine the issue, when combined with other aspects of coherence with the law of employment and administrative law, led the court to decide that there was no duty of care and that a new class of duty of care should not be established. 482 In my view, similar considerations to those which were determiative in Sullivan, in Graham Barclay Oysters and in State of New South Wales v Paige, apply in the present case. The Boards, the rangers, the inspectors and the district veterinarians, have important functions and powers to exercise for the protection of the sheep industry as a whole, as well as in relation to those graziers who run stock within the districts regulated by them. The risk of sheep lice infestation and of other stock diseases spreading to other flocks, and occasioning serious financial damage to other graziers in the districts, or to the owners of travelling stock passing through those districts, and of affecting the reputation and value of sheep passing through saleyards is not inconsiderable. 483 The Stock Diseases Act and the Rural Lands Protection Act are clearly intended to operate for the paramount interests of the Industry and, in particular, for those graziers whose flocks are uninfected by stock diseases, whether they be sheep lice, footrot or other conditions. The legislative scheme is also intended for the assistance of graziers whose flocks are at risk as well as those whose flocks are already infected, through the advisory services and the other measures available under the lice control plan. 484 If the Boards, the rangers, the inspectors, and the district veterinarians were required to look over their shoulders, by reason of some potential liability to owners of sheep who were wrongly diagnosed as having a relevant disease, or to owners of sheep which became infected through some failure on their part to exercise the relevant powers, then clearly the overall performance of their duties, in the wider interests of the industry, would risk serious compromise. 485 So far as there exist interests respectively, on the part of graziers who own stock which are liable to be quarantined, or to be made the subject of regulatory orders, on the one hand, and the wider industry, on the other hand, there are directly competing interests. From that competition there also arises a potential conflict of interest and duty on the part of officers or boards such as the defendants, not only because of the conflicting interests which they would need to balance; but also because of their own personal interest, to act in a way that might best avoid legal action being taken against them, either by a disgruntled stock owner whose stock were quarantined, or by a grazier whose flock became infected as the result of a failure of inspectors or rangers or veterinarians to act. 486 In these circumstances, I am satisfied that there was no common law duty of care owed by any of the defendants to the plaintiffs. I reach this conclusion both by reference to the public policy considerations which attach to the discharge of the offices of inspector, ranger and district veterinarian, and also as a matter of statutory interpretation. In the latter regard, I consider that the existence of the immunity provision (Clause 4 of Schedule 1 of the Rural Lands Protection Act) provides some indication of an intention to free such officers from a common law duty of care, and to confine any potential liability to that embodied in the tort of misfeasance in public office. 487 Also of importance in the analysis of this question is the consideration identified in Brodie v Singleton Shire Council concerning the impossibility and the potential expense of inspecting, re-inspecting and monitoring all flocks in the State or districts, the difficulties in detecting the relevant diseases, particularly so far as lice are concerned in shorn sheep, and the potential reach of liability were a general duty of care to attach, which extended not only to the owners of sheep which were inspected, but also to the wider class of participants in the industry, that would include other graziers and drovers, as well as those concerned with the sale, processing, and export of live sheep meat, wool and hides. In addition, the exercise of the relevant powers in responding to infections, or suspected infections, could encompass a number of possible options, and give rise to difficult policy issues. 488 The questions of practicability, appropriateness and reasonableness, the nature and composition of the class of persons whose interests may be affected, and the extent to which matters of policy arise, are, in the light of recent authorities, of considerable relevance in the determination of whether a duty of care attaches. Each has a particular impact in this case, such that I have reached the conclusion that no common law duty of care was owed. (ii) The Tort Of Intimidation 489 It is clear law that the tort of intimidation, which is alleged only in relation to the actions of Mr Williams at Moree (in requiring the sheep to be taken off the stock route, and returned to their place of origin) depends upon proof of the commission of an unlawful act, which was done or procured for the purpose of inflicting harm, and which involved an infringement of the plaintiffs' rights: Allen v Flood [1898] AC 1, Sorrell v Smith [1925] AC 700, Rookes v Barnard [1964] AC 1129, James v The Commonwealth (1939) 62 CLR 339, and Sanders v Snell (1999) 196 CLR 329. It has a close association with the tort next considered in these proceedings. 490 In Northern Territory v Mengel (1995) 185 CLR 307, the court was concerned with circumstances having some similarity to those in the present case. Restrictions were imposed by cattle inspectors who were employed by the Northern Territory Government, on the movement of certain cattle which had tested positive for Brucellosis. Although the inspectors believed that they had the power to impose the restrictions, they had in fact no power to do so. They were aware of the plaintiffs' need to sell some of the cattle to meet their obligations to the bank, but they were not activated by any intention to harm the owners. 491 The owners of the cattle, who complied with the restrictions laid down by the inspectors, claimed damages for the ensuing financial loss related to their need to buy feed, to arrange agistment, and to sell some of the stock earlier than had been planned. The causes of action upon which they relied were intimidation and misfeasance in public office. 492 In relation to the tort of intimidation, Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ noted that in James v The Commonwealth, Dixon J (as he then was) had adopted, as correct, the statement in Salmond's Law of Torts (9th edition 1936) to the following effect: " Although there seems to be no authority on the point, it cannot be doubted that it is an actionable wrong intentionally to compel a person, by means of a threat of an illegal act, to do some act whereby loss accrues to him: for example, an action will doubtless lie at the suit of a trader who has been compelled to discontinue his business by means of threats of personal violence made against him by the defendant with that intention. " 493 In the Court of Appeal, Priestly J had formulated the relevant cause of action in the following terms: ".. a plaintiff has an action on the case for damage suffered because in face of an express or implied threat by governmental authority of unlawful interference with the plaintiff's property or of unlawful prosecution of the plaintiff, the plaintiff has felt compelled to refrain, and has refrained, to the plaintiff's loss, from dealing with the plaintiff's goods. "

494 Their Honours made it clear, on appeal, however, that the intention to cause harm was an essential ingredient of the tort; and observed that the assumption that: " an assertion that certain legal consequences will attend a particular course of action amounts to a threat for the purposes of the principle stated in Salmond's Laws of Torts, could not be maintained in the face of the judgment of Dixon J". (At 342). 495 They concluded: "76. James v. The Commonwealth provides no support for the cause of action described by Priestley J in the Court of Appeal. Nor is there any other principled basis for its recognition. So far as individual government employees are concerned, it would extend personal liability beyond misfeasance in public office or, even, negligence and, in effect, impose liability for an error of judgment. That result is supported by neither policy nor principle. Moreover and of more significance, it would give rise to the same difficulty as does Beaudesert in relation to negligence: if there is a duty of care on the part of government or the individual employee to avoid the harm suffered, it serves no useful purpose; and if there is not, it is anomalous to impose liability for unintended harm that there is no duty to avoid. Thus, the Mengels are not entitled to succeed on the alternative basis formulated by Priestley J in the Court of Appeal.

It should be mentioned, for the sake of completeness, that it was not argued in this Court that the Mengels were entitled to succeed on the actual cause of action identified in Salmond's Law of Torts and acknowledged by Dixon J in James v. The Commonwealth, doubtless because of the finding by Asche CJ that the Inspectors did not intend to cause them harm. " 496 Deane J, similarly disagreed with the conclusion which had been reached by Priestly J, upon the basis of the passage from Salmond's Law of Torts cited with approval by Dixon J in James v The Commonwealth, observing (at 371): " If the Mengels had been induced to refrain from movement of their cattle by an express or implied threat of unlawful seizure which was made by the inspectors with the intention and for the purpose of preventing such movement, they would, in my view, have been entitled to recover damages for the tort of intimidation identified by Sir John Salmond in the above passage." 497 His Honour continued (at 372): "In James v The Commonwealth, Dixon J was clearly of the view that a threat of prosecution was not, without more, a threat of an illegal act even if a prosecution would be doomed to fail. As I have already indicated, I respectfully agree with his Honour's view in that regard. There is nothing illegal about a prosecution which is brought bona fide but which fails and, in the absence of malice or some ulterior or improper motive, a threat to institute a prosecution is not a threat of an "illegal act" for the purposes of an action for intimidation. " (References omitted). 498 It follows from these decisions that, in order to make out a case of intimidation, the plaintiffs would need to prove that Mr Williams neither believed or suspected that the plaintiffs' sheep were "diseased" for the purposes of the Stock Diseases Act, that he acted for the purpose of deliberately harming the plaintiffs, and that there was a causal relationship of the kind considered necessary in Mengel between their losses and his acts, bearing in mind that the issue of the order for the movement of the stock, on 30 September 1991, was made by Mr Hovenden.

(iii) Misfeasance In Public Office 499 The tort of misfeasance in public office requires as an essential ingredient that the defendant acted without lawful authority, either with the intention of causing harm to another, or did so knowing that he or she lacked power, or was reckless in relation thereto. Additionally, depending on the correct formulation of the tort, it is an essential ingredient that the act is one which involves a foreseeable risk of harm, or alternatively, is one which is done with the knowledge that it will cause, or be likely to cause, harm to another or with the recklessness as to that consequence. 500 In Mengel, Mason CJ, Dawson J, Toohey, Gaudron and McHugh JJ (at 347) observed: "It was recognised as recently as 1973 that the precise limits of the tort of misfeasance in public office were then undefined. In important respects, that is still true. However, the weight of authority here and in the United Kingdom is clearly to the effect that it is a deliberate tort in the sense that there is no liability unless either there is an intention to cause harm or the officer concerned knowingly acts in excess of his or her power. " (References Omitted). 501 Their Honours noted (also at 347) "The cases do not establish that misfeasance in public office is constituted simply by an act of a public officer which he or she knows is beyond power and which results in damage. Nor is that required by policy or by principle. Policy and principle both suggest that liability should be more closely confined. So far as policy is concerned, it is to be borne in mind that, although the tort is the tort of a public officer, he or she is liable personally and, unless there is de facto authority, there will ordinarily only be personal liability. And principle suggests that misfeasance in public office is a counterpart to, and should be confined in the same way as, those torts which impose liability on private individuals for the intentional infliction of harm. For present purposes, we include in that concept acts which are calculated in the ordinary course to cause harm, … or which are done with reckless indifference to the harm that is likely to ensue… It may be that analogy with the torts which impose liability on private individuals for the intentional infliction of harm would dictate the conclusion that, provided there is damage, liability for misfeasance in public office should rest on intentional infliction of harm, in the sense that that is the actuating motive, or on an act which the public officer knows is beyond power and which is calculated in the ordinary course to cause harm. However, it is sufficient for present purposes to proceed on the basis accepted as sufficient in Bourgoin , namely, that liability requires an act which the public officer knows is beyond power and which involves a foreseeable risk of harm. If misfeasance in public office is viewed as a counterpart to the torts imposing liability on private individuals for the intentional infliction of harm, there is much to be said for the view that, just as with the tort of inducing a breach of contract, misfeasance in public office is not confined to actual knowledge but extends to the situation in which a public officer recklessly disregards the means of ascertaining the extent of his or her power. " 502 Brennan J identified the relevant elements of the tort in the following passages of his judgment (at 356 to 357): "A number of elements must combine to make a purported exercise of administrative power wrongful. The first is that the purported exercise of power must be invalid, either because there is no power to be exercised or because a purported exercise of the power has miscarried by reason of some matter which warrants judicial review and a setting aside of the administrative action. There can be no tortious liability for an act or omission which is done or made in valid exercise of a power. A valid exercise of power by a public officer may inflict on another an unintended but foreseeable loss - or even an intended loss - but, if the exercise of the power is valid, the other's loss is authorised by the law creating the power. In that case, the conduct of the public officer does not infringe an interest which the common law protects. However, a purported exercise of power is not necessarily wrongful because it is ultra vires. The history of the tort shows that a public officer whose action has caused loss and who has acted without power is not liable for the loss merely by reason of an error in appreciating the power available. Something further is required to render wrongful an act done in purported exercise of power when the act is ultra vires. The further requirement relates to the state of mind of the public officer when the relevant act is done or the omission is made. …

In more recent times, the scope of the tort has not been limited to cases in which a public officer has acted maliciously. It has now been accepted that if a public officer engages in conduct in purported exercise of a power but with actual knowledge that there is no power to engage in that conduct, the conduct may amount to an abuse of office. … I respectfully agree that the mental element is satisfied either by malice (in the sense stated) or by knowledge. That is to say, the mental element is satisfied when the public officer engages in the impugned conduct with the intention of inflicting injury or with knowledge that there is no power to engage in that conduct and that that conduct is calculated to produce injury. These are states of mind which are inconsistent with an honest attempt by a public officer to perform the functions of the office. Another state of mind which is inconsistent with an honest attempt to perform the functions of a public office is reckless indifference as to the availability of power to support the impugned conduct and as to the injury which the impugned conduct is calculated to produce. The state of mind relates to the character of the conduct in which the public officer is engaged - whether it is within power and whether it is calculated (that is, naturally adapted in the circumstances) to produce injury. In my opinion, there is no additional element which requires the identification of the plaintiff as a member of a class to whom the public officer owes a particular duty though the position of the plaintiff may be relevant to the validity of the public officer's conduct… It is the absence of an honest attempt to perform the functions of the office that constitutes the abuse of the office. Misfeasance in public office consists of a purported exercise of some power or authority by a public officer otherwise than in an honest attempt to perform the functions of his or her office whereby loss is caused to a plaintiff. Malice, knowledge and reckless indifference are states of mind that stamp on a purported but invalid exercise of power the character of abuse of or misfeasance in public office. If the impugned conduct then causes injury, the cause of action is complete. " (References omitted).

