Stockwell v State of Victoria [2001] VSC 497

2. A proceeding instituted by writ, in which the plaintiff, a former farmer, claims damages for nuisance, negligence and breach of statutory duty from the State of Victoria, for losses suffered as a result of marauding dogs killing his stock.

6. The plaintiff, Ronald J. Stockwell ("the plaintiff"), is aged 58 years. He farmed a property some 18 kilometres south of Corryong, in north-east Victoria, and also carried on a business of plant hire and cutting and baling of hay. He is now unemployed but prepared to do farming and any labouring job. He is experienced in driving trucks and heavy plant, such as dozers and balers.

9. The defendant, the State of Victoria ("the State"), is sued as representing the Crown in the right of the State of Victoria pursuant to the Crown Proceedings Act 1958.

13. In 1945, when the plaintiff was aged two, he moved with his parents and elder brother to a farm situated at Thougla, some 18 kilometres south of Corryong, in north-east Victoria. The farm comprised some 681 acres, some of which were cleared and the balance bushland. The family cleared some of the land and developed the farm as a grazing property. His father ran some sheep and cattle, including calves, on the property.

16. The plaintiff left school at 14, remained on the farm for about four years doing a variety of jobs, and at 18, went to Corryong. Over the following years, he conducted carting and heavy plant businesses. In 1971, his father died, his widow remained on the property and the eldest child, Harold, was given the farm subject to the widow's life interest. The mother died in 1975. Harold died in 1979, leaving the property in equal shares to the plaintiff and his two sisters. The plaintiff purchased his sisters' interests and on 23 December 1981, became the sole owner of the property.

19. In the past, the property had been stocked with some sheep. The number and where they were located was the subject of dispute. On occasions in the 1950s, during 1978 and mid 1981, wild dogs attacked the sheep on the property. The attack in mid 1981 resulted in the deaths of some 20 sheep. This was before the plaintiff became sole owner.

22. The farm comprised four separate parcels of land. One of the parcels was 579 acres in area, rose from the road at its northern boundary in a southerly direction and abutted Crown land on its southern boundary. The sheep attacks occurred on this parcel of land.

25. When the plaintiff took over the property, he added further sheep and in the winter of 1982, a dog attack occurred, resulting in 20 sheep being killed and some 40 being badly injured.

28. On 21 June 1983, an area comprising 1300 hectares, 200 metres south of the southern boundary of the 579 acres, was proclaimed the Burbibyong Reference Area (the "Reference Area") by the Governor-in-Council, pursuant to the Reference Areas Act 1978. A "reference area" is an area of public land preserved in its natural state because it contains one or more land types that are relatively undisturbed. The purpose of the area is to provide a reference for comparative studies of other similar land types that have been developed and used. Hence, the effects of land use can be considered in comparison with a reference area. Members of the public are prohibited from entering the area and the area is to be left in its pristine state, undisturbed by man.

31. The Burbibyong creek ran through the western side of the plaintiff's land and the western portion of the Reference Area. The 200 metres between the northern boundary of the Reference Area and the southern boundary of the plaintiff's land was a buffer zone, which, like the area, was bushland.

34. From the date of the proclamation until July 1990, the plaintiff's property was subject to attacks by wild dogs each year, up to three to four attacks per year. The number of stock lost each year varied but in the worst year, it was alleged that 450 sheep were lost. The plaintiff was not the only farmer in the area who suffered losses from attacks by wild dogs. The plaintiff, together with other farmers, complained. In January 1984, the Department of Conservation, Survey and Lands provided him with materials to build an electrified fence on the northern boundary of the buffer zone of the Reference Area, which abutted the southern boundary of his property. Over the next two years, he erected approximately 1,365 metres of electrified fence along the boundary, which was approximately 1,820 metres in length. The fence was useless, as the dogs could pass around it onto his property. Despite the presence of the fence, the attacks continued and the losses occurred. The point was reached when he was informed by a Veterinary Officer, employed by the Department of Agriculture, in July 1990, that he could be prosecuted for cruelty for keeping his sheep on the farm near an area where they were subject to attacks, and the plaintiff accepted that he could not continue to run sheep. He made a decision in the latter part of 1990 to cease running sheep, and gradually removed and sold his sheep in the following 12 months.

37. As at 1 July 1990, the plaintiff was heavily in debt to banks and finance companies and in 1993, he had to sell his furniture and personal belongings and his plant and equipment. In September 1996, he was forced to sell his farm property.

40. The plaintiff contends that the lost farming and contracting businesses and farm properties, were due to the dog attacks on his sheep, and he claims, from the State of Victoria, compensation which, according to particulars of damage, totals $2,449,764. He also claims compensation for personal injuries in the nature of anxiety and depression.

43. The gravamen of the plaintiff's complaint is that the establishment of the Reference Area on his southern boundary provided a safe haven for wild dogs, which were able to move across the boundary into his property, kill the sheep and return to the Reference Area. For a while, the plaintiff employed self-help by setting baits in the 200 metre buffer zone between his farmland and the Reference Area, but he was warned that he could be prosecuted and he desisted thereafter from laying baits. The plaintiff's case is that the State of Victoria, through its employees, was in control of the Reference Area, that it permitted a nuisance which caused him damage, or was guilty of negligence, and is therefore liable.

47. The plaintiff claims damages from the State based upon three separate causes of action, in tort. The State is sued as the Crown in the right of the State of Victoria.

50. The common law rule was that the Crown was not liable for the commission of a tort by its servants or agents. To this rule, there was one exception which concerned the taking of property by the Crown - see Crown Proceedings by Dr Glanville Williams at p.16. However, a person who was employed or engaged as an agent, by the Crown, could be sued personally for a tort. In 1955, in this State, the Crown Proceedings Act was passed, which enabled a plaintiff, the victim of a tort, to sue the Crown by joining the State of Victoria as a defendant.

53. But the Crown's liability is truly vicarious. The Crown is not liable in tort except where it is vicariously liable for the tortious acts or omissions of its servant, agent or independent contractor, acting in the course and scope of the employment or engagement.

56. This is made clear by the provisions of s.23(1)(b) of the Act, which provides -

(b) The Crown shall be liable for the torts of any servant or agent of the Crown or independent contractor employed by the Crown as nearly as possible in the same manner as a subject is liable for the torts of his servant or agent or of an independent contractor employed by him."

62. I also refer to the decisions in Hall v Whatmore [1961] VicRp 35; (1961) VR 225, Clayton v State of Victoria [1968] VicRp 73; (1968) VR 562, and Richards v State of Victoria (1969) VR 136.

65. It follows that the Crown is only liable where the tort is actually committed by an employee, agent or independent contractor, and then, only if acting in the course and scope of the employment.

68. The plaintiff must plead facts which establish that an employee, agent or independent contractor of the Crown, acting in the course and scope of the employment or engagement, was liable to the plaintiff. In practical terms, this means proof of a cause of action against the employee, agent or independent contractor, and that the Crown is vicariously liable for the tort committed by the employee, agent or independent contractor. In my opinion, it is unnecessary to identify the employee, agent or independent contractor by name, but, nevertheless, it would be necessary to adduce evidence which would enable the Court to be satisfied of the existence of such a person or body, and that he or it was acting in the course and scope of the employment or engagement at the relevant time. Of course, the best evidence is the identification of the individual or body by name.

71. Establishing vicarious liability for the wrongful acts or omissions of an independent contractor is somewhat confined - see Fleming, The Law of Torts, 9th ed., at p.433 et seq. There is no question of an independent contractor being liable in the present case.

74. If the plaintiff fails to identify such a person by name, then the plaintiff assumes a heavy burden of persuading the Court that some unidentified employee, agent or independent contractor was responsible for the damage. Each case will depend upon its own circumstances. There may be sufficient evidence to enable the Court to consider the acts or omissions of the unidentified person. But if the Court is left in the position where it is not able to identify such a person by name or office, then the plaintiff may fail because he cannot prove the liability of a Crown employee, agent or independent contractor.

77. The question of the liability of the unknown person was discussed by the Supreme Court of Canada in Alexander and Ors v The Queen (1960) 23 DLR (2d) 369 at 375. Ritchie J, speaking for the Court, said -

"Lastly, the appellants base their claim on the ground that the Crown was responsible for the conduct of the unidentified person who moved the elevator from the second floor without shutting the doors. It was argued that the rule exemplified by the phrase 'res ipsa loquitur' applied to this case on the ground that the elevator was in the control of officers and servants of the Crown and that the accident would not normally have happened if proper care had been taken. It is true that this somewhat overworked phrase has been held to apply against servants of the Crown ..., but, at least in respect of actions brought under (the relevant legislation), the circumstances must be such as to raise a presumption of negligence against an officer or servant of the Crown 'acting within the scope of his duties or employment' before the burden of proof can be shifted to the Crown by invoking this rule. Here there is no evidence that the unknown person was an officer or servant of the Crown much less that he was acting within the scope of his duties or employment." (Emphasis added).

81. The learned judge went on to hold that there was no evidence to show that the officer or servant who left the elevator as it was, was in fact an officer or servant of the Crown, and the plaintiff failed.

84. The point was also considered by the same Court in the later case of The Queen v Levy Brothers Company Limited (1961) SCR 189.

87. In that case, the Court upheld the finding of the trial judge that it was open to infer that the tortious act had been committed by one or more of the Crown employees, who had access to the area at the relevant time. Whether or not the facts enable the Court to reach the necessary conclusions, will depend on the particular circumstances.

90. The original statement of claim in the present proceeding was technically defective, in that it was asserted that the State was liable without any pleading alleging that its employees, agents or independent contractors were liable. As a result, the State brought an application to strike out the statement of claim on the day before trial, and I granted leave to the plaintiff to amend his statement of claim to properly allege that the acts or omissions were those of an employee, agent or independent contractor. The result was that the statement of claim was amended, alleging that "the defendant, its servants or agents" did certain things, and particulars were given referring to a schedule. The schedule contained some three pages of names, without in any way identifying which particular named person was liable to the plaintiff. The matter was stood down to enable the plaintiff to identify, either by name or office, a particular Crown employee or agent. The result was the reduction of the number of names to some 34 names.

93. Counsel for the State did not raise any objection and accordingly, the trial proceeded on the pleadings as they then stood.

96. In my opinion, it is necessary for the plaintiff in his pleading to identify by name or office, or other circumstances, an employee, agent or independent contractor who was responsible for the tortious conduct. First, because that is the matter that has to be proven; secondly, to enable the defendant to know the case it has to meet, and, in particular, to assist it in preparing its defence to the case; and thirdly, and just as importantly, to focus the minds of the plaintiff and his advisers as to the matters that have to be proven in the case.

99. With the benefit of hindsight, the Court should have required the plaintiff's advisers to be more precise in identifying the particular employees and agents. The result has been much time at trial being spent by plaintiff's counsel attempting to identify who is at fault. More time in preparation and discovery of relevant documents concerning the issue, would have reduced the length of this trial.

103. Before stating the facts, it is necessary to make some observations about the credibility of the plaintiff. The main witness in the plaintiff's case was the plaintiff himself. He was educated to the age of 14. His reading and writing is at a standard which is consistent with him leaving school at 14 and working in labouring and farming jobs ever since. Nevertheless, he has a non-verbal IQ of 111, which is above average, although his verbal IQ was 80, at the lower end of the below average range. The discrepancy is due to his lack of education. He was cross-examined at some length by Mr Galbally QC for the State. Whilst one must make allowances for his lack of education and his memory, which he employed to span some 20-odd years, he was an unreliable witness. A lot of his evidence was found to be factually incorrect and from time to time, he changed his evidence. In addition, he adopted the stance of saying that he could not remember that something had happened when the contemporaneous documents produced clearly showed that it did, and despite being given the opportunity, was not prepared to accept the documentation. In fairness to him, on some occasions, he did accept the documentation which showed that his evidence was incorrect. I am satisfied that on occasions, he told deliberate untruths to the Court.

