Plaintiffs v Defendants

1 The plaintiffs are the owners and/or occupiers of a property at Warrak. On 18 February 2016, RSPCA officers seized 92 horses then grazing on the plaintiffs' property. By a writ filed 23 February 2016, the plaintiffs seek declarations that the authorisation by the delegate of the Minister for the seizure of the horses was invalid and that their seizure by the RSPCA officers was unlawful. The plaintiffs seek an order for the return of all of the horses and an interlocutory injunction seeking to restrain the defendants in the following terms:

The defendants and each of them be restrained pending the determination of the proceeding herein from destroying or otherwise disposing of any of the 104 horses seized by the second defendant on 18 February 2016 pursuant to an authorisation given to the second defendant by the first defendant.

The plaintiffs' application was supported by various affidavits, sworn by the first plaintiff and by her solicitor, Mr Maitland. The defendants opposed the application on the basis of affidavits sworn by Dr Milne, the Chief Veterinary Officer, and by the solicitor for the RSPCA. The Chief Veterinary Officer is employed within the Department of Economic Development, Jobs, Transport and Resources.

2 For the reasons that follow, the application will be dismissed with costs. The conduct in issue on the application related to the exercise of powers under the Prevention of Cruelty to Animals Act 1986 (Vic), to the provisions of which I will refer in due course.

3 From the affidavits, both in support and in opposition to the application, the following facts emerged. On 19 January 2016, RSPCA inspectors appointed under the Act attended the property at Warrak and inspected horses on the property. The inspectors were accompanied by Dr Paul Owens, a consulting veterinarian and equine dentist. Dr Owens prepared a report on the condition of the horses, and their circumstances, on the property.

In my professional opinion, the evidence is overwhelming that there is a complete lack of adequate feed available to these horses. Many horses seen at this property are in grave danger of dying within days from starvation if action is not taken to seize and remove them. ... There is compelling evidence that many horses are left with little or no water throughout the day. ... Management practices are non-existent and this had led to horses breeding indiscriminately. Mares are pregnant with foals at foot unable to find adequate nutrition to sustain pregnancy or maintain their own body condition. Such mares are likely to die due to heavy demands on their metabolism if adequate nutrition is not available. ... In the event of a horse sustaining an injury or having an illness, it would be impossible to handle the horse as it has had no training and minimal human contact. This presents a serious welfare issue. ... There is compelling evidence that no effort has been made to provide even the basic husbandry required to maintain horses in good health. In my professional opinion there has never been farriery work carried out in this herd. ... No adequate worming program has been carried out, leaving young foals and weanlings highly susceptible to parasitic infections and adult horses are also highly susceptible. ... Fencing is inadequate and in places extremely hazardous and horses are at risk of sustaining serious injury from this and other objects that are in yards and sheds. ... Skeletal remains are present in all paddocks around this property. The number of carcases and skeletal remains is deeply alarming and is strong evidence of high death rates at this property. Finding skeletal remains and a decomposing carcass of a foal in different locations within different paddocks is evidence that these animals died without any veterinary intervention or humanely destroyed using a pistol or a shotgun. It proves that in these cases these horses were becoming recumbent in the paddock and then dying as a result of either starvation, dehydration or underlying illness/infection.

The findings of this preliminary report identify a scene of widespread starvation in a large number of horses residing at this property. The gravity of the situation facing the horses on the property cannot be over emphasised. The evidence is compelling that the majority of horses at this property will die of starvation in a matter of days. The situation will be catastrophic as it is impossible to supply appropriate feed on the large scale required. Water supply from the dam is also dwindling and this will accelerate the rate of death in a matter of days.

6 On 20 January 2016, an RSPCA inspector, Ms Jalbert, reported her observations and those of Dr Owens to the Department. She reported that all horses were obviously hungry and that there was a lack of access to water for many horses. Further, there was a 'horse graveyard' in which there were 'approximately 20-30 carcasses in a pile in various stages of decomposition'.