503 Deane J identified the elements of the tort as follows (at 370-371): "… the tort of misfeasance in public office is "well-established". Its elements are: (i) an invalid or unauthorised act; (ii) done maliciously; (iii) by a public officer; (iv) in the purported discharge of his or her public duties; (v) which causes loss or harm to the plaintiff…The critical element for present purposes is malice.

In the context of misfeasance in public office, the focus of the requisite element of malice is injury to the plaintiff or injury to some other person through an act which injuriously affects the plaintiff. Such malice will exist if the act was done with an actual intention to cause such injury. The requirement of malice will also be satisfied if the act was done with knowledge of invalidity or lack of power and with knowledge that it would cause or be likely to cause such injury. Finally, malice will exist if the act is done with reckless indifference or deliberate blindness to that invalidity or lack of power and that likely injury. Absent such an intention, such knowledge and such reckless indifference or deliberate blindness, the requirement of malice will not be satisfied." (References omitted) 504 The Court returned to the subject in Sanders v Snell, where Gleeson CJ, Gaudron, Kirby and Gummow JJ made it clear (at 344 and 350) that the tort is an intentional tort, and is dependent upon the defendant being shown to have failed to make an honest attempt to exercise the relevant power. In addition, their honours observed: " Questions of holding public officials liable for acts done apparently in furtherance of their duty raise very different considerations from those that may arise in relation to economic torts committed by private persons. Misfeasance in public office is concerned with misuse of public power. Inappropriate imposition of liability on public officials may deter officials from exercising powers conferred on them when their exercise would be for the public good. But too narrow a definition of the ambit of liability may leave persons affected by an abuse of public power uncompensated. The tort of misfeasance in public office must seek to balance these competing considerations. Not surprisingly, identifying the intention with which the public official acts has a prominent place in striking that balance. The considerations that arise the case of public officials do not arise in a dispute between private citizens about economic harm allegedly inflicted by one on the other. There the focus may be less on the intention of the alleged tortfeasor than it is on the means employed because the intended pursuit of economic advantage (and resulting economic harm to rivals) is central to competition. Equating the tort of misfeasance with a tort of wrongful interference with economic interests or subsuming the tort of misfeasance in that latter tort would pay too little regard to the different considerations that we have mentioned." …

Adding " [39]… Because misfeasance in public office is concerned with performance of public duties, and because the tort of unlawful interference is concerned primarily with private, not public interests, misfeasance in public office should not be subsumed in some wider economic tort. In particular, what is an unlawful act for the purposes of one tort is not necessarily an unlawful act for the purposes of the other." 505 It is not entirely clear that the majority in Mengel specified a need for the plaintiff to prove foreseeability of the injury by the defendant, although on a possible reading of the passage earlier cited, it did so inferentially. Whether, in that passage, they intended to import the concepts associated with its use in the context of negligence, is by no means clear. What is however, clear, is that the formulations of Brennan and Deane JJ did not embrace it as a requirement, nor did the judgment of the New Zealand Court of Appeal in Garrett v Attorney-General [1997] 2 NZLR 352. 506 The Court of Appeal there observed (at 349-350) that: " … it is insufficient to show foreseeability of damage caused by a knowing breach of duty by a public officer. The plaintiff, in our view, must prove that that official had an actual appreciation of the consequences for the plaintiff, or people in the general position of the plaintiff, of the disregard of duty or that the official was recklessly indifferent to the consequences and can thus be taken to have been content for them to happen as they would. … The tort is not restricted to a case of deliberately wanting to cause harm to anyone; it also covers a situation in which the official's act or failure to act is not directed at the injured party but the official sees the consequences as naturally flowing for that person when exercising power. In effect this is no more than saying the tort is an intentional tort. In this context, a person intends to bring about the known consequences of his or her actions or omissions, even if other consequences form the primary motive. " 507 The reason which it offered for its assessment that the tort should not be extended to cover a wrongful act, which was done without a realisation of the consequences for the plaintiff, was explained thus (at 350-351): " … In our view this intentional tort should not be allowed to overflow its banks and cover the unintentional infliction of damage… We prefer to err on the side of caution and not to extend the potential liability of officials for causing unforeseen damage. To do so may have a stultifying effect on governance without commensurate benefit to the public… The common law has long set its face against any general principle that invalid administrative action by itself gives rise to a cause of action in damages by those who have suffered loss as a consequence of that action. There must be something more. And in the case of misfeasance of public office that something more, it seems to us, must be related to the individual who is bringing the action. While the cases have made it clear that the malice need not be targeted there must, as we have said, be a conscious disregard for the interests of those who will be affected by the making of the particular decision." 508 In Three Rivers District Council v Governor and Company of the Bank of England (No 3) (2000) 2 WLR 1220, Lord Steyn (at 1231) in the House of Lords, with whose reasons Lord Hope (at 1236) agreed, accepted that there were two different forms of liability for misfeasance in public office: " First there is the case of targeted malice by a public officer, i.e. conduct specifically intended to injure a person or persons. This type of case involves bad faith in the sense of the exercise of public power for an improper or ulterior motive. The second form is where a public officer acts knowing that he has no power to do the act complained of and that the act will probably injure the plaintiff. It involves bad faith inasmuch as the public officer does not have an honest belief that his act is lawful." 509 Lord Steyn saw, in the early development of the tort, a distinction between the two forms of the tort, as well as "the unifying element of conduct amounting to an abuse of power accompanied by subjective bad faith". His Lordship similarly accepted that recklessness is a sufficient state of mind to ground the second form of the tort, observing:

"This is an organic development, which fits into the structure of our law governing intentional torts. The policy underlying it is sound: reckless indifference to consequences is as blameworthy as deliberately seeking such consequences. It can therefore now be regarded as settled law that an act performed in reckless indifference as to the outcome is sufficient to ground the tort in its second form." 510 Recklessness in this sense, his Lordship added, is to be considered in a subjective rather than in an objective sense. 511 The House of Lords expressed a clear preference for a test of knowledge that the relevant act would probably damage the plaintiff, to one of foreseeability risk of harm to that party. Lord Steyn observed, in this respect (at 1235): "A test of knowledge or foresight that a decision would cause damage does not readily fit into the standard of proof generally required in the law of tort, and specifically in the case of intentional torts. Moreover, this test unnecessarily emasculates the effectiveness of the tort." 512 After noting that "apart from the Mengel case" there had been no judicial support for a foreseeability test, his Lordship continued (at 1235): " Enough has been said to demonstrate the special nature of the tort, and the strict requirements governing it. This is a legally sound justification for adopting as a starting point that in both forms of the tort the intent required must be directed at the harm complained of, or at least to harm of the type suffered by the plaintiffs. This results in the rule that a plaintiff must establish not only that the defendant acted in the knowledge that the act was beyond his powers but also in the knowledge that his act would probably injure the plaintiff or person of a class of which the plaintiff was a member. In presenting a sustained argument for a rule allowing recovery of all foreseeable losses counsel for the plaintiffs argued that such a more liberal rule is necessary in a democracy as a constraint upon abuse of executive and administrative power. The force of this argument is, however, substantially reduced by the recognition that subjective recklessness on the part of a public officer in acting in excess of his powers is sufficient. Recklessness about the consequences of his act, in the sense of not caring whether the consequences happen or not, is therefore sufficient in law. " 513 Lord Hutton observed (at 1262): "..I consider that the second limb of the tort cannot be viewed in isolation from the first limb and that the concept of targeted malice which is the underlying principle of the first limb exercises a restrictive effect on the ambit of the second limb. This is implicit in … the judgment of Oliver L.J. in the Bourgoin case … because Oliver L.J. said: "If an act is done deliberately and with knowledge of its consequences, I do not think that the actor can sensibly say that he did not 'intend' the consequences or that the act was not 'aimed' at the person who, it is known, will suffer them." Therefore it was his opinion that if a person acts deliberately, knowing that his action will injure another person, he must be taken to intend the consequences and is equated with the person who acts with the intent to cause injury. This is a view which is inconsistent with a liability which arises where there is an abuse of power without knowledge that it will probably injure the plaintiff but where the abuse is an effective cause of such injury. " (References omitted) 514 His Lordship regarded the judgment of Deane J in Mengel as important, because it emphasized that the second limb of the tort was a species of malice, and that the requirement of malice would be satisfied where the public officer knows that the abuse of power will cause injury, or is recklessly indifferent or deliberately blind to the likely injury (at 1263). His Lordship concluded (at 1267): "if the public officer knows that his unlawful conduct will probably injure another person, or is reckless as to that consequence, the plaintiff does not need to show, before liability can arise, some other link or relationship between him and the officer. The requirement of foresight of probable harm to the plaintiff, or recklessness as to such harm, is sufficient to ensure that the tort is confined within reasonable bounds." 515 His Lordship similarly confirmed (at 1268), that bad faith is at the heart of the tort, observing: "The official must have dishonestly exceeded his powers and he must thereby have caused loss to the plaintiff which has the requisite connection with his dishonest state of mind. The correct formulation of this nexus is one of the points of difficulty coupled with the formulation of what state of mind of the official has to be shown"

adding (at 1269): "The official concerned must be shown not to have had an honest belief that he was acting lawfully; … This requirement is therefore one which applies to the state of mind of the official concerning the lawfulness of his act and covers both a conscious and a subjectively reckless state of mind, either of which could be described as bad faith or dishonest. The next requirement also relates to the official's state of mind but with regard to the effect of his act upon other people. It has three limbs which are alternatives and any one of which suffices. First, there is what has been called "targeted malice." Here the official does the act intentionally with the purpose of causing loss to the plaintiff, being a person who is at the time identified or identifiable. This limb does not call for explanation. The specific purpose of causing loss to a particular person is extremely likely to be consistent only with the official not having an honest belief that he was exercising the relevant power lawfully. If the loss is inflicted intentionally, there is no problem in allowing a remedy to the person so injured.

Secondly, there is what is sometimes called "untargeted malice." Here the official does the act intentionally being aware that it will in the ordinary course directly cause loss to the plaintiff or an identifiable class to which the plaintiff belongs. The element of knowledge is an actual awareness but is not the knowledge of an existing fact or an inevitable certainty. It relates to a result which has yet to occur. It is the awareness that a certain consequence will follow as a result of the act unless something out of the ordinary intervenes. The act is not done with the intention or purpose of causing such a loss but is an unlawful act which is intentionally done for a different purpose notwithstanding that the official is aware that such injury will, in the ordinary course, be one of the consequences... Thirdly there is reckless untargeted malice. The official does the act intentionally being aware that it risks directly causing loss to the plaintiff or an identifiable class to which the plaintiff belongs and the official wilfully disregards that risk. What the official is here aware of is that there is a risk of loss involved in the intended act. His recklessness arises because he choses wilfully to disregard that risk.

The use of the words foreseen or foreseeable is to be avoided. They are concepts borrowed from the law of negligence. This tort concerns deliberate acts. Thus in the first limb the criterion is having a specific purpose, a different concept from foresight. In the second limb the concept is acting intentionally with the knowledge that the act will have a particular consequence in the ordinary course. This is like foresight but represents rather a state of mind which colours the intentional or deliberate act. " 516 Lord Millett similarly noted that the core concept of the tort was abuse of power (at 1273), and offered the following rationale for the two limbs which have been traditionally recognised: "The rationale underlying the first limb is straightforward. Every power granted to a public official is granted for a public purpose. For him to exercise it for his own private purposes, whether out of spite, malice, revenge, or merely self-advancement, is an abuse of the power. It is immaterial in such a case whether the official exceeds his powers or acts according to the letter of the power… His deliberate use of the power of his office to injure the plaintiff takes his conduct outside the power, constitutes an abuse of the power, and satisfies any possible requirements of proximity and causation.