106. In examination-in-chief, the plaintiff asserted that after Dr Farquhar inspected his property in July 1990, criticised the condition of his sheep and warned him that he may be prosecuted for cruelty to animals if he left the sheep where they could be attacked by dogs, he sold all his sheep within two weeks. His amended statement of claim asserted the same version. In answers to interrogatories, he also asserted that as a fact. In the course of cross-examination, some doubt was raised as to this assertion and in re-examination, he gave a completely different version. This version revealed that he sold a number of sheep in the following six months, that he agisted a substantial quantity of sheep at a fellow farmer's property, and that he sold a substantial number of sheep in March 1991. He then asserted that by March 1991, he had got rid of all his sheep. This also proved to be incorrect. His tax returns revealed that he continued to keep sheep for some years thereafter. Whilst making allowances for his memory and lack of education, I do not accept that his assertion that he had disposed of all of his sheep by the end of July 1990 was due to memory lapse. His case was that as a result of Dr Farquhar's criticisms and threat of prosecution, he was obliged to dispose of his sheep and that is why he suffered all his losses. In my view, this was a deliberate untruth.

109. His evidence, that after the sale of his chattels, plant and equipment in mid 1993, he paid his creditors and the bank, was also untrue. In fact, he did not pay any money to the bank. He used approximately $35,000 to assist with the purchase of the Gibson's property in the joint names of his wife and himself. I am satisfied that this was also a deliberate untruth. His evidence that he was not a trustee of the Burbibyong Trust and had nothing to do with it was also incorrect.

112. He and his wife told the Commonwealth Bank, in a letter, that the Gibson's property was not owned by them. The letter went on to state "or have anything to do with it". This was plainly untrue and accepted by the plaintiff and his wife, in evidence, as being untrue. Other matters that raised doubts about his credibility concerned a stock kill report that he completed in 1982, in which he asserted that no sheep had been on the property for ten years. He had earlier given evidence that sheep had been on the property for ten years. It is difficult to know what the true position was prior to 1982, save that the evidence suggests that very few sheep were on the property prior to 1982. His evidence about resigning from the office of trustee was evasive and uncertain. I do not accept the evidence that he resigned as a trustee because a doctor had told him to avoid all stress. His position as trustee did not involve him in any work in relation to the trust at all.

115. He obtained a grant of $42,000 from the Rural Finance Commission after the sale of the farm in 1996 on the basis that he was no longer in farming and required the money to start afresh. He gave the money to the Burbibyong Trust to assist its farming business on part of the property. In so obtaining such money, he was misleading the Rural Finance Commission, in that he and his wife were trustees of the Trust. He did not use the money to assist in establishing himself outside farming.

118. Another matter that reflected upon the plaintiff's credibility was the lack of records concerning his stock trading, numbers of stock on the property at any one time, wool trading, stock killed and his acquisitions of heavy equipment. The plaintiff gave evidence of these matters without referring to any records, and based upon his memory spanning some 25 years. From time to time, the Court raised the question of records being produced to establish the particular fact. During evidence-in-chief, I remarked on a number of occasions that the matters must have been covered by records, but despite queries being raised, records were not produced. In cross-examination, he was also asked questions concerning records, and was extremely vague as to what records were kept and their present whereabouts, and when pressed, stated that the records had been handed over to his solicitors and were probably mislaid when he changed solicitors. He later said that he handed the records to his present solicitor, who was not called to explain their absence.

121. At the end of his evidence, there were very few primary records produced, and the copy tax returns in some cases were incomplete.

124. After Mr Pickett was called to give evidence in respect to damages, leave was granted to recall the plaintiff on the basis that he could explain what documents he had and what had happened to them. He informed the Court that he kept some records that were not produced. He referred to a shearing book and a shed book, which would have recorded wool classification and the number of sheep. He stated that he did not keep any record of his stock. He relied upon invoices as to sales and purchases. He did not keep any record of the number of lambs born and said that he kept the information in his head.

127. He gave evidence that he leased the home paddock from 1 July 1993 at an annual rental of $10,080. He did not give that evidence earlier. Clearly, it is a very relevant matter to the question of his claim for damages.

130. The records which were produced to the Court were inadequate. As I have stated, some of the copy tax returns were incomplete. There would be no way of carrying out an audit of the plaintiff's business activities from 1981 to 1996. The lack of records could be due to a number of reasons. First, they never existed; secondly, they have been deliberately mislaid; thirdly, inadvertently mislaid; or fourthly, lost by others. It was difficult to know what the true position was after the plaintiff had given evidence. Nevertheless, there were some ledgers produced to the Court which were kept by Mrs Stockwell and which recorded income and expenses. I do not accept that the plaintiff failed to keep records of his businesses.

133. A person who conducts a business and fails to produce adequate financial statements and documents can hardly complain if the tribunal of fact, faced with inadequate information or vague information having been supplied, based on memory, comes to the conclusion that the plaintiff has failed to prove part of his case.

136. All of the evidence relating to the plaintiff's alleged losses attributable to the death of some of his sheep and the consequential losses, has to be very carefully scrutinised, not only because some of the factual matters were like shifting sands, but the expert called on his behalf gave evidence based upon facts, not all of which were proven, and on occasions, on facts assumed without proper foundation by the expert.

139. All told, even making allowances for lack of education, difficulty with articulation and the dimming of a memory over a period of years, in my view, the plaintiff is one of those witnesses whose evidence has to be carefully scrutinised in respect to all matters.

142. The plaintiff was born on 8 July 1943 and is now aged 58 years. When he was two, his father purchased the land comprising some 676 acres at Nariel Gap Road, Thougla, some 18 kilometres south of the township of Corryong, in north-east Victoria. Some of the land was already cleared and thereafter, the family gradually cleared more of the property. Even today, the 676 acres are not completely cleared, as a variety of aerial photographs demonstrated. To the immediate south of the property, which at that point is some 1,820 metres wide, is a buffer zone of 200 metres and the Reference Area and surrounding forest. The whole of the area south of the farm was and is covered with dense forest and vegetation. A portion of the western side of the farm is also covered with forest, as is a small portion on the east. The farm is located in a valley and is undulating.

145. The farm comprised three discrete areas. First, the area immediately to the north of the buffer zone of the Reference Area comprised 578 acres, being Crown allotment 16C and parts of Crown allotment 16, and "parts of a former government road", being more particularly described in Certificate of Title 8541 Folio 800. There was some confusion in the evidence as to the total area but, in my opinion, the total area was 578 acres. This parcel was divided up into a number of paddocks ("the top paddocks"). There was located at the northern end of the top paddocks, a road and the second area situated on the other side of the road. This comprised two paddocks on either side of a pine plantation, which formerly was the area of the local school. The area on the eastern side of the plantation, being Crown allotment 16A, comprised some 17 acres, and the land on the western side of the plantation, being Crown allotment 16B, comprised some four acres. The top paddocks and these two areas were all comprised in the one Certificate of Title. The top paddocks gently sloped upwards in a southerly direction from the road to the buffer zone to the Reference Area. A feature of the top paddocks was the excellent water supply with a number of catchment dams, many of which were spring fed. In addition, the Burbibyong Creek passed through the property. The top paddocks are divided into five main paddocks. There were a number of improvements, namely, a hay shed and cattle yards.

148. The other area was the home paddock, comprising some 80 acres, being the land more particularly described in Certificate of Title 5181 Folio 035. Erected on the property is the plaintiff's residence, a machinery shed and a wool shed. The home paddock is situated to the west of the top paddocks and the two paddocks on either side of the plantation, and is approximately 800 metres from the top paddocks along the road dividing the two other areas.

151. It was in the area of the top paddocks where the dog attacks occurred. There is some evidence that wild dogs were seen on the home paddock, but no killings occurred on the home paddocks.

154. According to the plaintiff, the family ran sheep, cows and calves on the property. But in light of a stock killing report, signed by the plaintiff, dated 3 August 1981, which stated that, "Have not had sheep for 10 years on this property", one may have some doubt about the accuracy of the evidence. His sister did say that their father did run sheep, but she left the farm in 1959.

157. The plaintiff had an elder brother, Harold, who was born in 1935, and two sisters, Hazel and Elaine. According to the plaintiff, in the early fifties, the father was running some 200 to 500 sheep on the property. Some time in the early 1950s, an attack by a dingo occurred on the sheep, and the dingo was in fact tracked down and destroyed. It was a pure bred dingo.

160. In 1957, the plaintiff left school, but remained on the farm, helped out and earned money trapping, cutting wood and rabbiting. At that stage, he said that there were no wild dogs in the area. He rarely went into Corryong.

163. In 1961, when he turned 18, he left home and went into Corryong, where he was employed over a couple of years as a truck driver. In 1963, at the age of 20, he established his own carting business. Evidently, it was a fairly successful carting business. He was carting materials for the Snowy Mountain Scheme.

166. He was well remunerated for the cartage work. In 1964, he purchased a large truck, purchased a block of land from where he conducted his business, and employed a driver. From time to time, he helped out on the farm. He was earning substantial money. In 1965-6, there was downturn in the cartage business but, nevertheless, he continued to get plenty of work. He acquired another vehicle and in 1966, owned three trucks and employed two drivers. He continued with his cartage business, which was successful up until 1972, when he sold a number of trucks and his block in Corryong and purchased a farming property for $16,000. It was mainly bush, which he cleared, and he farmed cattle. He often went home to see his parents.

169. In 1971, his father died, and, according to the plaintiff, there were some 200 to 250 sheep on the property. His brother, Harold, was running the farm. His mother had a life interest in the property. After her death, Harold got the farming property. According to the plaintiff, he assisted to pay the probate duty. He was left a bull, the brother got the farm, and his two sisters were paid $2,000 each. In 1971, he purchased a bulldozer and did work bulldozing in the area.

172. In 1973, his mother was diagnosed with brain cancer and was bound to a wheelchair. For the next 18 months, the plaintiff helped his mother. At that stage, according to the plaintiff, there were some 200 to 250 sheep on the hill paddocks. By 1974, the mother was very ill. The plaintiff sold his truck. He continued to perform tractor work and helped on the farm. His mother died on 13 January 1975. In 1976, he established a saw mill and employed three men. He purchased a Fiat bulldozer and a second hand tractor. He continued to do contracting work for other farmers. His brother was also diagnosed with cancer and thereafter, could only do light work around the farm. At that stage, according to the plaintiff, there were some 250 sheep on the farm. To the best of his memory, there had been no dog attack other than the one in the early 1950s.

175. On 19 July 1977, a substantial area south of the hill paddocks was reserved, pursuant to s.14 of the Land Act 1958, from sale, lease or licence. The area in question contained 1,300 hectares (3,211 acres). Mining rights were excluded.

178. The area was situated some 200 metres south of the southern boundary of the hill paddocks. The land in between was Crown land, some 200 metres deep, and running the length of the boundary with the plaintiff's hill paddocks. It eventually became known as the buffer zone. The eastern boundary of the reserved area was in line with the eastern boundary of the plaintiff's hill paddocks, which ran generally north-south, and the western boundary of the reserved area was approximately 1,000 metres to the west of the western boundary of the plaintiff's hill paddocks.

181. The area was shaped in the form of an inverted isosceles triangle with the apex at the southern end. At its widest point, it was some 3.6 kilometres wide, and its length approximately 5.2 kilometres.

184. On 8 September 1977, a number of foresters employed by the Forest Commission Victoria at Wangaratta and Corryong, wrote a letter to the Secretary of the Forest Commission, which stated -

"Reference area - Burbibyong This area is probably ill chosen because of the prevalence of blackberries. Access to the area is peripheral. The provision of locked gates to prevent entry by the public to the edge of the reference area is undesirable and inconsistent to the situation which would apply to other reference areas eg Jemba. The attached plans shows existing access."

188. The attached plan showed a track to the west of the reserved area, running around its southern end and coming up on its eastern side.

191. The track on the western side is the Nariel Gap Track and the one on the eastern side is Stockwell's Track, which continued in a northerly direction through the eastern side of the hill paddocks.

