Error established
29It is evident that his Honour erred in his understanding of what was decided in Song. There Greg James J was concerned with an appeal in respect of a particular offence under the Regulations. Like the case here in question in relation to Ms Elliott, the appeal raised the proper construction of paragraph (b) of the statutory definition of 'person in charge' and whether the acts relied on brought Dr Song within the definition.
30Contrary to the view which his Honour reached, Greg James J did not construe the words used in paragraph (b) of the definition, 'a person who has the animal in the person's possession or custody, or under the person's care, control or supervision' as meaning a person who has the 'ability to engage in the physical disposition of the animal'.
31His Honour erred in looking to the dictionary definition of the word 'disposition' to give meaning to what was decided in Song. Even in concluding that Greg James J had in mind a particular dictionary meaning of that word, when concluding that a person in charge had to have the ability to engage in the physical disposition of an animal, his Honour overlooked an important aspect of the definition to which he had referred, namely the element of 'control', despite having observed the word was defined to include both 'physical inclination or tendency and the 'power to dispose of a thing; control'. In so approaching what was decided in Song, his Honour fell into obvious error, albeit, to be fair to his Honour, his approach had regard to the parties' debate before him as to the meaning of the word 'disposition'.
32No doubt his Honour was bound by Greg James J's approach to the construction of paragraph (b) of the definition. What was not required to be undertaken, was a further process akin to statutory construction in relation to Greg James J's use of the word 'disposition'. Even if it were, what could not be overlooked was that care must be taken in the use made of the dictionary definition of words, when a statutory phrase is being interpreted. As discussed in Residual Assco Group v Spalvins [2000] HCA 33; (2000) 202 CLR 629:
"[27] ... In construing a statutory provision, we should always keep in mind what Learned Hand J said in Cabell v Markham [148 F 2d 737 (1945) at 739]:
"Of course it is true that the words used, even in their literal sense, are the primary, and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract, or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning."
33A careful reading of Greg James J's observations reveals that this was not something which had been overlooked, consistently with the approach to statutory construction discussed by McHugh J in Marshall v Director-General Department of Transport [2001] HCA 37; (2001) 205 CLR 603, where his Honour said:
"The duty of courts, when construing legislation, is to give effect to the purpose of the legislation. The primary guide to understanding that purpose is the natural and ordinary meaning of the words of the legislation."
34As Greg James J discussed, paragraph (b) of the defined term has two parts, capturing those persons who have 'possession or custody' of the animals in question, as well as those who have the 'care, control or supervision' of those animals. Thus Greg James J's reference at [59] to all categories of persons included in the statutory definition to be:
"... persons who had a general authority or command over the immediate disposition of the animals in question."
35This was an important consideration in Song, because the prosecutor had relied on Dr Song's acts of giving the goats in question a certificate of health and issuing an export certificate in respect of them, as establishing that he had supervision of the goats and thus fell within paragraph (b) of the definition. It was not there the prosecutor's case that the goats were in Dr Song's possession, or under his direct physical control, only that they were under his supervision. Greg James J concluded that the acts relied on, the issuing of two certificates, did not bring Dr Song within paragraph (b) of the definition.
36Thus it was that Greg James J observed at [65] that before a person might be held to be 'in charge', that the person must:
"... have some responsibility or authority of an immediate kind for the physical control of an animal rather than merely having some legal responsibility to undertake a limited function in connection with the animal."
37His Honour overlooked Greg James J's critical observation as to how the construction of paragraph (b) of the definition is to be approached. At [66] Greg James J said that the concept of a person in charge:
"... refers to a person's ability and authority to take positive steps to effect the immediate physical circumstances of the animal so that persons' authority might be employed to ensure care, treatment in a humane manner and the welfare of the animal."
38Greg James J also said that the definition:
"... particularly refers to a physical relationship in which the person is able to exercise some degree of ultimate responsibility or authority over an animal in its physical environment."
39He continued that the concept of supervision did not involve 'passive permitting or detached observation' and that:
"... it is not enough that the person perform since(sic) ancillary legal function in relation to the goats but it is necessary that the person, whether on their own or in combination with others, have that degree of authority and responsibility as would enable the person to engage in the physical disposition of the goats."
40When proper account is taken of this explanation, it is apparent that Greg James J did not construe paragraph (b) of the definition of a 'person in charge' as being limited in the way that Bartlett LCM understood, that is, that it is essential that such a person have the ability to engage in the physical disposition of the animal. This was an observation directed only to the concept of supervision.
41Had Greg James J reached the conclusion which his Honour understood, he would have fallen into obvious error. The word disposition is not used in paragraph (b) of the statutory definition. All of the words which are used must be given their ordinary and natural meaning, which is not confined in the way his Honour viewed them to be. As his Honour himself discussed, confining the wide terms of the statutory definition to those persons having power in relation to the physical disposition of the animal in question, would be to fail to give the words used in the definition their proper meaning and would be to approach the definition inconsistently with the statutory objects specified in s 3, to which Greg James J expressly referred.
42It is by the words possession and custody, care, control and supervision, by which the term is defined. These are ordinary, everyday words, whose meaning is to be approached, as Greg James J discussed in the context of the meaning to be given to the word 'supervision', on the basis that a 'person in charge' will have:
"... the ability, responsibility and authority to take positive steps to affect the animal's immediate physical circumstances; its physical environment; and the employment of that authority to ensure its care, its treatment in a humane manner and its welfare."
43That approach gives proper effect to the objects of the Act specified in s 3 and has regard to the natural and ordinary meaning of the words used in the definition.
44It is in this context that his Honour had to resolve the question of whether the acts or functions on which the prosecutor relied to establish that Ms Elliott was a person in charge, established either that she was in 'possession or custody' of the dogs, or that they were under her 'care, control or supervision', or both. That could not be determined simply by considering whether Ms Elliott had the ability to engage in the physical disposition of the dogs, although that was one relevant consideration.
45Other relevant considerations included whether Ms Elliott had the ability, responsibility and authority to take positive steps to affect the dogs' immediate physical circumstances and their physical environment; whether she had the authority to ensure their care, treatment in a humane manner and their welfare; whether there was a physical relationship in which Ms Elliott was able to exercise some degree of ultimate responsibility or authority over the dogs in their physical environment; and whether on her own, or in combination with others, she had that degree of authority and responsibility as would have enabled her to engage in the physical disposition of the dogs.
46In the result, it must be concluded that his Honour erred in his determination of whether the material facts which he found were such as to bring the case brought against Ms Elliott within the provisions of s 5 and s 8 of the Act, given the proper construction of the term 'person in charge' in s 4. It follows that the appeal must be upheld.
47The usual order as to costs is that they follow the event. Unless the parties wish to be heard on costs, in which event they should approach within 7 days, the Court's order as to costs will be that the first defendant must bear the plaintiff's costs, as agreed or assessed.