The rationale of the second limb is not so transparent. The element of knowledge which it involves is, in my opinion, a means of establishing the necessary intention, not a substitute for it. But intention does not have to be proved by positive evidence. It can be inferred. Proof that the official concerned knew that he had no power to act as he did and that his conduct would injure the plaintiff is only the first step in establishing the tort. But it may and will usually be enough for the necessary intention, and therefore of the requisite state of mind, to be inferred." 517 The protracted litigation between the Council and the Bank came back to the House of Lords in 2001 (reported as Three Rivers District Council v Bank of England (No 3) [2001] 2 All ER 513. Lord Hope and Lord Hutton, expressing the opinions of the House, identified the elements of the tort in broadly similar ways. Lord Hope said (at 526), in relation to the elements of the tort:

" First, there must be an unlawful act or omission done or made in the exercise of power by the public officer. Second, as the essence of the tort is an abuse of power, the act or omission must have been done or made with the required mental element. Third, for the same reason, the act or omission must have been done or made in bad faith. Fourth, as to standing, the claimants must demonstrate that they have a sufficient interest to sue the defendant. Fifth, as causation is an essential element of the cause of action, the act or omission must have caused the claimant's loss." 518 Lord Hutton said (at 550): " a plaintiff must prove (1) an abuse of the powers given to a public officer; (2) that the abuse was constituted by a deliberate act or deliberate omission by the public officer with knowledge that the act or omission was wrongful or with recklessness as to whether or not the act or omission was wrongful; (3) that the public officer acted in bad faith; and (4) that the public officer knew that his act or omission would probably injure the plaintiff or was reckless as to the risk of injury to the plaintiff. In addition the plaintiff must prove that the act or omission caused him loss." 519 In relation to the mental element required, Lord Hope said that in cases of untargeted malice (at 527): " the required mental element is satisfied where the act or omission was done or made intentionally by the public officer (a) in the knowledge that it was beyond his powers and that it would probably cause the claimant to suffer injury, or (b) recklessly because, although he was aware that there was a serious risk that the claimant would suffer loss due to an act or omission which he knew to be unlawful, he willfully chose to disregard that risk… the fact that the act or omission is done or made without an honest belief that it is unlawful is sufficient to satisfy the requirement of bad faith. In regard to alternative (a), bad faith is demonstrated by knowledge of probable loss on the part of the public officer. In regard to alternative (b), it is demonstrated by recklessness on his part in disregarding the risk." 520 His Lordship observed that "recklessness" was demonstrated: " where it is shown that the public officer was aware of a serious risk of loss due to an act or omission on his part which he knew to be unlawful but chose deliberately to disregard that risk." 521 In an article "International Abuse of Public Authority: A tale of Three Rivers", by Robert J Sadler, 2001, 21 Aust Bar Rev 151, in which consideration was given to these authorities, it was suggested that: " there appears to be a coalescing of judicial opinion to the effect that in order to demonstrate misfeasance, the plaintiff must prove that: 1. The defendant held a public office; 2. The defendant's conduct was both: a) in purported exercise of his or her power as a public officer, and b) unlawful. 3. The defendant acted in bad faith by either: a) intending to injure the plaintiff or a class of persons of which the plaintiff is a member, or,

b) … i.A. acting with knowledge that he or she had no power, or B. acting with reckless indifference as to the absence or excess of his or her power, and ii.A. acting with knowledge that his or her conduct would probably injure the plaintiff or a class of persons of which the plaintiff is a member, or B. acting with reckless indifference as to risk of injury of his or her conduct to the plaintiff or a class of persons of which the plaintiff is a member.

4. The defendant's conduct caused injury to the plaintiff." 522 The area of debate in these authorities has principally involved the mental element. In his helpful and, in my respectful view, a correct analysis of the current state of the law concerning this aspect of the tort, which I will adopt for the purposes of this case, Sadler noted (at 9 to 10): " 1. Targeted malice Mengel, Garret and Three Rivers (No 3) (2000) and (2001) each separately endorse the proposition that where the official does the impugned act intentionally with the specific purpose of causing loss to the plaintiff, being a person who is at the time identified or identifiable, then that is sufficient proof of the defendant's state of mind to meet the mental element required to maintain the action. 2. Knowledge ('Untargeted malice') It is sufficient that the defendant does an act which he or she knows is beyond power. Less certainty exists about the knowledge required by the defendant as to the injurious consequences of his or her unauthorized act. The majority in Mengel arguably required that there need be a 'foreseeable risk of harm'. Brennan J required knowledge that the act was 'calculated to produce injury'. Deane J required knowledge that the act 'would cause or be likely to cause such injury'. The Court of Appeal in Garrett required 'an actual appreciation of the consequences' for the plaintiff, or people in the general position of the plaintiff, and that the defendant saw 'the consequences as naturally flowing'. The court was not prepared to extend the potential liability of officials for causing unforeseen damage. In Three Rivers (No 3) (2000), Lord Steyn required knowledge that 'the act would probably injure the plaintiff or person of a class of which the plaintiff is a member'. Lord Hutton required that the public officer had foresight of probable harm to the plaintiff. Lord Hobhouse required that the defendant have 'an actual awareness that the act will in the ordinary course directly cause loss to the plaintiff or an identifiable class to which the plaintiff belongs.' Three Rivers (No 3) (2001) establishes that where the act or omission was done or made intentionally by the public officer in the knowledge that it was beyond his powers and that it would probably cause the claimant to suffer injury, the fact that the act or omission is done or made without an honest belief that it is lawful, and knowledge of probable loss, is sufficient to satisfy the requirement of bad faith. 3. Reckless indifference ('Reckless untargeted malice') Mengel, Garret and Three Rivers (No 3) (2000) and (2001) maintained that an alternative to targeted malice or knowledge of lack of power is a reckless disregard or indifference as to the availability of power to support the impugned conduct and the resulting injury. Three Rivers (No 3) (2001) established that the plaintiff must show that the public officer was aware of a serious risk of loss due to the impugned act but chose deliberately to disregard that risk. The absence of an honest belief in the lawfulness of the conduct that gives rise to the risk of injury satisfies the element of bad faith or dishonesty. The greater the risk of loss the easier it is likely to be to say that loss was probable and the easier it will be to find that where that risk was known, believed or suspected there was recklessness. The question whether at any given point of time that risk is sufficiently serious to justify a finding of recklessness is one of degree. 4. Constructive knowledge Mengel, Garret and Three Rivers (No 3)(2000) maintained that an objective test of constructive knowledge of an excess of power was insufficient to constitute the form of knowledge required to establish the tort. This rejection amplifies the fact that misfeasance requires a personal and subjective intent to act beyond power and to cause injury or at least a reckless indifference as to that absence of power or ensuing harm." 523 A side issue, although one that has a relevance for the present case, concerns whether or not an omission to exercise an available power can give rise to the tort. Brennan J in Mengel (at 355) regarded acts of commission and omission as equivalent. Lord Hope agreed with his Honour's analysis in Three Rivers (No 3) (2001) (at 534-5). 524 While the tort has been framed in terms of "misfeasance" rather than "nonfeasance", dishonesty or bad faith is at its core, and a deliberate decision not to act, or to exercise the power, would seem to suffice. 525 Finally, in relation to this tort, I note that the protective provision contained in clause 4 of the first schedule to the Rural Lands Protection Act could not be enlisted in aid of the defendants, if their acts or omissions were done in bad faith. In this respect the decisions of the High Court in Little v The Commonwealth (1974) 75 CLR 94 and Trobridge v Hardy (1955) 94 CLR 147 support the view that a clause of this kind cannot operate as a defence where the elements of misfeasance in public office, which depend upon bad faith, are established. 526 It is the plaintiffs' contention that the acts of the defendants involved either targeted malice or that they acted in the way complained of with knowledge that each of them had no relevant power or authority, and with the knowledge that their acts would probably injure the plaintiffs. 527 Specifically, they assert that Mr Williams knew that:

(ii) that he had no basis or authority for their detention or for the order for their removal from the stock route and return to Glen Innes, and

(iii) that such order would harm them, both in the trucking exercise and in depriving them of the feed available on the TSR.

528 In relation to the actions of both Messrs Smith and Montgomery, the plaintiffs assert that they acted both with malice, and with knowledge that they had no power to act in the ways complained of in so far as they:

(i) knew that the sheep were not exhibiting signs of lice;

(ii) exhibited malice in refusing to inspect the sheep, in refusing to let the sheep be dipped, in treating the Perretts differently from Mr Meehan, in giving their sheep to Mr Tucker, and in delaying or refusing to release the remaining sheep on "Abbotsford" until instructed to do so. (iv) Trespass to Goods and to Land 529 Unlike the other torts relied upon in these proceedings, the law in relation to trespass is settled. Trespass to goods involves an act of the defendant which directly and either intentionally or negligently, and without lawful justification, affects the plaintiff's possession of a chattel. Taking goods out of the plaintiff's possession, moving them from one place to another, or causing damage to them, may constitute such a trespass. Where the relevant act is carried out pursuant to proper authority, for example pursuant to a warrant, or statutory power then no tort has been committed: Bayliss v Cassidy SC QLD, 18 September 1998. 530 Trespass to land involves an act of the defendant, direct entry of land in the possession of the plaintiff, or conduct directly infringes that possession, committing without lawful justification. Trespass to land is actionable without proof of damage: Plenty v Dillon (1991) 171 CLR 635. 531 A trespass occurs where a person wrongfully sets foot on another's property, or breaks a fence on the property. Persons who enter as of right or pursuant to statutory power in execution of a public duty, do not commit trespass whatever may be the will of an occupier: Plenty v Dillon.