194. On 18 April 1978, the Reference Areas Act 1978 ("Areas Act"), was assented to and came into operation on 1 June 1979. Its long title stated that the Act was "to make further provision with respect to the management of certain special areas of Crown land and for other purposes." Section 3 provided -

"Where the Minister after having considered a report from the Land Conservation Council is of the opinion that any area of public land should be preserved in its natural state as far as is possible because the area is of ecological interest and significance, he may recommend to the Governor-in-Council that that area be proclaimed to be a reference area."

198. Section 4 provides that the Governor-in-Council, on that recommendation, may, by proclamation, "proclaim that area of public land to be a reference area".

201. Section 5 empowered the Minister to appoint an advisory committee to advise on the issues of how the area should be protected, controlled and managed, "so as to preserve the areas in perpetuity as a reference to which persons concerned with the study of land may be permitted to refer for comparative purposes particularly when solutions to problems that arise from the use of the land by mankind are being sought."

204. Section 5(2) prescribed that the committee should comprise six members, three of whom were nominated by the Minister, and the remainder being persons who had qualifications in one or other of the scientific disciplines concerned with matters relating to the preservation or management of land and ecological communities.

207. Under s.6, the Minister had power to issue directives "for or with respect to the protection, control or management of" a reference area. It will be necessary to further consider the section later.

210. In 1978, the plaintiff stated that a dog attack occurred on the property and some two to three sheep were killed close to the southern border of the hill paddocks. At that stage, the hill paddocks were fenced with a five wire cattle fence.

213. The plaintiff continued to acquire plant and purchased a Caterpillar bulldozer after trading in a bulldozer. At this stage, he was spending about one-third of his year doing contracting work and the rest of the year was spent helping to run the farm. By this time, Harold was very ill, and the plaintiff was doing most of the work. Harold died on 8 November 1979, and left one-third of his estate to the plaintiff, and one-third to each of the sisters. The plaintiff was also left the sheep. In the following year, the plaintiff operated the farm.

216. Some time in mid 1981, and the plaintiff suggested May, there was a very serious dog attack by a number of wild dogs, and, according to the plaintiff, some 15 to 20 sheep were killed in the middle of the top paddocks, near the southern boundary. The plaintiff reported the matter to officers of the Conservation, Land and Resources Department in Corryong, and a dogman attended and set traps. At this stage, the plaintiff was laying baits to kill dogs, some one to two miles into the surrounding Crown land.

219. On 3 August 1981, the plaintiff signed a livestock loss report, in which he reported that 18 sheep were killed on his property on the night of 31 July to 1 August 1981. According to the report, there were 86 sheep on the property and 285 cattle. In evidence, the plaintiff asserted that those figures were wrong and that there were 285 sheep and 86 cattle. According to the statement, which was not in the handwriting of the plaintiff, the colour of the wild dogs was yellow, and they were not caught. In answer to whether attacks have occurred before, it would appear that the answer was "yes". The question is then asked -

"Yes. State approximately when and what damage occurred:"

"Ten years. Have not had sheep for ten years on this property."

227. What was recorded in the report was contrary to the evidence of the plaintiff that sheep had been on the property over the previous ten years. His attempt to explain the inconsistency in the evidence was far from satisfactory. His tax return for the year 1982-83 had an opening stock of 256 sheep, i.e. on 1 July 1982.

230. The plaintiff acquired his sisters' interests in the farm and this was achieved by 23 December 1981. He said he paid $150,000 to the sisters, and his sister, Hazel, who gave evidence, said she was paid $76,000 over five years. She thought that there had been a valuation of the property. This would put the valuation at somewhere in the vicinity of $228,000. The plaintiff stated that he had about 250 sheep at this stage. He was happy to run sheep because it gave him two opportunities to derive income, namely, from meat and wool. He said he wanted to increase his stock to up to 2,000 sheep.

233. The property was ideal for the running of sheep, as indeed it was ideal for grazing cattle. The plaintiff was also doing his contracting work at that stage, and it would appear that about one-third of the year, usually from about October to February, was involved in contracting work.

236. In 1982, during the winter, another dog attack occurred in which he lost some 30 to 40 sheep and later in that winter, he suffered another attack which killed 20 to 30 sheep. He reported the matter to the Department of Conservation, Forests and Lands and a dogman was sent into the Crown land to trap the dogs.

239. During this period, the plaintiff was laying baits through the middle of the Crown land, and he said that this seemed to overcome some of the dog problems.

242. By 1983, he was running some 800 sheep. In that year, he purchased plant and equipment to bail hay, and continued his contract work. He also improved his property by installing shearing sheds and sheep yards. He did most of the work himself.

245. On 21 June 1983, the Governor-in-Council proclaimed an area of some 1,300 hectares as the Burbibyong Creek Reference Area, pursuant to s.6 of the Areas Act. The Minister responsible for the recommendation was the Minister for Conservation.

248. On 13 July 1983, the Minister for Conservation published, in the Victorian Government Gazette, a directive for management of a number of reference areas, including the Burbibyong Creek Reference Area. It was noted that the boundaries of the references areas were shown in plans which were in the Ministry for Conservation, and it then went on to state -

"The plans for protection, control and management of the reference areas have been approved by the Minister for Conservation and copies of the plans are lodged and available for inspection at the Ministry for Conservation, 240 Victoria Parade, East Melbourne."

252. The directives for the management of the reference areas were -

"1. The managing authorities are to comply with the prescriptions for protection, control and management of each reference area contained in the plan which has been approved by the Minister for Conservation.

2. Entry of persons into the reference areas is prohibited, except for management personnel and others approved by the Minister.

3. Research work in the reference areas is to be carried out in accordance with conditions set down by the Minister.

4. Grazing, mining, mineral exploration, harvesting of forest produce, quarrying, beekeeping, educational use, recreation activities and all forms of harvesting (except water from the areas) are prohibited."

260. The Act, the directive and the Management Plan all provided for management of the Reference Area by a person or body. Management of the area was not inconsistent with the purpose of a Reference Area.

263. The Management Plan for the Burbibyong Creek Reference Area was dated May 1983. It will be necessary to refer to it hereafter.

266. According to the plaintiff, up until this point in time, he observed a dogman going into the area, which ultimately became the Reference Area, once or twice a week; this had been the pattern for a number of years. According to the plaintiff, the dogman informed him that after the declaration of the Reference Area, he was told that he was not allowed to go into the Reference Area.

269. A former dogman, Mr Leslie Tindall, gave evidence that prior to the proclamation, he did go into what became the Reference Area to catch wild dogs, but after the proclamation, he was told not to go into the area and to confine his activities to the Nariel Gap Road and Stockwell's Track, which he did. I accept his evidence, which is consistent with the Management Plan, which referred to the past practice of trapping on those tracks. He ceased to be a dogman after an accident in about 1987 and thereafter, the main dogman in the area was Mr Brian McNamara. He stated that he set snares and traps in the Reference Area in or about 1988-1990. I accept that he did set traps mainly in the buffer zone but on occasions, he set traps some half to one kilometre into the Reference Area from the southern boundary of the plaintiff's top paddocks. He caught three dogs in that area in May-June 1990.

272. Despite the declaration, the plaintiff continued to go into the area and lay baits and traps up to 1984-85, when he was told by a senior member of the Department that he was trespassing and could be prosecuted.

275. During the relevant period from July 1983, the same department has managed the Crown Lands in the north-east of Victoria. There have been a few name changes, re-arrangements, amalgamations and reduction of regions. It is convenient to refer to the ever changing entity as "the Department".

278. In November 1983, the Department known as Conservation, Forests and Lands was formed. Previously, it was known as the Department of Crown Lands and Survey.

281. In April 1990, it changed its name to Conservation and Environment, followed in October 1992 by Conservation and Natural Resources, and in April 1996, to Natural Resources and Environment. During the same period, the regions were altered, starting with 18 in May 1985, and reduced to 16 in 1987, when Wodonga and Wangaratta were amalgamated to form the North East Region. In May 1993, the 16 regions were reduced to five and in April 1996, back to six. Each change seemed to produce different positions, titles and duties, all adding to the confusion. In my view, the many changes helped to create the situation where very few of the Department's employees knew about the Management Plan, let alone its contents, or appreciated what was required to manage the Reference Area.

284. Prior to the proclamation, the plaintiff engaged a solicitor to write to the Department of Crown Lands and Survey, demanding compensation for the massacre of his sheep which occurred on the night of 29 April 1983. Some 20 first crossed ewes were killed and another 40 were badly injured.

287. The plaintiff, on 28 April 1983, heard wild dogs howling and reported it to the local Lands Department officer, asking for action. No action was taken. After the massacre, a dogman went into the area and set traps. Evidently, he was successful in trapping a number of dogs.

290. It was in April 1983 that the plaintiff complained about the dog problem and associated it with the Reference Area. His agitation produced some action by the employees of the Department and, in particular, Mr Holmes at Wangaratta. He was the Land Management Officer who was referred to by his office in the Management Plan.

293. The result was a promise to apply for a grant for materials to erect an electric fence on the boundary.

296. In response, the Acting Secretary of the Department of Crown Lands and Survey stated that he was obtaining a report, and pointed out that the Crown was not liable for such cases because it is "normally the land holders responsibility to hold such insurance or other cover against livestock losses".

299. In a letter dated 14 November 1983, the Chief Executive of the Department of Crown Lands and Survey wrote to the plaintiff's solicitor and stated that the Department does not accept liability. It is confirmed, and the plaintiff gave evidence, that the Department did provide him with materials for an electric fence, according to the letter, to "prevent his stock from trespassing into the adjoining reference area, despite the fact that Mr Stockwell has continually refused to keep his fence in good repair and has continued to allow his stock to trespass".

302. The letter further stated that it must be emphasised that "the reference area only deals with floral components of the biosphere, not faunal, and it has no connection with wild dog habitat." This observation was wrong. Fauna were in the Reference Area.

305. The plaintiff obtained the materials from the Department on an ex gratia basis and commenced to erect the fence early in 1984. Although the topic of subsidies for electric fences had been raised in 1984, and seriously discussed from 1987, the subsidy scheme was not put in place until early 1992.

308. The plaintiff obtained the materials in January 1984, pulled down the fence on the southern boundary and erected the electrified fence over the next two years. It was run by electricity generated from a solar panel. All told, its length is approximately 1,365 metres. It did not completely run the length of the southern boundary. It was at least 455 metres short of reaching the western boundary. At the time the plaintiff was erecting the fence, he was gradually pulling down his old fences on the southern, western and eastern boundaries. Having completed the distance along the southern boundary, parts of the western boundary of his property were unfenced. The boundary down the eastern side had been removed. It followed that any enterprising dog, which may have been in the Reference Area and wished to get onto the plaintiff's top paddocks, could have gone around the edge of the electrified fence.

311. In 1985, the plaintiff was told by Mr Ross, a senior member of the Department in charge of operations at Corryong, that he must not go into the Reference Area to lay baits or traps, and thereafter, he did not. However, there was a buffer zone between the southern boundary of his property and the Reference Area of some 200 metres, and he did venture into that area and lay baits. Eventually, he stopped doing that.

314. In the years that followed, according to the plaintiff, there were frequent attacks by dogs and he suffered stock losses. In an endeavour to stop the dog attacks, he slept out at night in his truck. During the lambing season, and especially during winter, he spent many nights out in the top paddocks. He could hear dogs howling in the Reference Area. From time to time, he saw dogs at the fence. He thought that there were anything up to six dogs in the area at any one time. Despite his presence, the dog attacks continued.

317. On 10 February 1987, he married his wife and she resided with the plaintiff in the residence on the home property. She had a farming background. She was married to an engineer, and assisted on a farm and raised a family. In 1987, the attacks were getting worse and during that period, the plaintiff thought that he had at least three to four big attacks during the year. He was losing a substantial number of sheep. He reported the attacks to the Corryong office. He was sometimes told that a dogman would be available; on other occasions, he was told that the dogman was not available because he was on leave or ill, or that a dogman could not come out because he had travelled his maximum number of kilometres for the week.

320. On 18 March 1987, the plaintiff received a letter from his accountants which raised concerns about his financial problems.