7 On 26 January 2016, RSPCA inspectors armed with a warrant again attended the property accompanied by Dr Owens. Following that inspection, Dr Owens prepared two reports. The first report set out a management plan for the horses at the Warrak property that identified recommendations for destocking the horse population, creating feeding programs, veterinary assessments, isolation of stallions and colts and various other matters. His second report considered the feed supplies that were available for the horses on the property. He concluded that all horses at the property were malnourished, lacking adequate protein and energy levels, deficient in essential vitamins, minerals and trace elements, and are exposed to starvation on a daily basis.

8 On 4 February 2016, Dr Cameron Bell, Acting Chief Veterinary Officer, considered the reports by Dr Owens, the report of Ms Jalbert and photographs taken by inspectors at the property. On the basis of that information, Dr Bell issued a Notice of Intention to Seize Distressed Animals pursuant to s 24E of the Act.

9 This Notice is issued on the letterhead of the Chief Veterinary Officer and provides contact details for written and verbal communication about its content. The Notice identified five points of concern to the Chief Veterinary Officer, which were:

• Insufficient and improper feed provided;
• Insufficient drinking water provided;
• Inadequate supervision of animals at risk of weakness, sickness or recumbency;
• Animals with signs and symptoms of poor health and nutrition progressing to weakness, recumbency and death;
• Sick and injured animals were not provided with appropriate veterinary or other treatment or attention.

The Notice stated the Chief Veterinary Officer's intention to authorise seizure of the horses unless action was taken to remove the risk of likely distress or disablement of them and it detailed the actions he considered necessary to satisfactorily remove the likely distress or disablement of the horses.

10 These actions were, firstly, to destock the property and, secondly, to follow a nine point plan to protect the welfare of horses remaining on the property. It is not necessary to set out the details of this plan in these reasons and it is sufficient to observe that the particular concerns entertained by the Chief Veterinary Officer about the condition of the horses, the circumstances in which they were being kept, and his criticisms of the plaintiffs' husbandry of the horses, were evident from this Notice. The Notice stated that unless the Chief Veterinary Officer was satisfied that action has been or is being taken to remove the likely distress or disablement of the horses on the expiration of 7 days after service of the Notice, he may authorise a specialist inspector to enter the premises and seize the horses and dispose of them.

12 On 15 February 2016, Dr Owens attended the property to assess the condition of the horses and investigate whether the plaintiffs had complied with the Notice. He prepared a further report, as did the RSPCA inspectors who also attended.

13 The first plaintiff prepared a written statement which she handed to the RSPCA inspectors on 15 February 2016. That statement, which is referred to in an affidavit filed on behalf of the second defendant, was tendered as an exhibit. In that statement, the first plaintiff identified that she had taken some steps in response to the Notice. She invited contact with her vet, Dr Brian Clarke, and with suppliers to her property including her hayman and Ararat Farm Supplies, and the RSPCA inspectors made inquiries of these persons.

14 On 16 February 2016, two reports were provided to Dr Milne, the Chief Veterinary Officer, who had been kept informed by Dr Bell of the progress of this inquiry. The first report was prepared by Ms Jalbert and addressed the plaintiffs' compliance with the Notice of Intention to Seize. The first plaintiff had asserted in her affidavit that she made contact with a lawyer, whom she believed to be acting for the RSPCA, and informed him that appropriate action was being taken to comply with the Notice. That lawyer informed the first plaintiff that he was not directly involved in the matter but would pass on the information he had received. It is clear on a careful reading of this report that all of the information provided by the plaintiffs in answer to the Notice had been incorporated into this assessment by Ms Jalbert.

15 Ms Jalbert stated in her report to Dr Milne that the herd had noticeably declined in body condition and overall health since 26 January 2016 and concluded that the plaintiffs had failed to take sufficient and adequate action to remove the likelihood of the horses and ponies becoming distressed or disabled.