D. LIABILITY OF THE BOARDS AND OF THE STATE 532 The second further amended statement of claim does not allege the existence of any duty of care, or breach thereof, on the part of the Boards or of the State of New South Wales. It is, in fact, silent as to the basis upon which any such party was joined, although so far as the submissions dealt with this aspect of the case, their liability, it seems, is said to have arisen vicariously. 533 It is upon that basis that I propose to deal with the case concerning those three parties. 534 For many years the law concerning the vicarious liability of an employer for its servants has been accepted to be that declared in Deatons Pty Limited v Flew (1949) 79 CLR 370, a case involving the asserted liability of the owner of a hotel, for the act of a barmaid employed by it, in throwing beer and a glass at an intoxicated customer. It was there held that, as her act was an independent personal act which was not connected with, or incidental, in any manner, to the work which she was either expressly or impliedly authorised to perform, vicarious liability did not attach. The test applied was one dependent upon whether or not the act relied upon was shown to come within the scope of the servant's authority. 535 It is with the definition of that which falls within the scope of an employee's responsibility, and with the identification of a consistent and acceptable jurisdictional basis for the determination of such issue, that subsequent cases have struggled. 536 For example, in Commonwealth of Australia v Connell (1986) 5 NSWLR 218, Glass JA, with whom Samuels and Priestly JJA agreed, observed, in a case involving the asserted vicarious responsibility of the Commonwealth for the actions of a member of the armed services (at 221): " the expression 'acting in the course of his service' as applied to a member of the armed forces and 'acting within the scope of his duty' as applied to a police officer should mutatis mutandis receive the same construction as 'acting within the scope of his employment' as applied to an employee when determining whether the Crown has incurred vicarious liability. In Deatons Pty Ltd v Flew Latham CJ defined the scope of employment or authority as being an act which the servant was employed to perform or an act incidental to his employment. Dixon J referred to acts done under express or implied authority or as incident to or in consequence of anything the employee was employed to do. Webb J pointed out that vicarious liability exists for an act done within express or implied authority even though it amounts to an improper mode of exercising authority. The inclusion within the scope of employment of unauthorised modes of performing what is authorised and the exclusion from it of wholly unauthorised acts raises difficult problems of classification. But it is a criterion originally formulated by Salmond in his work on Torts, 9th ed, which has received the imprimatur of the House of Lords in Canadian Pacific Railway Co v Lockhart and of the High Court in Bugge v Brown. I would conclude that conduct by an apprentice sailor is within the scope of his service or duty or authority if it is authorised expressly or impliedly or is incidental to what he is authorised to do even though it may be performed in an unauthorised way. If, however, it is not authorised expressly or impliedly and is not so connected with authorised conduct as to be an improper mode of performing it, it is an independent unauthorised act and is outside the scope of his service." (References omitted). 537 It is convenient first to consider the position upon the assumption that rangers and inspectors are employees or servants for whose acts or omissions the Boards and the State on behalf of the Department might potentially be vicariously responsible, that is, where those acts or omissions fall within the scope of their employment, and they are tortious. 538 The question of vicarious responsibility has most recently been considered by the High Court, in State of New South Wales v Lepore (2003) 77 ALJR 558, an appeal which was heard in conjunction with the appeals in Samin v Queensland and Rich v Queensland. 539 Each involved the question whether the relevant authority was vicariously liable for an alleged sexual assault on a pupil by a teacher. Their liability, it was argued, arose either vicariously, or from the non-delegable duty of care that was said to have been owed. 540 As I have already observed, the present is not a case where a duty of care, on the part of the Board, and the Department representing the State, was alleged, whether non-delegable or otherwise. I am satisfied, in any event, for the same reasons as those applicable to the individual defendants, that the Board and the Department did not owe any duty of care to the plaintiffs, let alone a non-delegable duty. A duty of the last mentioned kind would depend upon the existence of a special relationship of the kind considered in Commonwealth v Introvigne (1982) 150 CLR 258; Kondis v State Transport Authority (1984) 154 CLR 672; Burnie Port Authority v General Jones Pty Limited (1994) 179 CLR 520 and Scott v Davis (2000) 204 CLR 333. 541 The relationship between the Boards and the Department, and an individual grazier, could not satisfy the degree of supervision or control or involve the assumption of a particular responsibility, required for the imposition of such a duty. 542 Lepore is, accordingly, of relevance for present purposes, only in so far as it dealt with the circumstances in which vicarious liability may arise for deliberate acts or omissions on the part of employees or servants. It is, however, a decision in which some differences emerge in the application of the principle stated in Deatons Pty Limited v Flew. 543 Gummow and Hayne JJ relevantly said (at 239): "…when an employer is alleged to be vicariously liable for the intentional tort of an employee, recovery against the employer on that basis should not be extended beyond the two kinds of case identified by Dixon J in Deatons: first, where the conduct of which complaint is made was done in the intended pursuit of the employer's interests or in the intended performance of the contract of employment or, secondly, where the conduct of which complaint is made was done in the ostensible pursuit of the employer's business or the apparent execution of the authority which the employer held out the employee as having. " 544 Gaudron J said (at 130-131): "The only principled basis upon which vicarious liability can be imposed for the deliberate criminal acts of another, in my view, is that the person against whom liability is asserted is estopped from asserting that the person whose acts are in question was not acting as his or her servant, agent or representative when the acts occurred. … Ordinarily, a person will not be estopped from denying that a person was acting as his or her servant, agent or representative unless there is a close connection between what was done and what that person was engaged to do. That was the focus of the attention of the House of Lords in Lister. However, that is not, of itself, the test of estoppel. Ultimately, the test is whether the person in question has acted in such a way that a person in the position of the person seeking the benefit of the estoppel would reasonably assume the existence of a particular state of affairs. In the case of vicarious liability, the relevant state of affairs is simply that the person whose acts or omissions are in question was acting as the servant agent or representative of the person against whom liability is asserted. " 545 Gleeson CJ reviewed several of the cases in which employers had been found vicariously liable for torts committed by their employees in the course of their employment, as well as those where the act of the employee had been regarded as an independent act, or one characterised as having involved a frolic of his own. 546 Among the cases reviewed were Lloyd v Grace Smith & Co [1912] AC 716 where a firm of solicitors was held liable for a fraud committed in relation to a client, upon the basis that it was a tortious act committed by the clerk in conducting business which he had a right to conduct honestly (per Earl Loreburn), or upon the basis that the employers, having placed the clerk in the position of doing certain acts, they should be answerable for the manner in which he conducted himself. 547 Other instances of a similar kind included Morris v CW Martin & Sons Limited [1966] 1 QB 716, where a cleaner was held responsible for the act of an employee who was given the task of cleaning a fur, but who stole it. Again, the liability arose because the employee was considered to have been dealing with the fur in the scope of his employment. 548 On the other side of the coin was the act of the barmaid in Deatons Pty Limited v Flew, whose conduct did not constitute an excessive method of discharging any duties entrusted to her; rather, it was a spontaneous act of retributive justice, and hence an independent act. 549 Gleeson CJ observed that: " A security guard at business premises who removes a person with unnecessary force may be acting in the course of employment. On the other hand, as Jordan CJ pointed out in Deatons Pty Ltd v Flew, extreme and unnecessary violence, perhaps combined with other factors, such as personal animosity towards the victim, might lead to a conclusion that what is involved is an act of purely personal vindictiveness." 550 As his Honour saw it, the critical question in such cases seems to turn upon the sufficiency of the connection between what the employee is employed to do, and the act complained of. That in turn may depend on the nature of the employee's responsibility, and the extent of the authority given to that person. It may also turn, as did Deatons Pty Limited v Flew, upon whether or not the act of the employee was one of personal vindictiveness. 551 In the present case, I would be inclined to the view that vicarious liability would be established, had the individual defendants been shown to have acted in a capacity where vicarious liability would attach (as to which see later), and had they been adjudged to have personally committed the torts of misfeasance in public office, negligence or trespass alleged. 552 That would follow from the circumstance that, in general terms and subject to the matter to which I next turn, they had authority to carry out acts of the nature complained of, that is, to detain or quarantine sheep, to require or supervise their treatment before movement, and to act in ways designed to ensure their humane treatment. There was a close connection between their conduct in relation to the plaintiffs' sheep and the specific area of their approved work responsibilities. Moreover, many, if not all, of their actions were carried out in circumstances where they reported what they had done to more senior officers, and acted either with their approval, or subject to their direction. 553 Even if malice had been established, the case would, in my view, have been a step away from that considered in Deatons Pty Ltd v Flew; rather, it would have been more akin to the conduct involved in Lloyd v Grace Smith and Morris v CW Martin and Sons Ltd. 554 However, since for the reasons later outlined, I am not satisfied that primary liability has been established on the part of the individual defendants for the torts of negligence, misfeasance in public office or trespass, it follows that no vicarious liability can attach to the Boards or to the State. Accordingly, I would enter a verdict for those three parties. 555 Before parting from this aspect of the case, I do however observe that the Boards accepted that vicarious liability would have attached had the individual defendants been found guilty of negligence or trespass in the discharge of their duties as Rangers, Stock Inspectors, and Veterinarians, accepting, in that respect, that the common law in relation to independent office holders had been reversed by reason of s 7 of the Law Reform (Vicarious Liability) Act 1983. 556 The State, however, sought to draw a distinction, depending upon whether the relevant acts were performed by the individual defendants in their capacity as a ranger or stock inspector or as a district veterinarian. In the case of negligence or trespass by the individual defendants acting as stock inspectors, vicarious responsibility was accepted to exist by reason of s 8 of the Law Reform (Vicarious Liability) Act. It was not accepted in relation to any acts done as a Ranger, or as a District Veterinarian, upon the basis that such work was done on behalf of the Boards, rather than on behalf of the State. 557 In relation to acts constituting misfeasance in public office, it was submitted both by the Board and by the State that vicarious liability did not attach, reliance being placed in that regard upon Deatons Pty Ltd v Flew and Lepore. 558 These submissions were advanced in circumstances where all defendants were represented by the same solicitor and counsel. A potential conflict of interest can be identified in that regard since, depending upon the capacity in which the individual defendants might have been found personally liable, and the basis thereof, so might they have wished to argue that vicarious liability did attach, and that they were entitled to be indemnified, by their employer and if necessary, permitted to present a cross claim against the Board or the State. 559 Mindful of that consideration, I do not propose to decide any further issue which might have arisen in respect of this aspect of the defence submissions, noting that the preliminary view offered in relation to misfeasance is predicated upon the basis that the relationship between the individual defendants (arising out of the capacities in which they acted) and the Boards or the State, was one which potentially attracted vicarious liability. 560 In the event of my primary findings on the liability of the individual defendants being reversed, it would be necessary to allow, to each of the defendants, the opportunity to be heard, upon the position taken by the State or by the Boards, in so far as those parties either dispute vicarious liability for acts of misfeasance in public office, or accept such liability in relation to work carried out in one capacity, but deny it in relation to work carried out in another capacity.

E. HAVE THE PLAINTIFFS ESTABLISHED LIABILITY ON THE PART OF THE DEFENDANTS? 561 In the light of my summary of the evidence, and of the relevant principles of law, I will next proceed to a determination of the question whether the plaintiffs have made good their allegations as to misfeasance in a public office, or as to trespass either to goods or land. It is again convenient to deal with that question in relation to the principal events complained of, although almost inevitably any finding of actual malice, or knowledge as to an absence of power, in relation to any one event, will carry over to a later event or events.

1. The Detention on the Moree TSR and the Return of the Sheep to the Glen Innes Cause of Action 562 A fundamental issue in this regard is whether Mr Williams actually found lice in one of the sheep, on 24 September 1991, as he described, or honestly held a belief or a suspicion to that effect. 563 To a considerable extent, this depends upon the credibility of the witnesses who were called on either side of the record, as to the events on the TSR. It is an issue however, upon which the plaintiffs had the onus of proof. 564 I accept that the sheep which the plaintiffs, Mr Meehan and Mr McRae placed onto the route had been shorn and dipped, and were most probably lice free in the initial stages of the droving. However, that does not provide the answer to this aspect of the case if it be true first, that the mob were joined by some stray Tukidale lambs with wool, at some time before the 24 September inspection, and secondly, that those sheep had lice. 565 The plaintiffs were not necessarily in a position to know whether, in a mob of 5000 or so sheep plus lambs, some stray sheep had been picked up, since for a good part of the time they were away from the mob looking after their cattle. 566 I can see no reason to disbelieve Mr Clarke when he said that he was shown lice by Mr Williams. He was a witness who gave every indication of being reliable and truthful, he was independent and he had no reason to lie. Similarly Mr Williams left me with the impression of being an honest and responsible ranger, who had no particular reason to single out the Perretts for unfair treatment. While there may be some argument in relation to the colour of lice, at their various stages of development, it was clear that he recognised the presence of banding, and I am satisfied that he was able to recognise lice from his experience in the industry, and that he was competent in the discharge of his duties. 567 There is no reason to suppose that he acted at the instance of Mr Smith, or was asked by that officer to depart from the proper discharge of his duties, in a way that would have constituted a very serious abuse of his powers. I accept that they did not know each other and had not been in communication with one another. 568 Up to the time of the inspection on 24 September Mr Williams had behaved professionally, and entirely within the proper scope of his authority in detaining the sheep and in conducting an initial lice and footrot inspection. Accordingly I am satisfied that he did find lice on the sheep, or at least honestly believed that he had done so, and as a result, as a junior ranger, informed Mr Hovenden, the senior ranger of that fact. I reject as incorrect the proposition floated by the plaintiffs that he accepted Mr McRae's advice, but faced with the task of finding stray sheep in the mob, decided that it would be too hard to do so, and thereafter pretended to find lice believing that it would be prudent to detain the mob. The task of finding the sheep would not have been difficult if as he, Mr McRae and Mr Clarke said, they were woolly sheep which would then have stood out from the mob. 569 The plaintiffs, on the other hand, I am satisfied had not properly attended to their responsibilities in taking the mob onto the stock route without a pre-transport footrot inspection, and without warning of their arrival. Additionally, I am satisfied that the arrangements for their droving were somewhat haphazard, as indicated by various failures to keep the mob together, an insufficiency of and change in the personnel responsible for them as well as disputes between Mr Perrett and Mr McRae culminating in the latter letting the stock out and walking off. 570 That action did not present Mr McRae in a particularly credible light. Nor did his initial response to the subpoena which had been served upon him. However, I find his evidence to have been credible so far as he said that he had found, and had reported the fact, that some lousy sheep had joined the mob. It may well be that he made the report at a time when he was annoyed by the plaintiffs. It may also be the case that the making of such a report was one way of getting his stock back off the route. However, I am not satisfied that he lied in relation to the presence of these sheep in the mob, or in relation to the findings of lice. 571 The plaintiffs' case, I believe, was shaken in many respects, commencing with the events on the TSR, and most particularly, at that time, the claims which they made to a very significant number of deaths at the 26 Mile point. 572 I find it inconceivable that they would have left lying on the stock route, unburied or unburned, the number of carcasses which they say were simply abandoned there. Had they done so then that behaviour would have been absolutely inexcusable, even allowing for the fact that, on their account, most of the deaths were of young lambs, whose carcasses may have been disposed of relatively promptly by various predators. 573 However, more crucial, in my view, was the evidence of the officers from the Moree Board (Messrs Williams, Hovenden, and Beatty), from Mr Clarke who followed the sheep on the route, and from Mr Joiner, the manager of a substantial pastoral holding which adjoined the Wathaga yards and the 26 mile point, that no such event, or sign of it, was seen. There was no evidence from the Local authorities, or from the trucking agencies to support the carnage described by Mr Perrett, notwithstanding the animal welfare and health considerations that would have been involved, as well as the offences under the Rural Lands Protection Act and Stock Diseases Act that would have been committed. As Mr Joiner observed, carnage of this kind would have had "enormous repercussions". 574 Additionally there is no apparent reason why the lambs or ewes should have died prior to being reloaded on trucks. They had water and feed and they were able to range over 3 km, while the lambs were still on their mothers.

575 In the face of the evidence, the plaintiffs' case commences on a poor footing, since I am satisfied, notwithstanding the evidence of Messrs Meehan and Newberry, who claim to have seen some, although lesser numbers, of dead lambs, that Mr Perrett deliberately exaggerated as to this event.

576 I accept that there may well have been a small number of deaths of young lambs, whose carcasses may have gone unnoticed by officers passing in the area in motor vehicles, or even by drovers moving a mob of cattle through the area. However a catastrophic loss involving thousands of lambs and hundreds of ewes could not have gone unnoticed by drovers or by adjoining landholders, or by the Board officers who were present when the sheep were reloaded and taken off the route. 577 I reject as lacking all credibility, the suggestion that the Board employees would not have reported the deaths, or raised any concerns, in case Mr Williams attracted criticism for his actions. Any attempt to effect a cover up would have been bound to fail, and would only have drawn the Board employees into the net. I take the same view in relation to a similar assertion which was advanced to the effect that Mr Montgomery and Mr Smith did not report lamb losses, for fear of criticism.