323. The letter stated that the plaintiff had suffered an accounts loss of $35,240 for the year ending 30 June 1986, and warned the plaintiff that "the enormity of the loss is of concern and requires your close attention. Such losses are increased by high borrowings and the associated high interest cost of approximately $10,000 pa." A firm suggestion was made that budgets be prepared for all income and expense items and that consideration be given to options available to improve profitability. It was suggested that the plaintiff meet with his nephew, Craig Schrieber, to discuss it. The advice given concluded as follows -

"It is desirable to plan for the gradual reduction of external interest bearing loans to lessen the interest expense burden on your operations."

327. The financial accounts as at 30 June 1986 showed a net loss of $35,240, which compared with profits in the two previous years. The accounts showed that he suffered substantial losses over the next six years, eventually making a profit in the year ending 30 June 1993, by which time he was out of sheep. It will be necessary to consider his financial position hereafter, but his financial position was becoming precarious by March 1987.

330. A report prepared in March 1987 in the Department of Conservation, Forests and Lands noted that some 909 dogs were caught during the calender year 1986 throughout Victoria, and that the number was somewhat higher than the average number caught over the previous ten years, at an average of 866 dogs per year. This report covered the whole of Victoria.

333. A wild dog control plan was prepared by two members of the Land Protection Division of the Department. It was noted in the report, dated April 1987, that one of the goals of the plan was "to prevent stock losses from wild dog attacks, using the most efficient and humane control methods available with an emphasis on preventative, rather than reactive, control programmes." In addition, another goal was to exclude wild dogs from private land.

"Wild dogs represent a major risk to livestock in many areas of Victoria. They attack, harass and occasionally kill cattle, horses and goats but pose the greatest threat to sheep; wild dogs may kill or maim many sheep in a single attack. A recent survey of land holders showed that annual stock losses due to wild dog attacks in eastern Victoria amount to approximately $480,000."

340. It was noted that the main problems encountered were where freehold land abutted forested Crown land. It was also noted that the areas of particular vulnerability were the cleared narrow valley floors high up in densely forested catchment areas. It was noted that the Department of Conservation, Forest and Lands employed 23 full-time doggers and three part-time doggers, who were jointly responsible for catching about 1,000 dogs per annum.

343. The evidence clearly establishes that by April 1987, officers within the Department were well aware of the problems posed by wild dogs in respect to sheep farming, and the necessity to take steps to control the wild dogs and exclude them from grazing properties. It was also noted, at that time, that there was a community concern about the preservation of dingos in areas remote from pastoral country. It was further noted that because of cross-breeding, it would be very difficult to differentiate between "dingos, feral dogs and their hybrids. All are collectively referred to as 'wild dogs'."

346. In 1987, after a series of wild dog attacks, the plaintiff complained to the Department and his local member of Parliament. This brought action from the Department. A senior officer, Mr R. Patrick, was assigned to look into the problem and a number of measures were put in place; none, however, specifically aimed at the plaintiff's particular problem with the Reference Area.

349. It is convenient at this point to trace the history of the Reference Area.

352. The Reference Area was proclaimed on 21 June 1983. A draft Management Plan had been prepared for the area in March 1983, and was finally adopted in May 1983. The draft Management Plan was retained on the Department files either at Wodonga or Corryong, but there is considerable doubt whether the final Plan was ever on the file. Nevertheless, there is no material difference between the two Plans.

355. The directive published by the Minister in the Government Gazette on 13 July 1983 directed that the managing authorities were to comply with the Plan. Section 6(2) of the Reference Areas Act also required compliance with any directive by "the person or body responsible for the protection, control or management of the Reference Area". (Emphasis added).

358. However, the directive permitted persons to enter the area who were "management personnel". The Plan dealt with administration. It provided -

The Reference Area is currently administered by the Department of Crown Lands and Survey."

363. That was the name of the Department at the time. The Plan went on to provide for, what was described as, "contacts" and two persons were referred to. The first was described as the "Land Management Officer Wangaratta" and the person concerned was Mr Alan Holmes. He was employed by the Department during the period 1981-1985 and occupied the position of Crown Lands Management Officer based at Wangaratta. His duties included land management. He left the position in late 1984 to early 1985. He was responsible for the oversight and condition of Crown lands in the north-east region of Victoria and he accepted that the Reference Area was under his control. He stated that he visited the Reference Area three or four times during his period in the north-east. Prior to the proclamation, he visited the area because of, inter alia, the dog problems. He met the plaintiff on that occasion.

366. Mr Holmes was aware of the dog problem on the plaintiff's property. The plaintiff was not the only one who was concerned about dog attacks. A meeting was held on 10 May 1983 of farmers from the area to discuss issues relating to dogs. The question of the Reference Area and its influence on the wild dog problem was discussed. It was generally agreed at the meeting that the Reference Area was no different to any other Crown land. However, it should be pointed out that the area had not been proclaimed at that stage, nor had any directives been made prohibiting the entry of persons into the area. Further, at that time, the dogmen were going into the area to catch dogs. A motion was passed at the meeting that an additional dogger be employed. At that stage, there was only a single dogger.

369. The other person referred to in the Management Plan was Mr Les Barton, Inspector of Lands at Corryong. He was employed by the Department right through the period until he retired in 1992. He also had a responsibility for the Reference Area and its management.

372. The Reference Area was described and reference was made to a buffer strip of 200 metres. It is also noted that to the north of that buffer strip, were freehold allotments. The allotments were the plaintiff's land. Views have been expressed during the period from the late 1970s through to the early 1990s, that a buffer zone in excess of one kilometre is necessary where the Reference Area abuts freehold grazing land.

375. It was noted that weed problems were severe along the two creeks which ran through the area "where blackberry has infested the moist flats and adjacent lower slopes. The thickets extend for at least two kilometres along each branch, the width varying with the topography but extending at least 20 metres each side of the creek." It was also noted - "Trapping has been carried out in the past on Nariel Gap Track and Stockwell's Track as part of the programme of extermination of wild dogs under the Vermin and Noxious Weeds Act 1958."

378. I interpolate to observe that at all relevant times, wild dogs were declared vermin under that Act and there was an obligation on all land holders, including the Minister of the Department, to take "reasonable action to destroy and suppress all vermin".

381. In referring to the condition of the area, the Plan stated -

"Infestation of blackberry along the two branches of Burbibyong Creek has had considerable impact. The dense thickets successfully compete with, and generally replace, the low indigenous shrubs and grasses."

385. The evidence established that wild dogs used areas of blackberries to obtain cover.

388. The Plan dealt with control of what was described as "alien species". It was noted that there was a problem with blackberry thickets and that it was proposed that there be "a continued programme of careful control by the most environmentally acceptable means", to suppress blackberry. With respect to trapping of wild dogs, clause 2.3.1 of the Plan provided -

"The present practice of trapping for wild dogs along Nariel Gap Track and Stockwell's Track may be continued as necessary. Control of any introduced species within and surrounding the reference area shall be aimed at containing the species to a level at which it would have a minimal influence on the natural eco system."

392. Two parts of the Plan required a record to be kept. In clause 2.3.1, appeared the following -

"A full record is to be kept of all weed eradication and animal control by the Inspector of Lands Corryong. Details including materials and methods employed, machinery used and area covered should be recorded for the works carried out each year."

"Detailed records are to be kept of all management activities pertaining to the reference area and adjacent public land."

400. In fact, no specific records were kept by the Department, either at Wodonga or Corryong. If it was necessary to determine what, if anything, had been done in relation to protection, control and management of the Reference Area, it would be necessary to trawl through all of the Department files at Corryong and Wodonga to determine what, if anything, had been done. There was a record relating to weed control from 1991, and although Mrs Bailey, who took over Mr Barton's position in 1992, thought that there were other records, she was unable to locate any.

403. Maps were kept at the Corryong office on an annual basis and these recorded, for the region around Corryong, where traps, snares and poison baits were laid and where dogs were killed.

406. Mr Holmes, who was the person responsible, together with Mr Barton, during the period 1983-1985, was of the view that the Reference Area was no different to Crown land and accordingly, no particular management programmes were put in place in relation to it. I am satisfied that during that period, trapping of dogs continued on the tracks on the eastern and western sides of the area, but no trapping occurred within the area. Further, there was no evidence that any weed eradication, including blackberry spraying, occurred during this period.

409. Mr Holmes had a meeting with the plaintiff in 1983 which resulted in the ex gratia provision of materials to erect the electric fence. Mr Holmes was fully aware that the plaintiff was of the view that the Reference Area was providing a safe haven for the dogs.

412. Mr Holmes was responsible for managing the Reference Area during the period 1983 through to late 1984/early 1985.

415. After he left, the Department reorganised and a regional manager was appointed for Conservation, Forests and Lands based at Wangaratta; he had the responsibility for the Reference Area. That was Mr Bernie Evans. He was not called as a witness.

418. There is no evidence of any particular management steps with respect to the Reference Area during the period from 1983 through to 1987. The dogman was not permitted to go into the area and the trapping of dogs was confined to the tracks on the sides of the area. No spraying of blackberries took place in that period either.

421. By 1987, a dogman was required to complete what was called a dogger's diary. Diaries were kept in the following years. By reference to the diary, one could determine the number of snare and traps used and over what period, and details concerning dogs and other species caught or poisoned. This information was sent to the Keith Turnbull Research Institute at Frankston, which had been set up in the mid-1960s and whose main function was to research, inter alia, pest animals and their control. In the diary, which was compiled on a monthly basis, were noted the location of where the dogs were captured. In the years 1985 and following, an annual map was displayed in the Corryong office of the Department and when a dog was killed, the location of where it was caught was noted on the map.

424. By referring to the map, it would be possible to say where dogs were captured, but the map gave no more information than that. It was not possible to say when dog activities were performed, nor did it give any detail of the type of activity involved to eradicate the problem. The dogmen's diaries, which were completed monthly, provided some information as to the number of snares, the period during which they were in the field, and the details of wild dogs and other animals caught. No doubt, consultation with the dogman could provide some information.

427. The failure to keep records of management activities in the Reference Area as required by the Plan meant that what evidence was given as to management was based on memory, and, to some extent, was unsatisfactory.

430. It is clear that the plaintiff had, since 1982, right through to July 1990, been a vocal and aggressive complainant of the dog problem he encountered on his top paddocks and, in my opinion, the senior personnel at Wodonga responsible for dog control and responsible for management of the Reference Area, and all personnel at Corryong, were well aware of the plaintiff's complaints from 1983 onwards and that he was of the view that the Reference Area was providing a safe haven for dogs.

433. In 1987, the plaintiff was publicly complaining about dog attacks and receiving publicity in the local press. During 1987, he saw dogs at a water trough and observed dogs going under the electrified fence. He continued to do contracting work between October and the following January-February. Despite the note of caution expressed by his accountants, he continued to increase his plant and purchased a Ram Roller for harvesting. He was of the view that his business was improving. His debts were increasing.

436. As at May 1987, the plaintiff had a substantial loan from a solicitor. He approached his bank to increase his term loan. He obtained Commonwealth Bank and Commonwealth Development Bank finance totalling $200,000, which was used to pay out the solicitor's loan of $106,000, clear his overdrawn account with the ANZ Bank of $41,000, repay a family loan of $4,500 and provide $8,500 for a hire purchase debt. $20,000 was set aside for stock purchases. He had over $15,000 for working capital.

439. In the winter of 1987, the plaintiff suffered a very bad attack and some 200-250 sheep were killed or maimed. He attempted to avoid the attacks by moving the sheep around, but the dogs tended to follow. He continued to stay out at night in an endeavour to prevent dog attacks.

442. Because of the large sheep losses in mid 1987, the plaintiff made complaints to the Department in Melbourne about the wild dogs.