16 The second report received by Dr Milne was Dr Owens' further report in which he provided specific information and recommendations in respect of each of the ten issues outlined in the Notice. Dr Owens concluded:

All horses that are residing at this property are continuing to deteriorate in health and body condition. In my opinion the owner has failed to address any of the recommendations made from the last visit. As a result, horses are being exposed to neglect and will continue to do so if urgent action is not taken to address this situation. I am confident that further deaths from starvation and disease will occur at this property in the coming weeks.

17 On the basis of these reports, Dr Milne was not satisfied that the plaintiffs had taken action or that action was being taken to remove the likelihood of the horses becoming distressed or disabled. On 17 February 2016 he authorised Ms Jalbert, a specialist inspector,[1] to seize the animals. The authorisation stated Dr Milne's reasons for not being satisfied that the plaintiffs had reacted appropriately to the Notice.

18 The authorisation stipulated the manner of disposal of the horses, stating:

(a) A veterinary practitioner must assess all animals that are captured to determine whether they are suitable to be removed to an appropriate horse rescue organisation, including an RSPCA shelter, for rehabilitation and rehoming. Animals that are assessed as suitable must be disposed of by being given to an appropriate horse rescue organisation or RSPCA shelter.

(b) Animals which a veterinary practitioner has determined are unsuitable for rehabilitation and rehoming and/or distress, disabled or reasonably suspected to be diseased or infected with disease and animals that are assessed as being unfit for transport must be disposed of by being humanely destroyed and removed by a knackery operator.

19 On 18 February 2016, acting under the authorisation, RSPCA inspectors seized 92 horses at the property and all were assessed by a veterinary practitioner. Of these, one had to be euthanised and another died. The remaining 90 horses are currently being cared for and rehabilitated for the purposes of rehoming in accordance with the ministerial directive in the authorisation. The plaintiffs' application seeks the return of the horses in the apparent possession of the RSPCA.

20 Following seizure of the horses, the plaintiffs' solicitor received a veterinary report from Dr Clarke dated 19 February 2016. The first plaintiff stated that she requested a report from Dr Clarke on 17 February 2016. Dr Clarke opined that there was more than one week's good quality feed stored on the property, there was adequate water, all animals were bright and moved freely, within the previous two weeks the horses had been wormed, and sick/injured animals were attended to by the owner. Dr Clarke stated that several stallions ran on the property with their own groups of mares keeping their own territory, which was normal behaviour. In his opinion, the majority of the horses were in good or adequate condition and well fed in the circumstances. It follows that this report was not available to be considered by the Chief Veterinary Officer when he authorised seizure of the horses. Further, there is a clear conflict of opinion between Dr Clarke and Dr Owens.

21 On the hearing of the application, the plaintiffs produced a number of photographs that purported to demonstrate the physical condition of the horses depicted. Although these photographs can be contrasted with the photographs put in evidence by the defendants, Dr Owens did not suggest that all horses on the property were in the same or a similar condition. Other photographs, that were of no practical assistance in resolving the issues before the court, depicted water containers, food supplies and chemicals.

22 It was apparent from the affidavits that there was significant personal conflict between the first plaintiff and RSPCA inspectors, and that the police had been required to attend at the property.

23 On 23 February 2016, both immediately prior to and following the issue of the writ, the defendants refused the plaintiffs' request that they undertake not to destroy or otherwise dispose of the horses pending further order of the court.

24 I now turn to the relevant statutory provisions. It is evident from the purposes of the Act that Parliament intended that the statutory scheme would prevent cruelty to animals rather than merely respond to cruelty to animals. The provisions of s 24E(1) refer to an animal that 'is in such a condition, or, in such circumstances, that the animal is likely to become distressed or disabled'.