578 Much the same comment may be made in relation to Mr Perrett's claims of many more deaths when the sheep were unloaded off the trucks at Glen Innes. Again there was no corroboration from adjoining landowners, or, for that matter, from Mr Meehan, who did not notice anything particularly untoward with the return of the sheep, either in terms of animals crushed in the trucks, or mismothering.

579 In relation to the allegation of deaths, both on the TSR and back at Glen Innes, it is also significant that no mention of either event was made to Mr Smith on 3 October, and that there was no reporting of any stock losses in compliance with Condition 12 of the Stock Movement Order which required such a report to have been made to an inspector following arrival at the place of destination. It also cannot be overlooked that Mr Smith and Mr Davidson did not notice any dead sheep on 3 October, and that Ms Harmer, who was called in to visit the property on 17 October, was similarly unaware of any such state of affairs. The attribution by Mr Perrett of the cause of deaths, in relation to the trip back to Glen Innes, to mastitis is, at best, suspect, and it was unsupported by any expert evidence.

580 I see no reason not to accept the evidence of Mr Williams and Mr Smith (as noted in his interview of 3 October 1991) that the Perretts accepted the finding of lice. Particularly is that is so, in the absence of any contemporary complaint by Mr Perrett, for example, to Mr Hovenden, who he trusted as a fair and honest person, that they had been unfairly treated, or victimised, as the result of some request of Mr Smith, or as the result of resentment on the part of Mr Williams, for the refusal of a request, which would have been corrupt, but which I am not satisfied was made, for some free lambs.

581 That allegation, I regret to say, seems to have had a similar flavour to the several allegations that were otherwise made, concerning various earlier acts of victimisation, on the part of Mr Smith, none of which were, in any fashion, supported by corroborative evidence.

582 As the chronology shows, the account initially advanced by Mr Perrett of the Williams' footrot detention order, having followed upon Mr Smith's footrot inspection at Glen Innes, was untrue. Moreover Mr Perrett, having initially advanced a suggestion that Mr Williams had been motivated by resentment as a result of the refusal of the alleged request for lambs, disavowed that assertion in cross examination.

583 There is another area of apparent exaggeration in relation to this aspect of the claim, insofar as Mr Perrett seems to have claimed a fertility and lambing rate well in excess of that which might have been expected, even allowing for favourable pastoral conditions on the TSR. Additionally, there is the circumstance that differing accounts were given by Mr Perrett to Board inspectors as to the ownership of the mob, and as to the identity of the person responsible for them. Another matter which I believe rebounds to the discredit of Mr Perrett was his suggestion, that Mr Hovenden had falsely represented to him that the conditions back at Glen Innes were favourable. Mr Hovenden denied that he had given any such advice, and I accept his evidence as true. Surely Mr Perrett would have directed any such inquiry to neighbours or friends back at Glen Innes rather than to a Moree inspector.

584 There are four matters which do necessitate a critical review of the evidence called by the defence, and which I have expressly taken into account in relation to this issue.

585 First, there is the evidence of Mr Meehan concerning the sheep in which Mr Williams said that he had found the lice. While I do not find him to have been deliberately untruthful, in this respect, I believe that misguided loyalty to the Perretts has led him to a somewhat blinkered recollection of the facts. I take much the same view in relation to Mr Newberry, who seems to have assisted the plaintiffs at later times in effecting some unauthorised stock movements.

586 Secondly, I do entertain some concern that the property from whence the Tukidale lambs came (assuming that Mr McRae's identification of the breed was correct) was not determined, and that no apparent action was taken to follow up those sheep. Their presence in the mob remains something of a mystery, although the evidence showed that the picking up of strays in the course of droving a large mob of sheep is not unusual.

587 It may well be that they came with one or other of the mobs which were transported, at different times, to the stock route and had missed out on being shorn and drenched. It may also be that the Board staff assumed that to have been the case, and gathered that they would be taken back with the remaining sheep. In the absence of a more detailed explanation of this question, I am not however persuaded that it should cause me to doubt the evidence of Mr Williams or of Mr Clarke.

588 Thirdly, there is the consideration that neither Mr McRae or Mr Meehan had any subsequent problem with lice, or with the quarantine of their properties, even though some of their sheep were included in the mob. This is of limited value since it is not necessarily the case that every sheep will be affected. Moreover, Mr McRae was the subject of a similar order to that given to the plaintiffs. Mr Meehan took positive steps to isolate his sheep from the remaining sheep on his property, a course somewhat at odds with his insistence that there was no concern as to the presence of lice in them. Additionally, there was no suggestion that there had been any history of sheep straying from his property, unlike the case with the plaintiffs' properties.

589 Fourthly, there was the evidence of the plaintiffs, and of Mr Meehan and Mr Newberry, to the effect that, when they examined the sheep, they did not find any lice. However, all of the expert evidence, including the departmental literature, as well as the evidence of Mr Sackett and Mr Seaman, showed that the finding of lice in shorn sheep is exceedingly difficult. Mr Perrett's capacity for exaggeration, and his willingness to do so, were indicated by his disagreement with this proposition, and by his insistence that he could find a single louse in a flock of 1000 sheep within 10 minutes.

590 Otherwise of importance for this issue is the circumstance that the finding of any lice in the mob, particularly while it was on the TSR, or even a suspicion thereof, left the inspectors with no discretion other than to act by offering one of the available alternatives. The risk of cross infection within the mob, with stock on adjoining properties, and potentially with a following mob, if a stray was left behind, require positive intervention.

591 To have ignored the problem and to have allowed the mob to continue on the route, even after drafting off the Tukidales, was not an available option, since the problem could already have been passed on to other sheep in the mob. The fact that they had little wool did not help since that only made detection more difficult.

592 While Mr Perrett said that he had received offers for the use of the yards on one property to dip the sheep, and on another to agist them for a time, there was in fact no corroboration of that evidence. In each case I draw a Jones v Dunkel inference. In relation to Mr Kilner there was no firm evidence, other than Mr Perrett's claim to have recently seen him at a medical centre (where he appeared not to recognize him), to show that he was unwell. That is not a sufficient explanation for the absence of an affidavit from him over the seven years that the proceedings have been on foot. No explanation was given for the absence of Mr Boland from the witness box.

593 Even if the appropriate facilities were available, it still left the plaintiffs with a significant problem, since there were difficulties in safely dipping lambs by reason of their age. Unless the whole mob was dipped, and eventually found clear at the end of the six-week period for review, the problem of re-infection remained. In any event, it is not entirely clear to me that Mr Kilner understood that the request was for agistment of more than 5000 sheep, plus lambs, for a period of at least six weeks, or that he would have agreed to that, had he known it to be the case.

594 In those circumstances, a request for the return of the sheep to the property of origin, whether to be held there, or for the immediate sale of the wethers and rams, and for the later sale of the ewes with lambs, to abattoirs, cannot be said to have been unreasonable.

595 I am not, in any event, persuaded by Mr Perrett's evidence that he informed Mr Williams of any alternatives for agisting or dipping the sheep locally, or that such opportunities were in fact available to him. Had they been, it might reasonably have been expected that Mr Perrett would have informed Mr Hovenden of this.

596 There can be no doubt that the power existed, in the presence of a finding or suspicion of lice, for the detention and return of the sheep off the stock route. Indeed, it appears to have been the proper course of action in the factual circumstances, as I have found them to be.

597 Moreover, had the wethers and dry sheep been sold at this time, when they were in good condition, and when prices were favourable, as was the experience with Mr McRae's sheep, and as was supported by the remaining evidence, the plaintiffs' losses would have been substantially reduced.

598 For these reasons, assuming that Mr Williams' actions were the effective cause of the detention of the sheep, and the issue of the order for their movement off the stock route and back to Glen Innes, I am not persuaded that he had been shown to have been guilty of misfeasance in a public office or intimidation, or negligence. There were, however, other obstacles in the way of the plaintiffs making out their case, in relation to this stage of the events. The only notice that Mr Williams issued was a detention order requiring the sheep to be held for inspection. That clearly was of the kind explicitly contemplated by section 7(1)(b) of the Stock Diseases Act, and the order was one that was properly made, in the circumstances of the report and complaints that had been received. To have not taken that course would have involved a dereliction of duty.

599 The order for removal of the stock came from Mr Hovenden rather than from Mr Williams. No case was pursued against him, and no evidence was offered of him having been motivated by malice. Again the issue of the order was within his power.

600 There will accordingly be a verdict for the defendant Williams, since I am not persuaded that a case has been made good against him, whether based in negligence, intimidation or misfeasance in a public office. 2 The Smith Quarantine Cause of Action

601 The plaintiffs allege that Mr Smith was guilty of the torts of negligence, and misfeasance in a public office in relation to the issue of quarantine notices after the return of the stock from Moree, and on 18 November 1991 and on 11 and 14 February 1992. For the reasons already explained, the tort of negligence was not open to the plaintiffs.

602 In support of the claim of misfeasance in a public office, the plaintiffs allege, in substance, that at all material times Mr Smith knew that the sheep were free of lice and that he had no power to issue quarantine orders.

603 The plaintiffs' case faces an immediate problem in relation to the allegation that Mr Smith quarantined the stock after their return from Moree, and on 18 November 1991, in that the evidence showed that he did not do so. It was Mr Hovenden's stock movement order that required the plaintiffs not to permit the stock to stray from "Nassau" and "Rosemeadow", and not to move them without the written permission of an inspector.

604 Although it is clear that Mr Smith did not welcome the return of stock which were suspected or found to have contained lice, to the Glen Innes district, for the reasons expressed in his letter of 30 September 1991, it is the case that he did not issue any formal quarantine order until 14 February 1992, that being a notice in relation to "Abbotsford". The other notices were issued by Mr Montgomery. All of these notices were replaced by the undertakings in lieu of quarantine that were signed by Mr Perrett on 17 February 1992.

605 The question whether malice existed on the part of Mr Smith, whether he believed or suspected, honestly or not, that there were lice in the sheep, and whether he knew or believed that he had the power to issue any quarantine notice, or to undertake the various actions which are the subject of the complaints later discussed, needs to be considered, at the outset, in the light of the events which preceded the removal of the mob from Moree, and the February orders.

606 First, there was the fact that, on 2 July 1991, he had found lice in the poor sheep which had initially been left at Glen Innes, and which had led to the stock movement order of 12 July 1991 (requiring treatment of the sheep), and to their subsequent dipping. Next was the circumstance that it had been reported that the Moree Board had found lice in the sheep on the stock route, and that a senior ranger had issued an order for their return to Glen Innes.

607 Third, there was the circumstance that in July, Mr Smith had noted concerns in relation to the condition of the fencing on "Abbotsford", the absence of adequate sheep feed, and the complaints which had been made of sheep, from the property, roaming the roads at Red Range. These concerns had been sufficient for the Glen Innes Board to have called in Rosemary Harmer of the RSPCA. 608 Additionally, there was the consideration that the Glen Innes region was in extreme drought, and there were potential concerns as to the financial circumstances of the plaintiffs in relation to the actions of the Bank, which had already moved to take possession of "Rosemeadow". There was at least an identifiable possibility of the plaintiffs walking off the properties, or of attempting to hurry a large mob of sheep, which were suspected of having lice, onto local stock routes that were likely to be in demand if the drought continued. Mr Smith's concerns as to the return of the sheep to Moree at the end of September were, accordingly, well founded, and additionally, he had a duty to ensure that they did not stray.