445. He approached the local State member of Parliament, who wrote to the then Minister for Conservation, Forests and Lands, the Honourable Joan Kirner, concerning the wild dog problem. The letter, dated 7 July 1987, noted that the plaintiff had contacted the writer, Mr Lieberman MP, and stated that the plaintiff estimated he had lost about 200 sheep in the previous few weeks and that only one trapper was working, and the other was on holidays. The letter requested that the trappers work through the winter and asked what the proposals were to tackle the dog problem. In a response dated 14 August 1987, Mrs Kirner queried the claim that 200 sheep had been lost and stated that although a dogger took leave, there was no decrease in the wild dog control operations. In respect to the question of the Department tackling the problem, she referred to a public meeting held at Corryong where some 25 land holders attended, together with a number of public servants. She recorded that a number of proposals were put forward, including a subsidy to land holders to construct electric fences, to provide financial assistance to a dogger for his horse, to review the poisoning programme, to increase dog owners' awareness in relation to domestic dogs and to involve the local land holders in relation to the programmes.

448. Mr Geoff Ross, who was the Operations Area Supervisor at Corryong, and the local dogman, Brian McNamara, attended the meeting with a senior officer of the Department, Mr Rob Patrick, who was the Assistant Regional Manager - Resource Conservation for the north-east region.

451. Mr Patrick was appointed in February 1987 as the Assistant Regional Manager for the north-east region based at Wodonga. Around November 1990, he was appointed Deputy Regional Manager Planning. He reported to the Regional Manager who was Mr Bernie Evans.

454. Mr Patrick was allocated the task of looking into the wild dog problem in 1987, and it is a fair inference, from the documentary evidence, that the plaintiff's complaints to the Department in Melbourne, followed by the letter from the local MP, caused a number within the Department to focus on the dog problem, including his own. Mr Patrick believed that he would have been informed about the plaintiff's particular problems, and about the plaintiff himself, and he recalled at some time being informed that the plaintiff was of the view that the dogs causing him the problems were coming from the Reference Area. At this time, namely, May/June 1987, Mr Patrick was involved in a proposed poison bait programme in the Corryong area to kill wild dogs. Mr Patrick was told by the plaintiff that he had suffered considerable stock losses over the past five years, and was critical of the lack of action by the Department. He also informed Mr Patrick that a number of persons were contemplating bringing proceedings for compensation for stock losses due to dog attacks. The plaintiff also informed him that in his view, greater efforts were required, including accelerating a poison programme. It was recognised within the Department that the poisoning programme should be improved and employed more often.

457. As a result of the meeting of farmers held on 2 July 1987, at which Mr Patrick attended, certain follow-up actions were put in place. Amongst the actions contemplated was a review of the poisoning programme, by increasing the activity and laying poison baits in the higher country, i.e. to the south of the Reference Area. In addition, consideration was to be given to subsidies for electric fencing and to providing an appropriate subsidy for a horse for at least one dogger at Corryong to access areas restricted by road conditions in winter.

460. Mr Patrick did not put in place any particular system, procedure or activity to minimise or eradicate wild dogs in the Reference Area, nor did any other person within the Department in the following years.

463. Mr Patrick was in a position to require that certain steps be taken with respect to the Reference Area, but did not consider that it was different to the other Crown land. He believed that within the resources given to the Department, the wild dog control procedures were appropriate.

466. The evidence revealed that in November 1987, a poison bait programme was carried out in an area some kilometres south of the Reference Area. Another poison bait programme was not carried out in the area until the year 1991.

469. Despite the agitation by the plaintiff and his complaints, and his media coverage in July 1987, nothing was done by the Department to meet his specific complaints and, in particular, to attempt to eradicate the wild dogs in the Reference Area. The wild dog catching programme, which had been in place for many years, was continued, namely, trapping on the Nariel Gap Track and Stockwell's Track, but not within the Area itself.

472. During 1988, the problems continued, attacks occurred about every month during winter, and the plaintiff lost stock. He slept out in his truck two to three times per week over a considerable period of that winter. He heard howling in the Reference Area. He identified up to four dogs moving on the house paddock. The dogs continued to come and the sheep continued to be attacked.

475. He continued with his contracting work during the summer months and was aware that his debt levels were increasing. The Commonwealth Bank was putting pressure on him to reduce his debts.

478. When he did complain to the Department, dogmen were sent out into the buffer zone, but he thought that they were not very effective.

481. As at 30 June 1987, he had debts totalling some $335,077, with total assets of $317,125. He was paying a massive amount of interest on his loans. Of a total gross income of $66,327, his interest bill totalled about $54,764 and he suffered a net loss of $65,179.

484. During 1989-1990, the dog attacks continued, sometimes two to three times per week. By late 1989, the rural scene was such that there was very little value in sheep.

487. In mid 1990, the plaintiff was of the view that his sheep were in good condition. However, that was not the view of the Department of Agriculture. He had some 2,180 sheep at this time. He had 1,200 ewes, 120 wethers, 800 lambs and 28 rams. His financial position was parlous. Whilst he had net assets of $120,605 based upon a revaluation of his farming property of $412,585, his liabilities to the banks and creditors totalled $346,346. He suffered a business net loss of $28,924 to 30 June 1990, which followed on four years of substantial losses. He approached the Department at Wodonga to get more materials to complete the electric fence. In the early part of July 1990, it was very wet and there was snow on the top paddocks. He experienced a substantial number of sheep losses, somewhere in the vicinity of 190.

490. In July 1990, a complaint was made to the local animal health officer, who referred it to the Department of Agriculture. On 13 July 1990, Dr Farquhar, the District Veterinary Officer, visited the plaintiff's property and accompanied him on an inspection. He observed that there were numerous carcasses in the top paddocks, that the sheep were in very poor condition and that the lambs were very poor and some orphaned. The sheep were in the lower areas of the top paddocks, which did not provide sufficient feed. The sheep had been attacked and were refusing to feed on the higher part of the top paddocks. Dr Farquhar advised the plaintiff that the sheep appeared to be starving due to stress of being heavily in lamb and lambing, poor paddock feed, very cold and wet weather, and probably worm problems. He noted that the sheep were in the lower area because of the dog activity. He advised the plaintiff to remove the sheep from the areas where they were attacked, because to expose the sheep to probable dog attack was cruel. He suggested a different feeding regime. It was said that if steps were not taken, the plaintiff may be liable to prosecution under the Prevention of Cruelty to Animals Act.

493. The plaintiff does not agree that the sheep were not in good condition. I reject his evidence and accept Dr Farquhar's evidence.

496. Dr Farquhar re-visited the property on 17 July and observed that the sheep were being well fed, indeed overfed, and noted that the sheep were not being killed on the flat but that if they wandered up into the hills, were likely to be attacked. He noted that shearing would commence at the end of September. He re-visited the property on 24 July and stated that the sheep had been moved to the top side due to wet conditions. Dr Farquhar observed that the sheep were improving. It is observed that there is no suggestion in the reports of Dr Farquhar, or indeed his evidence, that he was told by the plaintiff that he was about to sell all his sheep.

499. The plaintiff gave evidence that he sold his total sheep within a matter of a few weeks of the visit of Dr Farquhar and sent off his cattle to Corryong. Answers to interrogatories were to the same effect. The facts were incorrect.

502. He was cross-examined on the evidence, suggesting he was wrong, and was confronted with documents which, if correct, showed that his evidence was wrong.

505. The plaintiff's copy financial statements revealed that he had sheep over the next few years. In re-examination, he gave a completely different version of the events. He stated that in the last few weeks of July, he sold some 80 to 100 sheep to Tallangatta Meatworks, and sent some 400 sheep to a blood and bone factory in Wodonga, for which he received no payment. In early August, he shifted some 200 sheep to a neighbour, and followed up a week later with more sheep to the same neighbour. He stated that in late August, he sent more sheep to the blood and bone merchant, and took the balance to Mr Harrison's property. According to his tax returns, he had some 2,180 sheep at 1 July 1990 but none at 30 June 1991, but his evidence revealed that only 1,350 were disposed of. He brought the sheep back to his property in October for shearing and sold some of the sheep over the following months.

508. He asserted that in March 1991, he had sold all his sheep, but that again is incorrect, as his tax returns reveal. He did admit, but in a vague way, that he did have more sheep. It appears that his wife purchased a few sheep.

511. The plaintiff's evidence in relation to what he did after Dr Farquhar's visits places a question mark over his credibility. As I have already stated, making allowance for memory fading, lack of education and inability to articulate, it is hard to believe that a bad memory was the cause of the incorrect evidence. The amended statement of claim, the opening, his examination-in-chief and answers to interrogatories all conveyed the fact that he was forced to sell his sheep because of the threat that he would be prosecuted. This was untrue. I do not accept that it was due to any memory loss, and, in my view, the plaintiff deliberately attempted to mislead the Court.

514. The case was opened on the basis that Dr Farquhar's visit and report caused the plaintiff's farming venture to fail within a month, causing enormous consequential losses, and the events could all be traced to the loss of sheep over the preceding seven to eight years. The uncertainty as to what did happen reflects upon the plaintiff's case.

517. In a letter dated 30 July 1990 to the Victorian Farmers' Federation, the plaintiff stated that he was asking the Department to supply materials for an electric fence. He noted that he was fighting a losing battle with the dogs, and asked for compensation for sheep already lost and still being lost. The letter concluded with the observation:

"If I go out of sheep altogether the loss of income would be so great and I will be unable to survive on the farm."

521. A letter hardly consistent with the version given in evidence that by that time, he had sold all his sheep because of the threat of prosecution for animal cruelty.

524. It should not be overlooked that during this period, the wool market was not good and the value of sheep had dropped dramatically because of drought suffered in nearby areas.

527. In August 1990, he visited the Commonwealth Bank and informed the manager that 150 lambs were to be sold as soon as there was a break in the weather, that it was too wet for dozer work and that there would be no income until shearing. He informed the manager there was a pressing account for a new silo of $1,824 and that he would call again as soon as his accountant had completed financials and budget. The plaintiff stated that he was working on a management plan. Again, hardly a report to a bank manager if he had by then sold all his sheep and was no longer a sheep farmer.

530. On 14 November 1990, he sent to the Rural Finance Corporation, an application for a finance grant to assist with payments of interest, in which he noted that he had some 2,148 sheep, as well as some 154 cattle. He certified that the contents of the application were true.

533. The Rural Finance Corporation responded on 7 December 1990 and noted that he was running some 1,200 ewes, 800 lambs, and 70 breeding cattle, and that his liabilities totalled $372,238.

"The details submitted clearly show the level of debt to be too high for your farming and contracting business to service and the provision of subsidy assistance would not enable a shortfall to be covered. Under the subsidy provisions of the Rural Adjustment Scheme, we are obliged to be satisfied that the farmer's difficulties are due to factors outside his control and that given assistance, the operation has sound long term prospects for success. In the circumstances we are unable to provide the assistance you are seeking and your application has been declined."

540. The plaintiff denied that an officer had attended at the farm before the application was refused.

543. I am satisfied that an officer of the corporation attended at the plaintiff's farm before that letter was written, and the decision to refuse the application was based on the officer's recommendation. That officer's report confirmed his visit.

546. The significant point is that the plaintiff revealed in his application that he had over 2,000 sheep. The officer of the Corporation noted in his report the number of sheep at the date of his inspection, which was 30 November 1990. These matters were put to him in cross-examination, suggesting that he was wrong in his evidence about disposing of all of his sheep in July 1990. His response was evasive and prevaricating. Much later, when he was re-examined, he substantially changed his version. I do not accept that his first version was due to error on his part. It was deliberately false.

549. The plaintiff gave evidence that he thought that he had no hope of running a grazing business on his farm by the end of 1990. That is not surprising, bearing in mind his parlous financial state. However, he continued to do so for some years thereafter.

552. In March 1991, he sold approximately 630 sheep.

555. In April 1991, he leased the top paddocks to the Whitsed family for a period of three years. The lessee was obliged to fertilise the property, something which the plaintiff had not done in 15 years. The rental was $20,000 per annum. The lessee ran cattle on the property. The return of $20,000 per annum raises the question whether the leasing provided a better financial return than running sheep on the area. This question will be addressed hereafter.

558. During the latter half of 1990, the plaintiff worked around the home block and continued his contracting work.

561. Wild dogs were proclaimed vermin under the Vermin and Noxious Weeds Act of 1958 by notification in the Government Gazette on 22 August 1984. As a result, all public and private land managers were responsible for wild dog management on lands under their control. It will be necessary to consider the effect of that proclamation in relation to the management of the Reference Area and surrounding areas. The statutory obligations applied to the Crown and Crown land, and imposed a duty on the Minister.