25 The statutory scheme deals with a variety of circumstances. Division 2 creates powers to deal with animals in emergencies. Division 3, which is the relevant part of the Act for present purposes, deals with search for and seizure of animals, warrants, and authorisations. The statutory scheme provides that the Minister or his delegate must first form a belief on reasonable grounds about an animal's circumstances. Having formed that belief, the Minister may issue and serve a Notice of Intention to authorise seizure of the animal. The Act then requires a period of at least 7 days after service of the Notice for the Minister to assess whether he or she is satisfied that action has been or is being taken in respect of the animal. Divisions 4 and 5 specify powers of search and Division 6 specifies duties and powers in respect of seized animals. Section 24Y, set out below, is relevant in present circumstances because the Minister authorised the manner of disposal of the animal under Part 2A of the Act when issuing the authorisation.

1 Purpose

The purpose of this Act is to -

(a) prevent cruelty to animals; and

(b) to encourage the considerate treatment of animals; and

(c) to improve the level of community awareness about the prevention of cruelty to animals.

24F Seizure of distressed etc. animals after service of notice of intent to seize

(1) If, on the expiration of 7 days after the service of a notice under section 24E, the Minister is not satisfied that action has been or is being taken to remove the likelihood of the animal becoming distressed or disabled, the Minister may authorise a specialist inspector, with any assistance that is necessary -

(a) enter the premises at which the animal is kept (other than any part of the premises that is a person's dwelling) and seize the animal; and

(b) to dispose of the animal in the manner determined by the Minister, or otherwise in accordance with Division 6.

(2) A specialist inspector who seizes an animal under subsection (1) may -

(a) retain possession of the animal, either at the premises where the animal is seized or elsewhere, until the animal is disposed of; and

(b) feed, water and otherwise care for the animal if the animal remains on the premises and for this purpose -

(i) may use any equipment on the premises; and

(ii) obtain any necessary assistance from another person.

24Y Methods of disposal of animals

(1) If an animal is authorised to be disposed of under this Part, the animal may be disposed of -

(a) if a court has ordered the manner of disposal of the animal, in that manner; or

(b) if the Minister has authorised the manner of disposal of the animal under this Part, in that manner;

(c) in any case to which paragraph (a) or (b) does not apply -

(i) by being sold; or

(ii) by being destroyed; or

(iii) by being given to a domestic animal business operating from a premises which is registered for the purposes of that business under the Domestic Animals Act 1994.

(2) Ownership in any animal given to a domestic animal business under subsection (1)(c) passes to that business when the business takes possession of the animal.

27 I note several features of the legislative scheme. Achieving the broad purpose of preventing cruelty and encouraging the considerate treatment of animals, the Act bifurcates relevant functions between the Minister (or his delegate) and RSPCA inspectors. The Minister has the power to serve a Notice of Intent to Seize, the power to authorise a specialist inspector to seize the animals, and the power to specify how the animals should be disposed of. Once the inspector, acting pursuant to an authorisation, seizes the animals, the Minister no longer has further control over the animals. The RSPCA specialist inspector controls the act of seizure and the manner in which the animals are disposed of, albeit that the Act and the authorisation regulated such activity.

28 The plaintiffs' articulated their claims in an amended statement of claim. The plaintiffs reformulated their claims following service of the writ and provided an amended pleading to the other parties at the commencement of the hearing. In the proceeding, the plaintiff's claim the following relief:

(a) A declaration that the authorisation by the delegate of the Minister for the seizure of the animals seized on 18 February 2016 was invalid;

(b) A declaration that the seizure of the animals seized on 18 February 2016 was unlawful;

(c) An injunction, both interlocutory and perpetual, alternatively damages.

29 In support of that claim, the plaintiffs contended that the horses were not, and were not likely to become, distressed or disabled. Section 24E clearly contemplates the recipient of the Notice having the opportunity to satisfy the Minister that the likelihood of animals becoming distressed or disabled does not exist. Accordingly, the rules of procedural fairness bound the Minister in the circumstances to give the recipient of the Notice an opportunity to rebut the Minister's belief that animals were, or were likely to become, distressed or disabled. However, the Minister did not serve details of the facts giving rise to his belief, in particular the report of Dr Owens. In these circumstances, the Minister failed to accord the plaintiffs any opportunity to rebut the Minister's original belief, or any opportunity to put forward their own veterinary assessment and other material.