609 In the light of the history to early/mid October, it would have been somewhat unrealistic to expect that Mr Smith could have examined the mob and declared it lice free, since he was entitled to assume, in the absence of some indication to the contrary (of which there was no evidence) that the Moree Board rangers and inspectors had carried out their work honestly and competently. In this regard he had received an advice as to the finding of lice at Moree from Mr Beatty, and from Mr Hovenden on 30 September, and from Mr Williams in his report of 11 October 1991. 610 The subsequent events do not paint any better picture for the plaintiffs' case, since either on 17 October 1991 or 19 November 1991, and possibly on both occasions (depending on the accuracy of memories so far removed from the actual events), and again on 14 February 1992, Mr Montgomery said that he had found lice. 611 Although Mr Smith was an experienced ranger/inspector, and had extensive experience in the sheep industry, he was entitled to respect the opinion of Mr Montgomery, as the District Veterinarian, as to such findings, particularly as there was no apparent reason why the latter would have wished to act unprofessionally, or to have victimised the plaintiffs unfairly. 612 Something of an attack was made in relation to the evidence concerning these findings upon the basis that Mr Montgomery's diary notes were inconsistent with attendances on the relevant dates. However, such attack was without merit since Mr Perrett accepted their presence there, Ms Harmer's diary notes record the attendance of a "PP ranger" on the occasion of her visit on 17 October, and there were stock muster orders for 19 November 1991. 613 I can see no reason for doubting the evidence of either Mr Smith or Mr Montgomery in relation to the findings of lice. There was no apparent explanation for them acting in the way alleged, and each gave the impression to me of being an honest witness, although at times having difficulty in recalling events that occurred more than 10 years ago. The accounts which they gave were, moreover, supported by contemporary documentation, including reports which were circulated to more senior officers of the Board or of the Department of Agriculture. 614 To a considerable extent their hands were also tied by the reported findings at Moree, particularly in the light of the well recognised difficulty in detecting light lice infestations in shorn sheep. 615 The position was then compounded by the reports of the finding of stock which had strayed from "Rosemeadow" on 3 and 22 October 1991 and subsequently, accompanied by what clearly were unauthorised movements of stock between the properties. 616 Again, the plaintiffs face the problem of inaction in relation to any grievance they may have felt. No complaint was made to Mr Shands, or to the Board or Department concerning the reported findings and quarantine action. No attempt was made to pursue the internal appeal procedures available under the Stock Diseases Act (s 21), nor was any attempt made to secure an independent veterinary examination of the sheep. 617 Moreover, a careful analysis of the events which occurred between 2 October 1991 and June 1992, does not bear out the assertion of the plaintiffs that Mr Smith, or Mr Montgomery for that matter, acted unprofessionally and in a way that involved targeted malice or a knowing abuse of their powers. 618 While this analysis of the evidence and of the contemporary records, and my findings in relation thereto, do overlap with the cause of action relating to the fencing problems and the restrictions which were imposed on stock movements between the properties, there are a number of indications that these two defendants were not acting in bad faith. 619 For example, as a result of concerns in relation to the considerable overstocking of the properties, efforts were made to obtain special permission from Queensland to have some of the sheep consigned to an abattoir in that state. Additionally, inquiries were made of local abattoirs and their buyers, and details were provided to Mr Perrett, which he did not pursue, since he took the view that the sheep were breeding stock, and should not be sold for slaughter, even though it would seem that they could have been sold for a profit. 620 Next, Mr Perrett was advised that permission would be granted to move the sheep by hoof to "Abbotsford", provided the fences were made stock proof. Some written orders were also issued, or oral permission was given, to allow fly blown sheep to be moved for treatment, even though other unauthorised movements were occurring. Such orders were also issued to allow at least 900 sheep to be sold to Kilcoy Abattoirs, and to permit a further 40 sheep to be moved to Queensland for slaughter. 621 In a letter dated 20 February 1992, it was made clear that once the "Abbotsford" fences were up to standard, the sheep could be moved there for dipping under the inspector's supervision. 622 Finally in May, Mr Smith issued documentation permitting the movement of sheep from "Nassau" and "Abbotsford" for sale or slaughter; and on 1 June he cleared the sheep on "Rosemeadow", which had been dipped in April, of lice infestation. Mr Montgomery signed quarantine releases of "Nassau" and "Rosemeadow" on 19 June, although he maintained the quarantine of "Abbotsford" since he considered the fences still to be insecure, and because the remaining sheep on the property had not been shorn and dipped. This, the conditions on "Abbotsford", and the poor health of the sheep, led to Mr Montgomery issuing the 18 June order, giving the plaintiffs the option of destroying the sheep, agisting them elsewhere, or selling or transferring them to someone else. 623 Before parting from this aspect of the case, it is clear that in the period leading up to July, the remaining sheep were in very poor condition and that the area was still in drought, with winter approaching. Additionally there was concern as to the intention of the Bank to take over the properties, particularly since it had no interest in the stock, or any obligation to feed them. 624 It is apparent from the reports over the period which I have referred to as "4 May 1992 to 1 July 1992 - Management during quarantine", and the response of more senior officers, that critical welfare concerns were raised, and that alternative solutions were considered and offered to the plaintiffs. It is also clear that they did not respond, other than by inviting media attention to their problems, suggesting the existence of a conspiracy between the Bank and the Department or Board. 625 I am satisfied that there was no such conspiracy, and note that no attempt was made by the plaintiffs to tender any Bank records, which would have been available on subpoena, had they existed, to support such a state of affairs. Their response in this respect may well have been an attempt to use the situation in order to advance their position with the Bank. Whether that is so or not, their response does not assist their credibility. 626 Otherwise the deteriorating condition of the sheep, and of the available pastures, along with the absence of the plaintiffs in Sydney during much of June and July, are of relevance in relation to the bona fides of Mr Smith and Mr Montgomery, and for an assessment of the propriety of the exercise of their powers in relation to quarantine. They are of even more critical relevance for an assessment of the plaintiffs' claim concerning the destruction of sheep in July, which I will deal with later. 627 For these reasons I am unpersuaded that Mr Smith, who impressed me as an honest and credible officer, who was well aware of his duties and powers, and discharged them competently, committed the tort of misfeasance in a public office in relation to this aspect of the case.

3. THE MONTGOMERY QUARANTINE ORDERS CAUSE OF ACTION 628 The allegations of misfeasance in relation to this aspect of the case arise from the amendments, which were made by consent, after the evidence had closed, and in the course of the completion of the submissions. Effectively they embrace the initial period of quarantine following the return of the sheep to Glen Innes, but they also extend to the closing events, which were summarised by me under the heading "21 July 1992 to 31 January 1993 - Quarantine at 'Rosemeadow' and 'Abbotsford'". They also apply to what was said to be an "order", or perhaps more accurately the persuasion or encouragement of Mr Montgomery that the plaintiffs sell their sheep for slaughter. 629 Again, the issue must be considered in context, and in the light of my findings concerning Mr Williams' actions, as well as those of Mr Smith just recorded. I will not repeat them save to note that I am satisfied that lice was found, or at least reasonably suspected, that quarantine was properly imposed, and that any efforts which Mr Montgomery made to encourage the sale of the sheep to buyers, or to suggest to Mr Meehan or Mr Tucker that they take some of them, did not constitute action which was binding upon the plaintiffs, in the terms of having the force of an "order". Rather, I am satisfied that his primary motive was to assist the plaintiffs, and to encourage them to a solution which seemed, in the circumstances, to be the best option. 630 I am not persuaded, accordingly that in relation to these aspects of the case, Mr Montgomery was acting either unlawfully, or with knowledge that he was doing so, or in bad faith, or with intention of causing harm to the plaintiffs. 631 The same answer to that previously mentioned, in relation to Mr Smith, applies concerning the alleged refusal or failure of Mr Montgomery to carry out further inspections of the sheep. As noted, I am satisfied that lice had been found, or reasonably suspected, before the return of the sheep to Glen Innes and again in October or November 2001. Moreover there is the consideration that it is difficult, if not dangerous, to prematurely release a mob of sheep in which the problem has been found, or suspected, without appropriate treatment, because of the difficulty in detecting a light infestation, particularly in short wooled sheep. 632 The February quarantine was, for the reasons previously mentioned, justified, and I do not accept the plaintiffs' assertions that Mr Montgomery only "pretended" to have found lice himself in 1991. I found him to be an honest and credible witness, and no reason was ever identified as to why he would have acted in bad faith, in the various ways suggested. Moreover, I am satisfied that the continual presence or suspicion of lice, and the concerns about straying of the sheep and unauthorised stock movements, fully justified the maintenance of quarantine, and the acceptance of undertakings in lieu, until such time as the sheep had been dipped and cleared. 633 The subsequent orders for destruction, disposal or agistment elsewhere similarly fell into the category of a properly justified response in the light of the findings elsewhere noted concerning the deteriorating conditions of the available pastures and of the sheep themselves. So far as Mr Montgomery is concerned, he acted in relation to these matters on the orders, or with the approval of superiors, and not of his own motion. 634 In the light of the drought and the numbers of sheep brought back to Glen Innes, and the limited carrying capacity of the properties, the obvious and sensible course for the Perretts would have been to send for sale or slaughter the rams and dry sheep, and to treat and sell the remainder, or at least most of them, as soon as that were possible. Had they done so, the losses of which they complained would not have occurred. 635 Additional to the problems mentioned above, another difficulty which arose, was the inadequacy of the "Abbotsford" fencing and the risks posed by straying sheep, not only to motorists, but to neighbours who were carrying sheep on their properties.

636 Mr Montgomery's letters in October 1991, and his subsequent conduct, did not amount to "orders" in any formal sense. What they did amount to were warnings that something had to be done for the security of the properties, and for the welfare of the sheep, if they were to remain on the properties, or to be moved between them.

637 Again bad faith cannot be demonstrated, let alone any personal intention or foresight that his own acts would result in harm to the plaintiffs. 638 Finally, the plaintiffs cannot make out a case in relation to the concluding phase of events between 21 July 1992 and 31 January 1993, since the quarantine orders for "Rosemeadow" and "Abbotsford" were issued upon the instructions of Mr Byrne, and later (on 19 October) of "Rosemeadow" pursuant to the Minister's decision. Each followed upon the suspected unauthorised movements of sheep by Mr Kingsley from "Abbotsford" to "Rosemeadow", and ongoing concerns that more sheep may be moved to the property.

639 Mr Montgomery's agreement thereafter for Mr Tucker to take some of the sheep does not prove that he knew them to have been lice free. On the contrary, I accept that he warned the Narrabri district veterinarian and allowed the movement, which he accepted was irregular, on welfare grounds.

640 Subsequently a muster was arranged of the "Abbotsford" stock on 5 November, which led to that property being released from quarantine. It is not unimportant that at this muster dead lice were seen, which was consistent with there having been an earlier infestation. "Rosemeadow" was released from quarantine soon after, since by the time of the November muster all of the sheep on it had been moved to "Abbotsford" and found free of any lice infestation.

641 Again, in relation to this aspect of the case, Mr Perrett made an unfounded allegation of fact about a matter, of which he could not have had direct knowledge. That related to the allegation that the properties were released from quarantine only because of Mr Curr's intervention. There was no support for that having occurred, and it derived no support whatsoever from the Board or Departmental records that were tendered.

642 Additionally, he made several disparaging allegations concerning Mr Montgomery or Mr Smith, relating, for example, to a threat that footrot would be found, and the somewhat extraordinary and improbable observation, which was attributed to Mr Smith in November 1992, concerning Mr Montgomery's competence. None of these matters rebounds in his favour so far as his credibility is concerned. Accordingly these causes of action are not established. 4. The Montgomery Fence Upgrade and Movement Restriction Causes of Action

643 These causes of action were based upon the assertion that Mr Montgomery "ordered", the "Abbotsford" fences to be upgraded, and repaired, when proper inspection would have revealed that they were in good condition, or alternatively, that there was secure internal fencing, and that he knew that he had no power to impose any such requirement. Additionally, in support of the misfeasance course of action, it was asserted that his actions generally, in relation to restricting the movement of sheep between the properties, were made with the knowledge that it was only upon "Abbotsford" that the plaintiffs' sheep could be dipped, or treated for fly strike, and/or that refusal to allow the stock to be moved between the properties was done with the knowledge or foresight that it would result in harm to the plaintiffs.

644 There is something of a problem in the formulation of the first part of this claim in the way stated, since it was not the case that Mr Montgomery ever issued an "order" for the fencing to be upgraded or repaired. However I consider it appropriate to consider the matter upon the basis that, effectively, it was made clear that the movement of stock onto "Abbotsford" would not be approved until the perimeter fencing was made stock proof.

645 So considered the critical question remains, first, whether Mr Montgomery was properly, that is honestly, entitled to the assessment which he made as to the state of the fencing; secondly, whether he knew that he was acting unlawfully, or without power, in relation to the position which was taken concerning stock movement onto "Abbotsford"; and thirdly, whether he acted in the way which he did, with a deliberate intention of causing harm to the plaintiffs, or at least with foresight of that possibility.

646 In my view the claim fails at each of these barriers. The photographs in Exhibit B, which were taken on 29 October to my mind show that the fences depicted were far from being stock proof. Mr Smith and Mr Montgomery held that view, as did the experts Mr Sackett and Mr Seaman. Mr Shands similarly stated that at the time of his attendance on the occasion of the first dipping, the internal fences were in poor condition and not stock proof. The only contrary view was that expressed by Mr Perrett, and by Mr Meehan, whose objectivity, as I have already observed, seems to have been questionable.

647 Again, Mr Montgomery was entitled, having regard to the findings of lice, which I accept were made, the Lice Policy, and the interests of neighbors to refuse requests for movement of the stock unless and until the "Abbotsford" fences were made stock proof. In conditions where pastures were poor, the incentive for sheep to stray was not inconsiderable, and the potential for infection of sheep on other properties, or of passing mobs was at least identifiable, and certainly not fanciful.

648 I am unable, in the circumstances, to be satisfied that Mr Montgomery, who, as I have observed, impressed me as an honest and credible witness, acted in the way in which he did with the knowledge that the fences were sound, or that the sheep were free of disease; or without proper authority; or with any intention of harming the plaintiffs.