564. In June 1991, the plaintiff had a discussion with the manager of the Commonwealth Bank. He informed him that he was proposing to sell stock valued at $73,200 and that upon receipt of the sale proceeds, the funds would be used to reduce his loan arrears of $70,000. The plaintiff told him that the rentals received from the property were also to be used in reduction of the overdraft debt.

567. The plaintiff also discussed his problems with the Commonwealth Development Bank at Wodonga and a report confirmed that there were no prospects from his income to meet commitments as they fell due, and the bank supported his decision to sell off the sheep and cattle to clear the debts. The arrears due to the Development Bank was $15,915, and in a follow-up letter of 19 November 1991, he was requested to do something about them.

570. By 1 July 1991, the plaintiff had substantially reduced the number of sheep he owned, but the financial statements and the evidence of the plaintiff make it difficult to be precise. In the next two financial years, the plaintiff was still selling sheep and in 1993, he sold a small quantity of wool. But he still grazed cattle and derived substantial income from sales for the years ending 30 June 1992 and 1993.

573. The evidence clearly established that in the late 1980s, through into the early 1990s, the plaintiff's top paddocks abutting the Reference Area were unsuitable for the grazing of sheep, and this is supported by the view expressed by Dr Farquhar in February 1992. Dogs did enter these paddocks. The fencing around the top paddocks was inadequate.

576. In September 1992, the plaintiff made a further application for financial assistance from the Rural Finance Corporation, and his application revealed that he had 62 fine wool merino sheep. It would appear that they were the sheep that were purchased by his wife. His application again was refused. It is noted that the fine wool sheep were purchased in May 1992. It was noted that his borrowings at that stage were $406,700 and that his farming and business operations were quite incapable of meeting his loan commitments.

579. In early 1993, the plaintiff and his wife decided to conduct a museum for tourists, showing old farm machinery, plant and equipment, and furniture. They established the museum and were ready to commence the operation. At this stage, the Commonwealth Bank were putting pressure on them to pay the loans and on 20 March 1993, a meeting took place between bank officers, the plaintiff and his wife. A rural counsellor was present to assist the plaintiff with his budget and financial problems. It was proposed and accepted by the plaintiff and his wife that he would sell up the chattels, including the proposed museum pieces, and also his heavy plant and equipment. There was some dispute in the evidence as to whether the plaintiff promised to pay the proceeds to the bank in part payment of the loan arrears. I accept the evidence that the plaintiff promised to pay money from sales which were about to take place, of various plant and equipment, to liquidate his debts. His interest bills at that time totalled approximately $63,000 per annum and his debts totalled approximately $417,921, which was an increase of about $70,000 since 1 July 1990.

582. On 15 May 1993, an auction was held at the plaintiff's property, clearing antique collector's items, and some $14,000 was received. The plaintiff stated that he paid off the banks and the creditors, but that evidence was untrue. Again, it seriously attacks his credibility. On 5 June 1993, he held another auction of plant and machinery and all was sold, save for a tractor-dozer. He received $86,000 from the auction and sold the dozer some three years later for $10,000. Again, he stated that he paid the banks and creditors. I do not accept that he paid any moneys to the bank. His evidence was untrue.

585. On 6 August 1993, the Burbibyong Trust was established, with the plaintiff and his wife as trustees. Mrs Stockwell gave evidence that she, through a friendly law clerk, prepared the trust deed and had it executed. She informed the Court that she received no professional advice or assistance in regard to it. However, she later changed her evidence and informed the Court that a solicitor had looked over the documentation. The plaintiff and Mrs Stockwell gave evidence that the plaintiff ceased to be a trustee of the Trust, but there is no documentation to support that statement and the evidence of both was vague and uncertain. A number of persons lent some $15,000 to the Trust. The Trust was established in order to hold property and the main beneficiaries were the grandchildren of Mrs Stockwell. However, the timing of the formation of the Trust and the events surrounding it suggest that attempts were being made to insulate property from the plaintiff's creditors. The vagueness of the evidence and the prevarication by the plaintiff and Mrs Stockwell support that view.

588. On 28 September 1993, the plaintiff and his wife purchased Gibson's property for $143,000. This was at a time when the plaintiff owed a large amount to two banks. It followed after the two auctions, and some of the proceeds were used for the purchase. This property comprises 63.248 acres and is situated to the south-east of the home block. It is located between the home block and the small blocks adjacent to the pine plantation. It was purchased for $143,000 and a mortgage was obtained from the WAW Credit Union, Wodonga, in the sum of $100,525. The plaintiff gave evidence that the Trust borrowed some $15,000 from relatives and friends, which left a balance of approximately $28,000 plus an amount for stamp duty. I am satisfied, despite the prevarication of both the plaintiff and his wife, that the balance of the price came from the sale of the chattels and plant and machinery.

591. In light of the establishment of the Trust, it is surprising to observe that the contract and Title were in the name of the plaintiff and his wife.

594. By taking on another mortgage commitment, the plaintiff was exacerbating his already parlous financial condition and making it impossible to survive. A sale of his farm was inevitable.

597. The Commonwealth Bank was still pressing for payment and in a letter sent 10 December 1993, signed by the plaintiff and his wife, reference was made to the purchase of the Gibson's property. The letter concluded -

"Your information of us buying the property next door is wrong. That property was bought by a Burbibyong Trust. We do not own it or have anything to do with it."

601. The property was purchased in the names of the plaintiff and his wife. There was no evidence that the purchasers declared that they held the property in trust. Further, there was no evidence that it became trust property. But in any event, to suggest that the Stockwells had nothing to do with the property was a lie. Whether owned outright or through the Trust, of which the plaintiff and Mrs Stockwell were trustees, they certainly had something to do with the property. After taking possession, the property was used by the plaintiff and the Trust.

604. Their conduct, including the way they gave evidence in Court, tends to the conclusion that the Trust was set up to enable the plaintiff and his wife to avoid the plaintiff's creditors, if possible. The fact was that when the Gibson's property was purchased, Mr Stockwell was close to insolvent and owed a very large amount of money to the Commonwealth Bank. Having sold his plant and equipment, chattels and most of his stock, he no longer had any assets to earn income other than his farmland. The top paddocks were still leased. When he was recalled to the witness box, he produced a lease which showed that he leased the home paddock of some 100 acres to W.L. Klippel and Co Pty Ltd for five years, at an annual rental of $10,880. The lessee was obliged to apply fertiliser each year. This lease had not been mentioned during examination-in-chief and clearly was relevant to his damages claim. It was a significant source of income and when combined with the other rent, brought in $30,880 per annum less very few expenses.

607. The plaintiff gave evidence that he was feeling down and depressed in 1993/94, and this is supported by evidence of his wife and others. I do accept that he was extremely annoyed, distressed and upset by the loss of his farm and felt a real grievance against the government and the banks. At this stage, the relationship with his wife deteriorated and they separated in 1994 for some three months, but eventually got back together. He stated that he was doing odd jobs around the farm at that stage. In 1995, he was working at Cudgewa, in a dairy operation, for about one year.

610. The plaintiff did not pay any amounts from the sales in mid 1993 to the bank. The last time he made any payments to the bank was on 4 February 1993. As at 11 August 1994, his term loan account was in debit in the sum of $211,512 and his overdraft was in debit to the amount of $128,718.51.

613. In 1994, the Burbibyong Trust did not disclose that it had any interest in the Gibson's land, and, according to the plaintiff's accounts, he had an interest in that land in 1994. However, the Burbibyong Trust revealed it as an asset in the following year. The land was sold in October 1996 for $103,000.

616. It was revealed by the auctioneer at the auction, and was a term of the contract, that the two top paddocks were affected by dog attacks and were inappropriate for running sheep. I find that that fact had a downward effect upon the purchase price of the top paddocks and I also find that, overall, the fact that the sale was a forced one, also had a depreciating effect upon the value of all the blocks.

619. The Commonwealth Bank continued to press for payment of arrears. The Stockwells refused to pay any interest and the level of the indebtedness was substantially increased. They sought to compromise the indebtedness by the bank waiving interest, but it refused to do so. The result was that the Stockwells refused to pay interest. The Commonwealth Bank threatened to take possession and required the plaintiff to sell the top paddocks, the two small lots on either side of the pine plantation, and the home block. An agent was engaged by the plaintiff and was instructed by the bank as to what were the appropriate reserve prices. No bank representative was at the sale and the sale was not advertised as a mortgagee's auction. However, no doubt those in the area were aware that it was a forced sale. The agent who conducted the auction was required to take instructions from the bank, which was done over the telephone.

625. The home block was sold for $170,000 and was purchased by the Burbibyong Trust. Two blocks, situated each side of the pine plantation, were also purchased by the Burbibyong Trust for $32,000. The top paddocks, which abutted the Reference Area, were passed in at $210,000 but were sold some weeks later for $225,000, making a total of $457,000.

628. The banks were paid out, and the plaintiff and his wife remained on the home block. The plaintiff stated that selling the farm upset him. The plaintiff helped around the farm doing odd jobs and was upset driving past the area that had been sold. He was under doctor's care for nerves and believed he had a nervous breakdown in 1996. He sees a psychiatric nurse periodically and is taking medication for depression.

631. Two doctors gave evidence, to which I will refer later.

634. In June 1996, the plaintiff made application to the Rural Finance Corporation for re-establishment assistance and on 27 November 1996, was informed that his application had been successful. The advance of $45,000 was approved under the Rural Adjustment Scheme and was paid on the following basis -

"The assistance is made available to help with your future outside of farming and in this regard the funds are not to be used to purchase farming assets."

638. The evidence revealed that he provided the money to the Burbibyong Trust for farming. He and his wife still reside on the home paddock and the Trust conducts a farming business. Whether or not the home paddock is still leased is uncertain.

641. The plaintiff has had a variety of jobs since 1997, working as a labourer, dozer driver and the like. In August this year, he lost his job and is now unemployed and receiving unemployment benefits. He states that he wants to get a job.

644. I am satisfied on the evidence that over all his working life, the plaintiff has been a hard working, industrious worker and I have no doubt that he wants to get a job. He feels depressed and unhappy and is very upset about losing his farm. He is doing a variety of jobs around the house. However, whether his depression is due to the dog problems is a moot point. In the years since July 1990, the plaintiff has been involved in a series of events which brought with them annoyance, distress, upset and frustration, factors which can lead to depression. I will discuss the issue hereafter.

647. It will be necessary to further consider the facts in relation to specific issues.

650. The question of the number of sheep that were actually killed and maimed as a result of dog attacks is a difficult one. Despite the Court making the observation from day one of the trial that it would be better to produce records to establish various matters, rather than rely upon the vagaries of memories of the plaintiff and his wife and others, the records, in the main, have not been produced. The usual response was that records were given to lawyers over the years, and are now unavailable.

653. A well managed farm business keeps records and a diary, and, in particular, stock and wool records. They are essential in order to prepare the financial accounts for tax returns each year. Those who conduct business operations with minimal records, and who destroy records, can hardly complain if, at a later stage, the fact finding tribunal is not prepared to accept vague evidence based upon an unreliable memory, especially when the memory is that of a witness whose general credibility is of little substance. The plaintiff can hardly complain if the Court does not accept parts of his evidence.

656. Very few records have been produced showing numbers of stock, purchase and sales of stock, and the likely number of sheep killed or maimed during dog attacks.

659. I accept that over a period of many years, the plaintiff did lose sheep due to marauding wild dogs. The numbers of sheep killed is a difficult question and I will have to further consider it on the question of damages.

662. Much time was spent at trial by the plaintiff's legal team attempting to identify the employees or agents of the State who were responsible for the protection and management of the Reference Area. It is unfortunate that insufficient consideration was given to the question, before the trial commenced, by the plaintiff's advisers, with a result that much of the cross-examination of the State's witnesses was fishing, and much time was spent by the plaintiff's legal team demanding more and more documents and perusing same in order to determine who had control.