30 Accordingly, the plaintiffs contended that the seizure of the horses was unlawful because the horses were not in a distressed condition and the delegate of the Minister knew, or acting reasonably ought to have known, that there was no basis upon which it could be contended that all of the horses to be seized were in a distressed condition or likely to become distressed. Thus, the plaintiffs contended the Minister did not make the decision to seize in accordance with the requirements of the Act and was in breach of the rules of procedural fairness.

31 The plaintiffs also alleged that the Minister made the decision to seize for an improper purpose. The pleading does not identify that improper purpose. It would seem that the plaintiffs rely on a conversation on 18 February 2016 between a senior public servant within the Department and the plaintiffs' solicitor in which that public servant is said to have described the action taken by the Department as 'a knee jerk reaction to the Magistrates' Court proceeding commenced by Ms Weisheit'. The plaintiffs did not develop this allegation in argument before me and I say nothing more about it.

32 What is notable about the amended statement of claim is that it does not disclose any cause of action brought by the plaintiffs against the second defendant, the RSPCA. The plaintiffs plead that the seizure of the horses by the officers of the RSPCA was an action undertaken by them pursuant to the authorisation of the Minister's delegate. There are no allegations that the RSPCA did not regard, or ought not to have regarded, the authorisation as a valid exercise of the statutory power.

33 When confronted, in argument, with this analysis of their pleading, the plaintiffs submitted that the RSPCA was the 'true applicant' for each of the Notice and the authorisation, although that allegation is not found in the amended pleading. Assuming that to be so, the plaintiffs' submissions did not explain how the second defendant's position as the 'true applicant' affected the obligation of the Minister to afford procedural fairness in exercising powers under the Act. The plaintiffs' allegations that the seizure of the horses was unlawful is founded in the circumstances of the Minister's conduct, not that of the second defendant.

34 The plaintiffs contended that the second defendant's actions in taking possession of the horses depended upon the validity of its statutory authorisation to do so, but the plaintiffs make no allegation, and their affidavits disclose no relevant material facts, that implicate the second defendant in the alleged improper purpose or the failure to comply with the requirements of the Act or the failure to provide procedural fairness. The plaintiffs' allegations did not grapple with the bifurcation of function by the statutory scheme between the Minister and an authorised inspector. On the present allegations, the only conclusion that is open is that the specialist inspector exercised statutory powers based on an authorisation under the statute that was apparently valid on its face, following a statutory process that had not been challenged by the plaintiffs at that time.

35 The nature of the authority and powers given to a specialist inspector in these circumstances are significant, as the inspector not only has powers to seize animals but also to dispose of them. Considering these particular provisions of the Act and the statutory scheme as a whole to ascertain the context and purpose of the inspector's duty upon receiving an authorisation, I am satisfied, at least for the purposes of this application,[2] that the text of the statute permits a specialist inspector to lawfully exercise the powers and responsibilities that are conferred by the Act on the Minister's authorisation. So much is clear from the opening part of s 24Y(1).

36 The High Court in Australian Broadcasting Corporation v O'Neill[3] identified the applicable principles on this application.

(a) The plaintiff must demonstrate a prima facie case. This requirement is to be understood as whether there is a serious question to be tried as to the plaintiff's entitlement to relief, not whether it is more probable than not that the plaintiff will succeed at trial. The sense in which the test is understood is that the plaintiff must prove, prima facie, a sufficient likelihood of success to justify, in the circumstances, the preservation of the status quo pending trial. In context, it must show that it has a putative legal or equitable right in respect of which final relief is sought which will justify the restraint sought. The requisite strength of the probability of ultimate success depends on the nature of the rights asserted and the practical consequences likely to flow from the interlocutory order sought.

(b) The injury which the plaintiff is likely to suffer must be one for which damages will not provide an adequate remedy.