649 No reason was shown as to why he would have done so, and I am satisfied that he, like Mr Smith, was acting in accordance with the proper discharge of his duties in not issuing the relevant movement orders.

650 On the contrary, I find that he tried to assist the plaintiffs, in so far as he gave them a warning, on 5 October 1991, in conjunction with an advice as to the need to reduce the stock numbers in the prevailing conditions, and then made attempts to find buyers. Additionally it was made clear, on a number of occasions, that stock movement orders would be issued once the fences were repaired. As an emergency measure some short-term movements were permitted by him to allow for fly strike treatment. In the meantime, from October 1991 onwards, regular inspections were made to determine whether Mr Perrett was responding to the need to repair the fences.

651 This history, to my mind, is inconsistent with the kind of deliberate dereliction of duty or abuse of power which the plaintiffs attributed to Mr Montgomery. To the contrary of the case which they advanced, the cause of their problems seems to me to lie with their failure to repair the fencing, or to dispose of the stock, which was in excess of that which could be carried on the properties, at the relevant times.

652 It may additionally be noted that certain of the allegations made by Mr Perrett, in the course of his evidence at trial, to the effect that requests were made of Mr Montgomery, but refused by him, for the movement of sheep to properties other than "Abbotsford" for treatment, were neither pleaded, nor raised in his first and principal affidavit. That circumstance points to the improbability of the truth of his evidence at trial, to the effect that he had sought and been refused permission to take the sheep to the properties of Mr Meehan and Mr Newbury, for this purpose. That point is reinforced by the inconsistency of the evidence which he gave in relation to whether or not he had raised with Mr Montgomery or Mr Smith the "unfairness" in allowing Mr Meehan to take his sheep to "Glenn Athol", while refusing him permission to take his sheep there. 5. The Second Dipping Cause of Action Against Mr Montgomery

653 The plaintiffs' claim is predicated on the premise that Mr Montgomery incorrectly mixed the dip to such an extent that it was lethal, and led to the death of many sheep.

654 So far as this claim rests in negligence it fails, since I am not satisfied that any duty of care was owed.

655 To succeed on a count based upon misfeasance in a public office, the plaintiffs would need to show that Mr Montgomery had abused his position in a way involving targeted malice, or had acted knowingly without lawful authority.

656 I am not satisfied that mala fides of that kind has been shown. Any such allegation would involve a charge of the most serious degree against a registered veterinarian, since it would necessarily involve the gravest dereliction of duty, and a deliberate infliction of cruelty to animals, amounting to a criminal offence. I do not understand the plaintiffs' case, in this respect, to be placed so high, but if it is, then I am not persuaded that it has been made good.

657 So far as it was asserted, in the most recent amendment of the statement of claim, that the requirement for dipping was without power, it was a necessary incidence of the Quarantine orders, which I find were properly made, being required for release of the sheep. It was certainly not unlawful. Nor was it a likely, let alone a foreseen consequence of dipping, that sheep would die.

658 However in case the matter should go on appeal, and also because the evidence concerning this aspect of the case is relevant to the plaintiffs' credibility, it is appropriate that I record my findings in relation to it.

659 First, while it may be accepted that some error was made by Mr Montgomery in relation to the calculation of the mixture, two important, although related, questions remain. First, what was the extent of the error? Second, what were the consequences of it?

660 As to the second of these questions, it was the plaintiffs' case that 200 to 350 sheep died immediately after having being dipped, within a short distance from the dip and from the homestead on "Abbotsford", and that other sheep succumbed over the following days, leading to a total death toll of at least 679 sheep and possibly a further 120 lambs. Their evidence in this respect was contradicted by Mr Montgomery, and was not corroborated, save to a limited extent by Mr Taylor, who claims to have been personally affected by the mixture and to have seen a relatively small number of affected sheep.

661 His evidence in this regard is questioned by the circumstance that neither Mr Montgomery, nor either of the plaintiffs, were similarly affected.

662 No attempt was made by the plaintiffs to record the stock losses, or to report them, or to complain of the disastrous misadventure which, on their account, had occurred. Had it taken place in the way described, one might reasonably have expected that a strong complaint would have been made about Mr Montgomery to Ms Harmer or to Mr Shands, or to the president of the Glen Innes Board, especially if the plaintiffs genuinely believed that he had been treating them unfairly in relation to his reported findings of lice, and in relation to his attitude to the fencing deficiencies.

663 Additionally, the claim to organophosphate poisoning was not supported upon the expert evidence which I have earlier summarised, either as to the incidence of poisoning at strengths well above both that conceded by Mr Montgomery, and that alleged by the plaintiffs, or as to the symptoms which might be expected. The fall back which the plaintiffs eventually appear to have embraced, was the possibility mentioned by Mr Sackett (in the report which he provided for the plaintiffs) that associated solvents in the dip might have been a possible cause of the burning and scalding which they claim to have been evident. At best, this is speculation and insufficient to prove that the dip mixture was the cause of any deaths. 664 The annexure to Mr Sackett's report, being a letter from Mr Stevenson of Novartis Animal Health Australasia Limited, also did not support a conclusion that symptoms reported were consistent with exposure to high concentrations of diazinon. However, as he pointed out, they had no data on the reaction that highly elevated concentrations of solvent may have on sheep.

665 Part of the problem with the plaintiffs' case, in this respect, is that it seems to depend upon a misunderstanding as to the way that organophosphate dips operate, and of the process of reinforcing, which, contrary to their impression, required dip to be added without additional water. Another problem they face is that the basis for the calculation of the 17 times excessive concentration was not exposed, and in any event, it was contradicted by Mr Plant's evidence.

666 In my view, the fallacy of the plaintiffs' claim is demonstrated in the evidence of Mr Plant, who I accept to have been an experienced, impartial, and credible witness. That evidence has been earlier summarised, and demonstrates, forcefully in my view, that there was not a fatal over concentration of dip, and no reason to suppose, by reference to industry experience and testing, that deaths were due to it.

667 The answer to the first question has particular relevance for the plaintiffs' credibility. I find it inherently improbable that Mr Montgomery, as a veterinarian, would have continued to dip sheep in circumstances where they were dying in large numbers all around him. It would have been professional suicide, apart from being an act of wanton cruelty for him to have done so. There was no independent evidence of carcasses or of terminally ill sheep lying around in open view for all to see, or of carcasses later being hidden under logs or behind blackberry bushes before Mr Smith's attendance. Surely, if the offence unfolded in the way described, Mr Smith would have been informed and shown the dead or dying sheep.

668 Additionally, this was an aspect of the case where the plaintiffs made an unjustified and somewhat scurrilous allegation to the effect that Mr Montgomery had been affected by whisky, to the point where he had been unsteady on his feet and had his fly undone. Mr Taylor did not support any such allegation, and I do not believe that it did the plaintiffs any credit to have raised it. I have reached a similar conclusion in relation to the suggestion that each of the plaintiffs made, to the effect that Mr Smith had made mention of the Board consulting barristers after the dipping, and of it having received advice to the effect that they were not liable. I am not persuaded that any such comment was made.

669 I am left in the position where I believe the plaintiffs evidence about this event to have been grossly exaggerated. I would accept that there were a relatively small number of deaths, since as Mr Seaman pointed out dipping is always hazardous, particularly for sheep in poor condition when temperatures are low. It is more likely than not that such deaths, as did occur, were due to stress, which is inevitably involved in the dipping process, and to the poor condition of the sheep, which would have compounded that problem. In this regard, it is not insignificant that Mr Tucker considered the sheep to have been in poor condition, and did not appear to consider the difficulties, that some had, as having been particularly exceptional.

670 Otherwise, I am satisfied that Mr Montgomery was, at all relevant times, acting in relation to the dipping, with the statutory authority and powers attaching to the office of Inspector under the Stock Diseases Act and the Rural Lands Protection Act, which included powers to enter lands and to treat stock, and to order an owner to treat infected stock. No allegation was made of bad faith on his part, in relation to the dipping nor, I am satisfied, could there have been any such submission properly made. This aspect of the plaintiffs' cause of action is accordingly not made good. 6. The July 1992 Sheep Shooting Causes of Action

671 These claims were based on allegations that Mr Smith was guilty of trespass to goods and stock, and misfeasance in a public office, in relation to his various entries onto the land of "Abbotsford" in July, and in relation to the shooting of some of the sheep there. It is the case that seven sheep were shot on 1 July and that 120 sheep were shot on 3 July. Mr Montgomery was present on the second occasion, as was Ms Harmer. I am also satisfied that he was present, on 1 July.

672 The position in relation to the second series of shootings is crystal clear. Mr Montgomery was a registered veterinarian and Ms Harmer, was an RSPCA officer. Each was authorised, under section 26A of the Prevention of Cruelty to Animals Act, to destroy sheep which were too weak to survive, or were suffering needlessly from injuries. That authority clearly extended to having someone else, in this case Mr Smith, do so under their direction and control. Section 32 of the Act would apply in such case, to preclude a damages claim.

673 Mr Smith may not have had specific statutory authority to destroy sheep alone, without the approval of a veterinary or RSPCA officer. He was, however, entitled to enter the land of the plaintiffs at any time, and I would not be prepared to find that he was guilty of any tort, if all that he did was to destroy sheep that were seriously injured and suffering, even without an express direction from an authorised officer.

674 The issue effectively posed by the plaintiffs in relation to the shootings was whether the sheep were injured or so weak that they needed to be shot. The plaintiffs assert that they were not in that condition, and Mr Perrett endeavoured to rely on the photographs, which were taken of sheep in the race or lying dead on the ground, to suggest that they were still in sufficient condition to be allowed to live.

675 As appears from my summary of the evidence relating to the periods between May 1992 and July 1992, the condition of the sheep, and of the pastures, was recorded as deteriorating, not only by Mr Smith and Mr Montgomery, but also by Ms Harmer. There was also clear evidence of over stocking, and financial difficulties on the part of the plaintiffs, making it hard, if not impossible, for them to buy in the feed required to carry the stock through the winter. It is also clear that Mr Montgomery and Mr Smith were seeking guidance, and instruction from more senior officers, and that such officers were becoming involved in the decisions which were being made, - circumstances inconsistent with mala fides on the part of either of them.

676 As the evidence in relation to the events in July shows, the concern of the Board and Department at this stage primarily related to the condition and welfare of the sheep, a concern which had led to Ms Harmer being notified and asked to attend the property.

677 There was evidence from Mr Smith, Mr Montgomery, Mr Lynn, Mr Gallagher, and Mr Davidson which was corroborative of the presence of dead, injured, and distressed stock on the property, as well as of the absence of feed. There was also evidence from them concerning the presence of loose dogs, and of sheep that had been tangled up in wire, and attacked by crows and dogs.

678 The shootings on 3 July, it was shown, occurred at a time when not only was Ms Harmer present, authorising and directing the destruction of sheep in consultation with Mr Montgomery, but there was also present Stuart McLelland from the Department of Agriculture. Additionally, there was photographic evidence of the scene, which, in my view, generally supports the description which the defence witnesses gave as to the very poor condition of the sheep. 679 Mr Sackett's report hardly assisted the plaintiffs' case in so far as he asserted, from the photographs, that 50% of the sheep had a condition score of less than 1.5 (on a scale of 1 to 5), and that most of the rest had a score of 1.5, such that they require supplementary feeding or access to good quality pasture. Absent a management plan to at least maintain, if not increase their live weight, he said, this "would be an animal welfare issue".

680 A post-mortem examination of one of the diseased sheep also indicated the presence of worms and depleted kidney fat reserves.

681 That there was a genuine concern in relation to the surviving sheep, and not wanton and unnecessary destruction, was also supported by the fact that upon Ms Harmer's instructions, the survivors were drenched using drench purchased by her. Even in this minor detail, Mr Perrett attributed bad faith to those present, suggesting that his drench had been used, and that his drench gun had been taken. That assertion I find to be untrue, as do I find his suggestion that the sheep were shot merely to assist the Bank.

683 These causes of action, which were pursued against Mr Smith and Mr Montgomery, included claims based in negligence, trespass to goods and to land, and misfeasance in a public office. As to the latter, it is alleged that they knew that they had no power to enter the property and to feed the sheep. It is not however, alleged that they knew the hay was toxic.

684 There is a fundamental problem in the way of the plaintiffs, in that I am satisfied on the evidence, that the decision to buy hay, and its actual purchase, was made by the RSPCA on Ms Harmer's authority. Neither Mr Montgomery or Mr Smith had anything to do with this decision. It is true that Board workers helped roll it out, over various days, but there is no reason to suppose that any of them was acting other than for humane reasons, in response to RSPCA's intervention.

685 I am, in any event, unpersuaded that hay was "toxic". It may not have been of the best quality, which was understandable since the area was in drought, and hay was in short supply. It was, however, supplied from an independent commercial supplier in Glen Innes, and it was not considered by the Board workers who saw it to be of inedible or toxic appearance.