665. In an answer to an interrogatory, the State admitted that it was in possession of the Reference Area and that it was under its occupation, management and control. However, that answer does not, in itself, establish whether an employee or agent of the State had the necessary management and control of the Reference Area. But it does provide some supporting evidence.

668. I find that there were employees of the Department who were responsible for the management, protection and control of the Reference Area. The Management Plan entrusted the administration of the area to the Department itself. After the proclamation in 1983, I find that Mr Holmes, who was then stationed at Wodonga, and Mr Geoff Ross and Mr Les Barton, who were senior personnel employed at the Corryong office, had the necessary authority and responsibility to protect and manage the Reference Areas. Messrs Ross and Barton remained in their jobs right through to 1992, when Mr Barton retired. A Mrs Bailey, who joined the Corryong office in 1987 and initially assisted Mr Barton, took over his position in 1992. Mr Holmes ceased to be responsible in about early 1985, and Mr Bernie Evans, who was not called as a witness, took over his position. Mr Robert Patrick, an Assistant Regional Manager in 1987, had responsibilities in respect of the Reference Area and thereafter, was responsible for those employees who had duties with respect to the Reference Area. They were Messrs Ross and Barton and later, Mrs Bailey, from 1992. Mr Moodie, who, in 1993, commenced the duties of the Catchment Co-ordinator at Wodonga, also had an advisory position in relation to the area. In addition, Mr Mike Gardiner also had some degree of authority and responsibility in respect to the area. He had responsibilities after 1987.

671. I find that from 1982 through to July 1990, the employees of the Department in Corryong and Messrs Holmes, David Buntine, Mike Gardiner, and Robin Patrick at Wodonga, and in 1993 and following, Mr Moodie, all had knowledge that the plaintiff's land was being attacked from time to time by dogs, that there was a real possibility that the dogs were coming from the Reference Area, and that it was the view of Mr Stockwell, the plaintiff, that the dogs were coming from that area. I am satisfied that all those persons had the necessary authority to take steps to seek to eradicate the wild dogs in the Reference Area. The Management Plan and the Act recognised that it would be necessary for management personnel to go into the area, from time to time, to properly manage it. Two areas of management were blackberry control and wild dog control. I find that if any of the said persons wished to do so, he or she could have put in place a programme aimed at eradicating the wild dogs in the Reference Area. This could have been done by poisoning in the area itself, and by the use of snares within the area and not just on the border with the buffer zone. Further, the use of steel jaw traps which, although being phased out, could be used with permission. The senior personnel could have taken steps to provide materials to provide a complete electric fence. Mr Holmes, during the period that he was in charge in 1983, took steps to arrange for materials to be supplied, and although this was not in accordance with any government scheme or policy, was clearly available, if pressed.

674. It was said by a number of witnesses that they treated the Reference Area no differently to the surrounding Crown land. In my view, there was a difference. Members of the public were not permitted to go into the Reference Area which was to be kept in a pristine, undisturbed, man-free state; a perfect haven for wild animals, including dogs.

677. I find that during the period from 1983 through to July 1990, dog control snares and traps were used on the Nariel Gap Track and Stockwell's Track, but very few snares were ever placed in the Reference Area. I accept that from time to time, doggers did go into the buffer zone and place snares in the buffer zone, but very few were placed within the Reference Area. I find that only three dogs were ever caught in the period from 1983 through to July 1990 in, or adjacent to, the area and I find that the three that were caught, which occurred in mid 1990, were caught in an area either on the boundary between the buffer zone and the Reference Area, or very slightly into the Reference Area.

680. The only other step that was ever taken to specifically meet the problem of dogs going through the Reference Area was a poison bait programme, which was performed in November 1987, some ten kilometres south of the southern end of the Reference Area. The next poison bait programmes were in 1993 and 1996 in the same area.

683. There was no evidence from any of the State's witnesses that any other steps were taken to meet the problem of wild dogs in the Reference Area.

686. Some witnesses emphasised that the attempts to control wild dogs in the Corryong area were subject to resources made available by the Department. I accept that the resources were limited. However, as Mr Patrick accepted, when budget was exceeded, although there was no guarantee that the government would meet the additional cost, generally, it did so. But I find, as a number of witnesses confirm, that the question of allocation of the budget for wild dog control in the north-eastern region was a matter of meeting the demands at the time and giving priority to the pressing demands. It was accepted that the prime object of wild dog control was to protect stock from wild dog attack. A number of witnesses confirmed that if it was thought that there was a real problem with the Reference Area, then steps could have been taken to utilise the resources to meet the problem. The fact was that it appeared that no employee of the State in the north-east region was of the view that there was a particular problem with the Reference Area and treated it like the surrounding Crown land, of which there are vast areas in the Corryong area.

689. I find that many dogs were caught during the period 1985-1995 on the Nariel Gap Track, on the western side of the area, and also, but to a lesser degree, on Stockwell's Track. The number of captures shows that there was considerable dog movement through the area during those years.

692. The Nariel Gap Track was navigable throughout the whole year using four-wheel drive vehicles. It is on a ridge on the western side of the area. Stockwell's Track, during the winter months, was impassable by vehicle and one could only pass along it on foot or on horseback. The poison bait programme involved laying baits of up to 30 over a distance of 500 metres, which took some two days. The baits were placed on a raised area of soil, which was dug over to create a soft top. The programme lasted about eight weeks. The dogman returned to the area to determine, by looking at the marks around the baits, what types of animals had visited the area. In addition to wild dogs, there were wild pigs, rodents and foxes. Mrs Bailey, who was responsible for programmes after 1992, stated that it was impossible to say how successful a programme had been, because it was rare to find any dead dog within the area of the poison baits. She stated that she could make a decision to put in place a poison bait programme, and that if she had any doubt, she could consult her superior. However, she took the view that unless there was any opposition, she could make the decision herself. She in fact did implement poison bait programmes in 1993, 1995 and 1996.

695. The evidence revealed, and I accept it, that the only things dogs fear are humans. They do not appear to fear anything else. They avoid humans. They are intelligent, learn from experience and, no doubt, would frequent an area where there are no humans.

698. Entry to the Reference Area was prohibited to members of the public. This prohibition did not apply to other Crown land in the area. The Reference Area was not open to the public and was rarely visited by humans. The absence of humans meant that the area was a safe haven for animals.

702. The plaintiff has relied upon three discrete causes of action. They are private nuisance, common law negligence, and breach of statutory duty.

705. There is a degree of overlap in relation to each cause of action. However, proof of each cause of action is established by different elements and have to be considered separately.

708. The question - "What is a nuisance?" is difficult to answer with any degree of certainty. In Sedleigh-Denfield v O'Callaghan [1940] UKHL 2; (1940) AC 880, Lord Wright, at p.903, said -

"The forms which nuisance may take are protean. Certain classifications are possible, but many reported cases are no more than illustrations of particular matters of fact which have held to be nuisances."

712. In his classic article "The Boundaries of Nuisance", (1949) 65 LQR 480 at 489, Professor Newark said -

"(1) The term 'nuisance' is properly applied only to such actionable user of land as interferes with the enjoyment by the plaintiff of rights in land."

716. Quoted with approval by Lord Goff in Hunter v Canary Wharf (1997) AC 655 at 687-8.

719. As the learned author went on to say, normally, interference with enjoyment must have some degree of permanence. That which is temporary, usually is not a nuisance. But he went on to express an exception in these terms -

"But an exception is recognised in those cases where the defendant has accumulated on his land something likely to do damage if it escapes."

723. There is a line of cases where a land owner has permitted an activity on his land which has caused interference to the enjoyment by the plaintiff of his rights in land, because the activity has resulted in an intrusion onto the land, and the land owner has been held liable. Usually, the victim is a next door neighbour.

726. The plaintiff alleges that the defendant State, as owner and occupier of the Reference Area and/or surrounding Crown land, permitted wild dogs to occupy the said areas and permitted them to leave the areas, move onto his top paddocks and kill or severely injure his property, namely, his sheep. The alleged nuisance has its genesis in wild dogs moving onto land owned and occupied by the State, without any human intervention, and the wild dogs which are not owned, controlled or managed by the State or its employees, move onto the plaintiff's property and cause a nuisance. In those circumstances, the question is why should the State, as owner and occupier of the surrounding land, be under any obligation to protect the plaintiff's property rather than the plaintiff protecting his own personal interests against the intrusion of the marauding dogs, which cause him damage?

729. The old law did not oblige the land owner on whose land the problem arose from, what might be described as, natural causes to do anything, but the modern law has recognised such an obligation upon the land owner, in certain circumstances.

732. The modern law can be traced from Sedleigh-Denfield v O'Callaghan, supra, Goldman v Hargrave [1966] UKPCHCA 2; (1966) 115 CLR 458, in the Privy Council[1966] UKPC 2; , [1967] 1 AC 645 and Leakey v National Trust for Places of Historic Interest [1979] EWCA Civ 5; (1980) QB 485. All these cases recognised a liability in a land owner for damage caused to an adjoining land owner by reason of things which occurred on his land, even though they occurred as a result of natural causes or the actions of a trespasser. In the Sedleigh-Denfield case, water escaped onto the plaintiff's land from the defendant's land because a trespasser had installed a pipe, and the occupier was held liable for failing to take reasonable means to eradicate the nuisance, after he had knowledge of its existence. The House of Lords held that the knowledge of a responsible servant was the knowledge of the occupier.

735. In the Goldman case, a gum tree was set on fire during a storm and the occupier took some steps to extinguish the fire, but they were inadequate. The fire was whipped up by the weather and travelled across to the adjoining land owner, who suffered damage. The High Court and the Privy Council held the occupier liable.

738. In Leakey's case, the defendant's land had a large mound of soil and rubble on it, and over the years, soil and rubble fell onto the plaintiff's land due to natural weathering and the nature of the soil. The defendant was well aware of the instability of the land. After the dry summer of 1976, a crack opened up in the mound. The defendant refused to do anything about it, and some weeks later a large quantity of earth and tree stumps fell on the plaintiff's land. It was the contention of the defendant that because it was not responsible for the mound and secondly, the natural movement of the land was the cause of the fall of soil, it was not liable. The Court of Appeal held that it was.

741. The principles established in those cases have been applied in a number of cases in England since 1980.

744. The modern law can be summarised as follows. Where a nuisance has been created by the actions or omissions of a trespasser, or by some other means, without the actions, omissions, authority or permission of the occupier of land, the occupier is liable if he has knowledge or ought to know of the existence of the nuisance, it is foreseeable that damage could occur, and he fails to comply with a measured duty of care to abate the nuisance.

747. In Goldman's case in the Privy Council, the Judicial Committee held that there was a general duty of care upon occupiers in relation to hazards occurring on their land, whether natural or man made. Lord Wilberforce, at p.662, described the duty as "a measured duty of care by occupiers to remove or reduce hazards to their neighbours".

750. However, the duty is different to the normal duty of care which rests upon a person to take reasonable care in the particular circumstances. This measured duty of care takes into account the resources of the land owner, the gravity of the nuisance, and the ability of the land owner to eradicate it.

753. Lord Wilberforce, at p.663, described the scope of the duty. In the later case of Leakey, McGaw J dealt with the scope of the duty.

756. In my opinion, the plaintiff, in order to prove his case in nuisance against the State, has to establish the following elements -

(i) That the plaintiff is a person in actual possession of the land affected, either as a freeholder or tenant of the land in question or as a licensee with exclusive possession of the land. - see Hunter v Canary Wharf Ltd, supra, at p.688.

760. The plaintiff was, at all relevant times, the registered proprietor of the top paddocks, and has the necessary interest in the property to bring this proceeding. No argument was addressed to the contrary.

(ii) That the activity which causes the damage to the plaintiff's enjoyment of his land, is a nuisance, i.e. interferes with the enjoyment of his rights in his land.

(iii) That the activity which constitutes the nuisance by the defendant occupier was created by the defendant occupier or was created by the actions or omissions of another or by natural causes and with knowledge of its existence or circumstances where he ought to have known of its existence, suffers the nuisance to continue.