(c) The balance of convenience must favour the granting of an injunction. The balance of convenience requires a consideration of the relevant matters favouring or militating against the granting of an injunction and will necessarily involve a consideration of the strength of the plaintiff's claim assuming that a serious issue has been identified. In Victoria, the decision of the Court of Appeal in Bradto Pty Ltd v Victoria[4] further clarified this consideration. The court must, in determining whether to grant an interlocutory injunction, "take whichever course appears to carry the lower risk of injustice if it should turn out to have been wrong, in the sense of granting an injunction to a party who fails to establish his right at the trial, or in failing to grant an injunction to a party who succeeds at trial".[5]

(d) Other discretionary considerations may militate against the grant of the injunction.

37 I am satisfied that the plaintiffs have not alleged a claim against the second defendant that has any real chance of success. The plaintiffs have not attempted to demonstrate an entitlement against the second defendant to a declaration that its seizure of the horses on 18 February 2016 was unlawful or for an order for the return of the seized horses.

38 Whether the plaintiffs demonstrate a prima facie case against the first defendant is a more complex question because it involves careful consideration of the statutory scheme. It is not practicable on an application of this sort to thoroughly explore that question in full detail.

39 The court's approach on this question is well established. In Kioa v West,[6] Mason J said:

Where the decision in question is one for which provision is made by statute, the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction of the statute. In Mobil Oil Australia Pty. Ltd. v. Federal Commissioner of Taxation, Kitto J. pointed out that the obligation to give a fair opportunity to parties in controversy to correct or contradict statements prejudicial to their view depends on "the particular statutory framework". What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject-matter, and the rules under which the decision-maker is acting: Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group; National Companies and Securities Commission v. News Corporation Ltd..

In this respect the expression "procedural fairness" more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e., in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations.[7]

40 For the purpose of assessing the nature of the prima facie case alleged, I am satisfied that the text of s 24E, considered in the context of the whole of the Act and having regard to its purpose, does not admit of an entitlement in the proposed recipient of the Notice to be heard before the Minister forms the belief contemplated by the section. That is because it is the function of the Notice, which follows upon formation of such belief, to inform the recipient of the Notice about the nature of the Minister's concerns and the basis for them. The statute allows a period of not less than 7 days for the Minister to assess whether action has been or is being taken in response to the Notice. That process plainly permits the recipient an opportunity to be heard before seizure is authorised. Although it is unnecessary to express the concluded opinion at this stage, it would be open to a trial court to conclude that the recipient of the Notice had a right to be heard as to whether a seizure should be authorised under this statutory scheme.

41 Assuming that to be so for present purposes, the plaintiffs contended that they were not accorded a proper opportunity to rebut the Minister's original belief or put forward evidence to persuade the Minister that action is being taken to remove the likelihood of the horses becoming distressed or disabled. This is a question of fact and, as such, a matter for trial, or, possibly, an application for summary dismissal. For my part, if the evidence remained unchanged from its present state, I would not be satisfied that the plaintiffs were denied the opportunity as they allege.

42 For these reasons, I should not be taken to have concluded that there might not be a serious question to be tried as to whether the plaintiffs were accorded procedural fairness, particularly in relation to all of the 92 seized horses. It may also be arguable that the information that was before the Chief Veterinary Officer may not have demonstrated reasonable grounds for the requisite belief in relation to all of the seized horses.

43 That said, I was not persuaded that the plaintiffs demonstrated a prima facie case in the sense that their claim to have been denied procedural fairness has a sufficient likelihood of success to justify the preservation of the status quo, which is the return of the horses to them pending trial. This is a different question to whether the plaintiff's claim or part of it has no real prospect of success. For present purposes, prospects of success are being evaluated against the desirability of preserving the status quo prior to the seizure of the horses.

44 The plaintiffs having failed to demonstrate a prima facie case in the relevant sense against either defendant, injunctive relief will be refused. Although this conclusion is sufficient to dispose of the application, I will express my views in respect of the remaining issues.