686 No complaint was made about it by the plaintiffs, even though the perfect opportunity to do so was available to Mr Perrett when he consulted Mr Shands for advice as to the feeding of the sheep. I reject Mr Perrett's account of showing him a sample of hay, and I accept Mr Shands' diary as indicating that there was no conversation along the lines attributed to him by Mr Perrett. Another opportunity for complaint, which was not taken up, arose when Ms Harmer asked Mrs Perrett to pay for the hay.

687 No analysis was ever made of the hay, no photograph was taken of it and no evidence was called to show that it could have killed the sheep. While Mr Seaman's affidavit suggested that soya bean hay is of poor feed quality and of insufficient quality to maintain liveweight, and can contain potentially toxic levels of nitrates, that situation, he said, was usually associated with green leaf material which was not present here. Mr Sackett's report would tend to confirm the view that this hay mainly consisted of dried stalk.

688 Accordingly I do not accept the plaintiffs' evidence that it was mouldy or toxic, or that it appeared to have been "sitting out in the elements for four years."

689 I have a doubt about the evidence that was given by Mr Perrett, Mr Newbury and Mr Meehan as to the availability of other feed in a shed. Had such a supply of feed been available, it is at least questionable why the stock were in the poor condition which was observed. Even had there been such feed available, which went unnoticed by Ms Harmer and the others, it would not make good this claim, since I am satisfied that the acquisition and feeding out of the RSPCA hay was done in good faith.

690 I am satisfied, to the contrary of the evidence of the plaintiffs, that the sheep deaths on "Abbotsford" in June and July were entirely due to neglect and inadequate fodder, as well as to the bouts of cold weather which could only have weakened the sheep further, requiring the humane destruction of some, and leading to the unassisted death of others. Of some importance in this respect were the later observations of Mr Montgomery, that the drenched sheep had appeared to have put on condition, after responding to be Milvern drench and to the supplementary fodder, and the laboratory confirmation of worm infestation in the ewe which had been subjected to a post-mortem examination.

691 While something of a question remains in relation to the disappearance of the adult dogs, it was for the plaintiffs to prove that they were either shot or taken by one or other of the defendants, in order to make this claim good. The evidence does not permit such a finding, as the plaintiffs conceded in their closing submissions.

693 Having regard to my specific findings in relation to each of the complaints which were levelled at Messrs Williams, Smith, and Montgomery, I am not persuaded that any relevant wrongdoing was made out. Although in those circumstances it is not necessary for them to have resorted to statutory immunity, it is clear that bad faith having been eliminated, it would provide a defence in relation to those acts which fell within the compass of the legislation by which it was conferred, had the tort of negligence been available.

694 It follows that there must be a verdict for each of the defendants. F. Damages

695 The losses for which the plaintiffs claim damages fall into two categories, which were conveniently identified by the defendants, as constituting specific sheep losses and losses for sheep not accounted for. Those claims, or the quantification of them, however differ between the defendants. 696 The losses in the first category relate to: (a) The losses occasioned as a direct result of the order for removal of the stock from the Moree TSR, and their transport back to Glen Innes - claimed against Mr Williams, the Moree Rural Lands Protection Board and the State.

(b) The losses occasioned as a direct result of the second dipping - claimed against Mr Montgomery, the Glen Innes Board and the State.

(c) The losses occasioned as a result of the shootings - claimed against Mr Smith and Mr Montgomery, as well as against the Glen Innes Board and the State.

(d) The "toxic hay" losses - claimed against Mr Smith and Mr Montgomery, as well as against the Glen Innes Board and the State.

(a) Losses attributable to the imposition of, and continuation of, quarantine - claimed against Mr Smith and Mr Montgomery, and against the Glen Innes Board and the State.

(b) Fly strike/malnutrition losses, attributed to the restriction of sheep movements, due to the claimed inadequacies in the "Abbotsford" fencing - claimed against Mr Montgomery, the Glen Innes Board, and the State.

698 The economic loss claim, as calculated by Mr Browning in his supplementary report of 9 March 2003 was as follows: (a) Expected proceeds of lamb sales; $122,522.42 (b) Cost of replacement of adult sheep after allowance for normal deaths; 414,826.00 (c) Cost of trucking from Moree TSR to Glen Innes; 9,838.00 (d) Cost of trucking sheep between properties for flystrike treatment; 6,480.00 (e) Loss of sheep dogs; 9,500.00 (f) Loss of turnip crop. 2,922.50 $566,088.92

Less recoveries: Net proceeds of sheep and lamb sales; $14733.45 Wool sales 19223.60 $33,957.05 $532,131.87

699 A further claim was initially made, in relation to economic loss, for "the forced sale, replacement loss, and loss of the use" of "Nassau", and "Rosemeadow", in a sum of $63,043, and for expenses in relation to the bank litigation of $122,616.52, as well as for unspecified interest on the bank loans. It is not entirely clear, save for the bank litigation expenses claim (which was expressly abandoned) whether the remaining aspects of this heading of loss are still pursued, since they were not the subject of any specific closing submissions.

700 Each aspect of the claim for damages was placed in issue, commencing with the calculation of the numbers of sheep that were lost on the stock route at Moree, and their initial return to Glen Innes, those that were lost at the time of the second dipping, and those that died as a result of malnutrition and fly strike. The difference between the parties can be seen from the reconciliation tables which each prepared, of the sheep and lamb numbers, taking into account those that were transported to the stock route and those that were lambed there, as well as the claimed losses and disposals at various dates thereafter.

701 The plaintiffs' evidence concerning the sheep losses in their final reconciliation, differs to some extent from the figures which were initially supplied to Mr Browning and which formed the basis for his original assessment. For example, in that reconciliation, the number of sheep deaths due to fly strike and malnutrition appears to have altered.

702 As I have already observed, I disbelieve the evidence which the plaintiffs gave as to the number of sheep that died on the TSR, and as a consequence of the second dipping, even assuming (contrary to the facts as I find them to be) that the sheep were unnecessarily ordered to be taken off the stock route, or were poisoned due to a toxic dip.

703 There is some certainty as to the number of sheep that were sold at various times and transferred to Mr Tucker, since stock movement orders were prepared in relation to them.

704 The only other area in which there is any degree of certainty relates to the number of sheep that were destroyed by the Board officers, but their deaths were due to a humane response and were not the result of any fault that could be attributed to the defendants.

705 The spreadsheets prepared by the defendants are substantially based upon stock movement orders or contemporary records. The plaintiffs did not themselves keep any running records or stock counts, or any precise ongoing tally of deaths. Since I am generally not prepared to accept their evidence as reliable or credible, I would be forced back to the defendants' reconciliation, if it were necessary to assess damages.

706 The next area of contest for an assessment would relate to the values which the plaintiffs and the defendants placed upon the sheep at various times. In this respect they made reference either to the actual sales that were effected in relation to those of the plaintiffs' sheep that were sold, or to estimates that were made upon the basis of their assumed condition, (particularly their weight) and market data. The differences in opinion concerning these aspects are recorded in the experts' reports, but any decision as to the appropriate value would vary according to the time or times at which fault could be demonstrated. This would have an impact on both the losses alleged to have occurred as a direct result of the move from the stock route, and the alleged wrongful restriction of the sheep by reason of continued quarantine. 707 The evidence does show in this respect that rams were purchased for an average price of about $36 per head, and that the ewes were purchased for an average price of only $1.57 per head. They comprised small lots of sheep of mixed ages and bloodlines, and the prices paid would tend to suggest that they were not necessarily of prime quality, despite Mr Perrett's contentions to the contrary. Additionally the evidence shows that there were sales during the period October 1991 to May 1992 of approximately 1900 head of sheep and lambs, from which some guidance as to their value could be ascertained. That fact also indicates that the sheep were at least saleable for slaughter (some immediately, and the ewes with lambs when they had reached a suitable age), although obviously below the prices which the plaintiffs claimed could otherwise have been obtained for them. The gulf between the prices paid, and the values assessed by Mr Moad for replacing ewes "joined and in forward to fat condition" was very considerable (Merino ewes $65, x-bred ewes $74); as were his estimates for the wethers ($63) and rams ($30).

708 Another area of contest concerns the plaintiffs' calculations of a 100% lambing rate for the ewes during at least the first season on the stock route, and some imprecision or uncertainty as to the plaintiffs' plans, as to how long the sheep would remain travelling stock, and as to when and under what conditions, they or their progeny would be shorn and/or sold. In that regard it was the plaintiffs' case in relation to the lambs, that they would be allowed to fatten for sale during the following year. What was intended in relation to the remainder of the sheep remains unclear, there having been no evidence given at the trial to confirm the assumption of Mr Browning that 2500 Merino ewes would be agisted from February 1992, on lucerne pastures, at North Star before their sale in full wool, and that 2500 cross bred ewes would have returned to Glen Innes. 709 The 100% lambing rate, Mr Ivey pointed out, was well in excess of the average lambing rates across NSW for the years ended 31 March 1991 (84.2%) and 30 March 1992 (75.6%), and not a rate ascertainable for travelling stock.

710 The future was obviously very much dependent on the weather, the pastoral conditions on the stock routes and at Glen Innes, economic pressure from the Bank, wool prices, and sale prices through yardings, in the areas where the stock were at any relevant time. Additionally, there would need to be an allowance for the costs of keeping the sheep on the road, and for mortality rates somewhat in excess of the 1.5% rate adopted by the plaintiffs.

711 A degree of speculation would attach in relation to each of these matters, but I am of view that the assessment of Mr Browning was somewhat optimistic, since it seems to have assumed the existence or occurrence of conditions and events that were, at every point, most favourable for the plaintiffs.

712 Apart from the issues which arise in relation to the stock numbers, lambing rates, sale prices and so on, additional significant issues would remain in relation to causation and mitigation, the determination of which would again depend upon the event or events in respect of which liability was found to exist. Inter alia, they would concern matters such as delay on the plaintiffs' part in repairing the fences, if contrary to their position, they were not stock secure; and the insufficiency (or otherwise) of the fodder provided, so far as that may have led the sheep to lose condition.

713 I am generally satisfied that problems do lie in the way of plaintiffs in relation to both causation and mitigation, arising, to a considerable extent, from their financial difficulties, and the drought conditions.

714 In that respect it is clear that, for a significant period from October 1991, the Glen Innes area was affected by drought, and that at least, during the middle months of 1992, the plaintiffs did not provide sufficient fodder for the sheep. There was evidence from Mr Ivey suggesting that the Moree district was also in drought during late 1991 and early 1992, although that is not readily apparent from the rainfall figures.

715 The plaintiffs elected to hold onto most of their sheep, rather than to reduce their losses by sale for slaughter, with the consequence that they lost further value and in many cases, died of malnutrition and/or fly strike. Those last mentioned losses were due to the plaintiffs' neglect.

716 Any election not to take advantage of the opportunity to sell the sheep for slaughter immediately upon their return from the stock route, or subsequently, was a matter for decision by them. If there was any actionable wrong in relation to the events of September 1991, then the sale of the sheep would have reduced the resulting losses, and in the conditions prevailing, it would have been a reasonable response to the problem which the plaintiffs faced.

717 While I would normally endeavour to proceed to an assessment of damages in any case where the plaintiffs have failed on the liability issue, so as to avoid the need for a further hearing in the event of those findings being reversed on appeal, I do not consider it useful or feasible to do so here.

718 The problem lies in the circumstance that any such assessment would depend upon the time at which, or events in respect of which, I was found to be in error. For example, the damages payable, if the defendants were ultimately found to have been responsible for the plaintiffs' losses, commencing with the events at the Moree TSR would, or could, differ significantly from those payable if liability was limited to the events related to the fencing requirements, or to those associated with the second dipping, or to those associated with the imposition of quarantine on one of the properties. Additionally, having regard to the separate claims brought, not all of which extend to the individual defendants, the potential liability of each could differ significantly.

719 The possible permutations and combinations which arise, and the need to consider the extent to which the plaintiffs mitigated their losses, would require a series of separate calculations.

720 Those calculations would also depend upon whether a cause of action was established in relation to some prior event, or relevant series of events, occurring within the various time phases, which I have identified, since liability found for one event would have a carry over effect for later events. To further complicate those calculations, questions do arise at each stage of the proceedings, of the possibility of a break in the chain of causation, as do mitigation issues. This relates, inter alia, to the plaintiffs' impecuniousity (see for example The Liesbosch [1933] AC 449, Trans SPRL v Danubian Trading Co Ltd [1952] 2 QB 297; Australian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1987) 161 CLR 98; Fox v Wood (1981) 148 CLR 438; Burns v MAN Automotive (Australia) Pty Ltd (1986) 161 CLR 653 and Henville v Walker (2001) 206 CLR 459; as well as to whether the resulting problems were due to the plaintiffs' fault, or were causally related to any fault on the part of the defendants.

721 The more appropriate course, if my liability findings are reversed, in whole in part, is for the matter to be returned for assessment, or inquiry, depending upon the basis, or bases, found for liability.

722 Otherwise there will be a verdict and judgment for the defendants. I will hear further argument as to costs. **********

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