45 The injury which the plaintiffs are likely to suffer on refusal of an interlocutory injunction is one for which damages will provide an adequate remedy. The affidavit evidence does not disclose any special, distinctive, or individual feature of any of the horses. Horses are chattels that have a market value, capable of ready assessment. There were suggestions in the material that the plaintiffs had sold some horses through online advertising.

46 Further, the veterinary evidence demonstrated that indiscriminate breeding within the herds was evident. The veterinary assessment was that the horses were running as an entire herd in a semi-wild state. From the bar table, the plaintiffs' counsel asserted that the horses had family groupings that preserved 'bloodlines', which were of particular importance to the plaintiffs. I could not follow this submission, particularly in the absence of foundational evidence. The submission contradicted the veterinary evidence put on by the defendants and I am not persuaded that these horses are anything other than farm stock that, if lost to the plaintiffs in compensable circumstances, can be adequately remedied by an award of damages.

47 Further, I am persuaded when balancing the considerations that favour or militate against an injunction, particularly given the view I take of the strength of the plaintiffs' claim, that refusing to grant an interlocutory injunction is the course that appears to carry the lower risk of injustice if it should turn out to have been wrong.

48 Apart from considering the strength of the plaintiffs' claim, other relevant considerations include the fact that the plaintiffs have offered no undertaking as to damages. Further, there is no evidence that the balance of convenience favours the return of the horses pending the determination of the proceeding. There is no evidence to suggest that the conditions at the plaintiffs' property have improved or that the plaintiffs are in a position to, and will, immediately adopt strategies to improve the circumstances for these horses. There is no evidence of any plan capable of addressing the serious and legitimate concerns raised by the evidence of the veterinarians. In particular, the involvement of the plaintiffs' veterinarian, Mr Clarke, appears too limited to inspire confidence that the horses would not be exposed to becoming distressed or disabled if returned to the plaintiffs. I am unable to conclude that the risk of the horses becoming distressed or disabled if returned to the plaintiffs has been ameliorated to any extent.

49 Necessarily, any order for the return of the horses would need to be conditional, in order to address the fundamental purposes of the Act, which would raise issues about compliance with those conditions. Two observations are apposite. First, the plaintiffs' have not proposed any conditions that they would be prepared to accept and they submitted that the future circumstances of the horses could be monitored by regular inspection by the second defendant. For the reasons already stated the plaintiffs' failure to specify appropriate conditions with which they would comply and which could readily be objectively evaluated favours refusal of the relief sought when determining the balance of convenience. Secondly, the second defendant is a non-government, community based charity, a not for profit organisation and the plaintiffs' submissions that the second defendant could continue to supervise their activities is not acceptable. The probable scenario is that any issues that arose about compliance with conditions would return to the court as contested applications. The prospect of ongoing supervision of any conditional injunctive order is a further reason why it is inappropriate for the court to grant relief.

[1] See s 18A Prevention of Cruelty to Animals Act 1986.

[2] I do not wish to be taken to be expressing a concluded view about the proper interpretation and construction of the statutory scheme in operation in the circumstances on the basis of the material presently available to the court and the submissions that were made upon that material.

[3] [2006] HCA 46; (2006) 227 CLR 57 (Gleeson CJ and Crennan J) 68 [19], 81-87 [65]-[83] (Gummow and Hayne JJ). See also Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618 and Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, 216-218 [8]-[13].

[4] [2006] VSCA 89; (2006) 15 VR 65.

[5] Bradto Pty Ltd v Victoria [2006] VSCA 89; (2006) 15 VR 65; Tymbook Pty Ltd v Victoria [2006] VSCA 89; (2006) 15 VR 65 [35]. See also Magna Alloys and Research Pty Ltd v Coffey [1981] VicRp 3; [1981] VR 23.

[6] [1985] HCA 81; (1985) 159 CLR 550.

[7] Ibid, 584 - 585 (citations omitted).