766. In Sedleigh-Denfield v O'Callaghan, supra, the defendant's servant was aware of the existence of the trap and the defendant occupier was held liable for failing to take reasonable steps to stop the nuisance escaping to the next door neighbour, despite the fact that the nuisance was created by the actions of a trespasser, for which the occupier would not be vicariously liable. In Goldman v Hargreave [1966] UKPC 2; (1967) 1 AC 645, the principle was extended to a hazard caused on the defendant's land by the operation of nature. There is no difference in principle between the creation of a nuisance by first, the occupier, secondly, a trespasser, or thirdly, the forces of nature, if the defendant knew or ought to have known of the existence of the nuisance.

(iv) Once a defendant occupier knows or is presumed to know of the hazards on his land and if as a reasonable man he could foresee that the defect or condition if not remedied may cause damage to his neighbour's land, a measured duty of care arises.

772. As I have said, the concept of the "measured duty of care" was stated by Lord Wilberforce in Goldman's case, who described it as follows -

"So far it has been possible to consider the existence of a duty, in general terms. But the matter cannot be left there without some definition of the scope of his duty. How far does it go? What is the standard of the effort required? What is the position as regards expenditure? It is not enough to say merely that these must be reasonable, since what is reasonable to one man may be very unreasonable, and indeed ruinous, to another: the law must take account of the fact that the occupier on whom the duty is cast has, ex hypothesi, had this hazard thrust upon him through no seeking or fault of his own. ... One may say in general terms that the existence of a duty must be based upon knowledge of the hazard, ability to foresee the consequences of not checking or removing it, and the ability to abate it." (p.663) (Emphasis added).

776. In Leakey v National Trust for Places of Historic Interest, supra, Megaw LJ, after considering the authorities, said, concerning the scope of the duty, at p.524 -

"The duty is the duty to do that which is reasonable in all the circumstances, and no more than that, if anything, is reasonable, to prevent or minimise the known risk of damage or injury to one's neighbour or to his property. The considerations with which the law is familiar are all to be taken into account in deciding whether there has been a breach of duty, and if so, what that breach is, and whether it is causative of the damage in respect of which the claim is made. Thus, there will fall to be considered the extent of the risk; what, so far as reasonable can be foreseen, are the chances that anything untoward will happen or that any damage will be caused? What is to be foreseen as to the possible extent of the damage if the risk becomes a reality? Is it practicable to prevent, or to minimise, the happening of any damage? If it is practical, how simple or how difficult are the measures which could be taken, how much and how lengthy work do they involve, and what is a probable cost of such works? Was there sufficient time for preventative action to have been taken, by persons acting reasonably in relation to the known risk, between the time when it became known to, or should have been realised by, the defendant, and the time when the damage occurred? Factors such as these, so far as they apply in a particular case, fall to be weighed in deciding whether the defendant's duty of care requires, or required him, to do anything, and if so, what."

780. It is clear from what his Lordship said that there are a number of factors that need to be taken into account.

783. The relevant considerations stated by both Lord Wilberforce and Megaw LJ are not an exhaustive list of relevant considerations. Nevertheless, they give a good guide to determining what the measured duty of care demanded in the circumstances.

(v) That the plaintiff suffered damage as a result of the nuisance.

(vi) That the failure to prevent or minimise the nuisance, was a cause of the plaintiff's injury or damage.

(vii) That an employee, agent or independent contractor of the State, acting in the course and scope of his employment or engagement, was guilty of the wrongdoing, and if sued personally by the plaintiff would have been liable.

789. This added element comes about because the plaintiff is suing the Crown.

792. The modern law of nuisance in cases where the defendant does not create the nuisance is very similar to the modern law of negligence. Indeed, many cases of nuisance also involve liability in common law negligence. In Goldman's case, two of the judges in the High Court found against the defendant occupier in nuisance and negligence, Windeyer J held the defendant liable in negligence, and the Privy Council decided the case in negligence but made it quite clear that the case could also have been decided in nuisance. At p.656, Lord Wilberforce said -

"As this board has recently explained in the Wagon Mound No. 2, the tort of nuisance, uncertain in its boundary, may comprise a wide variety of situations, in some of which negligence plays no part, in others of which it is decisive. The present case is one where liability, if it exists, rests upon negligence and nothing else; whether it falls within or overlaps the boundaries of nuisance is a question of classification which need not here be resolved."

796. I also refer to the discussion in the Law of Torts in Australia, 3rd ed by Trindade and Cane at p.650 et seq.

799. The plaintiff's second cause of action is common law negligence. It is necessary for the plaintiff to prove -

(i) That a servant, agent or independent contractor employed or engaged by the State owed him a duty of care;

(ii) that the person that owed him a duty of care breached the duty and was negligent;

(iii) That the plaintiff suffered damage as a result of the negligence;

(iv) that the negligence was a cause of the damage suffered by the plaintiff.

805. The third cause of action is breach of a statutory duty. According to the amended statement of claim, the duty is alleged to have arisen under s.6 of the Vermin and Noxious Weeds Act 1958. In order to establish a cause of action against a defendant for breach of a statutory duty, the plaintiff has to establish -

(i) That a statutory instrument imposed a duty of care on the defendant;

(ii) that the statutory duty of care was owed to the plaintiff;

(iii) that the defendant breached the statutory duty;

(iv) that a breach of the statutory duty gave a right to the plaintiff to recover damages in a civil proceeding;

(v) that the breach of the statutory duty was a cause of the damage suffered by the plaintiff;

(vi) that the duty rested upon an employee, agent or independent contractor of the Crown who breached it.

811. Whether or not the statute gave a civil cause of action to a person suffering damage as a result of a breach of a statutory duty, is a question of construction.

814. It is important not to confuse the question whether a statute does give a private cause of action with the failure to comply with a statutory provision, as evidence of negligence. In O'Connor v S.P. Bray Ltd [1937] HCA 18; (1937) 56 CLR 464, Dixon J, at p.477, said -

"It is a question of some difficulty whether a civil remedy is given to a person injured in consequence of the breach of that clause. Such a person may, of course, maintain an action of negligence and rely upon the failure to comply with the statutory regulations as evidence of negligence. But it is a different question where the enactment itself confers a distinct cause of action. The received doctrine is that when a statute prescribes in the interest of the safety of members of the public or a class of them a course of conduct and does no more than penalise a breach of its provisions, the question whether a private right of action also arises must be determined as a matter of construction. The difficulty is that in such a case the legislature has in fact expressed no intention upon the subject, and an interpretation of the statute, according to the ordinary canons of construction, will rarely yield a necessary implication positively giving a civil remedy."

818. In personal injury cases, the courts have found that where the statute prescribes, in the interest of safety of members of the public or a class of them, a particular course of conduct and does no more than penalise the breach of its provisions, then usually the courts will infer that it was the legislative intention that a breach of the statutory duty gave a private right of action - see O'Connor v S.P. Bray Ltd, supra, at p.478; Sovar v Henry Lane Pty Ltd [1967] HCA 31; (1967) 116 CLR 397 at 405-407. But this case is not concerned with personal injury arising out of a breach of a duty imposed by a statute to protect the bodily integrity of a worker.

821. In Sovar v Henry Lane Pty Ltd, Kitto J, at p.405, summarised the principles to apply to determine whether there is a private course of action, when he said -

"The legitimate endeavour of the courts is to determine what inference really arises, on a balance of considerations, from the nature scope and terms of the statute, including the nature of the evil against which it is directed, and the nature of the conduct prescribed, the pre-existing state of the law, and, generally the whole range of circumstances relevant upon a question of statutory interpretation ... It is not a question of the actual intention of the legislators, but of a proper inference to be perceived upon a consideration of the document in the light of all its surrounding circumstances."

825. More recently, the principles were summarised by the House of Lords in X (Minors) v Bedfordshire C.C. [1995] UKHL 9; (1995) 2 AC 633 at 731, where Lord Browne-Wilkinson said -

"The basic proposition is that in the ordinary case a breach of statutory duty does not, by itself, give rise to any private law cause of action. However a private law cause of action will arise if it can be shown, as a matter of construction of the statute, that the statutory duty was imposed for the protection of a limited class of the public and that Parliament intended to confer on members of that class a private right of action for breach of the duty. There is no general rule by reference to which can be decided whether a statute does create such a right of action but there are a number of indicators. If the statute provides no other remedy for its breach and the Parliamentary intention to protect a limited class is shown, that indicates that there may be a private right of action since otherwise there is no method of securing the protection the statute was intended to confer. If the statute does provide some other means of enforcing the duty that will normally indicate that the statutory right was intended to be enforced only by those means and not by private right of actions. ... However the mere existence of some other statutory remedy is not necessarily decisive. It is still possible to show that on the true construction of the statute the protected class was intended by Parliament to have a private remedy. Thus the specific duties imposed on employers in relation to factory premises are enforceable by an action for damages, notwithstanding the imposition and by the statutes or criminal penalties for any breach."

829. The fact that the legislation is passed for the benefit of the public in general, as distinct from the benefit of certain individuals or classes of individuals, is a cogent factor against the finding of a private cause of action. See ibid at pp.731-2.

832. Difficulties arise in relation to suing the Crown. A statutory duty may rest upon the Crown but this will not make the Crown liable. It is still necessary to establish that the servant, agent or independent contract or the Crown is subject to the statutory duty. See Lyver v State of Victoria [1983] VicRp 107; (1983) 2 VR 475.

835. The State submitted that even if there was a statutory duty imposed by the Act, the breach of which gave a private cause of action to the plaintiff, it would be necessary for the plaintiff to prove that a servant, agent or independent contractor of the Crown was subject to the statutory duty, and if he established that, the Crown was not vicariously liable for the breach of that statutory duty. Counsel referred to the High Court decision of Darling Island Stevedoring and Lighterage Co Ltd v Long [1957] HCA 26; (1957) 97 CLR 36. In that case, the defendant employed a person who was in charge of loading and unloading ships. A regulation imposed a duty on that person and it was alleged that a breach by that person, causing injury to the plaintiff, entitled the plaintiff to sue his employer. It was held that the employer was not liable because the statutory obligation was cast solely upon the employee and not upon the employer. Hence, it was held that the employer was not responsible for the liability of the employee in those circumstances. The decision has been subjected to criticism but has not been overruled - see The Law of Torts by Dr Fleming, 9th ed., at p.567.

838. In my opinion, the principle does not apply in the present case, because the statutory duty clearly rests upon the Crown and a Minister of the Crown - see ss.3(3) and 6(1) of the Act - and in order for the Crown and the Minister to perform their duties, their duties must be performed by employees, agents and independent contractors of the Crown. This is different to the situation in the Darling Island case where the duty was imposed solely upon the employee. Hence, if there was a statutory duty, the breach of which gave the plaintiff a personal cause of action, in my opinion, the principles established in the Darling Island case would not stand in the way of the plaintiff. Compare observations made in Lyver v State of Victoria, supra, at p.483.

841. In considering each cause of action, it is important to steadily bear in mind that the plaintiff is suing the State of Victoria. The liability of the Crown is not the same as between subject and subject, and the Crown is only liable if a servant, agent or independent contractor would be liable, if sued, and then only if the servant, agent or independent contractor was acting in the course and scope of his employment or engagement when the wrongdoing occurred, which caused damage to the plaintiff.

845. When the First Fleet arrived in 1788, there were wild dogs throughout Australia. They were dingos. It is said that they are not native to Australia. They came to this country some 4,000 years ago from South East Asia. But for present purposes, they can be considered to be native animals of Australia. Today, it is said that there are few pure strains of dingos in mainland Australia. Over the last 200 years, dingos have mated with domestic dogs and today, in north-eastern Victoria, most of the wild dogs are cross-breeds. The wild dogs in north-east Victoria are descendants of the original dingos and they and the feral dogs, for present purposes, can be treated as native dogs. There is no doubt that they are wild, violent and aggressive, and represent a danger to other animals and, in certain circumstances, human beings.

848. Dr Corbett, an expert on dingos, gave evidence as to their habits.

851. He stated, and I accept his evidence, that wild dogs, being pure dingos, feral domestic dogs and their hybrids, have been relatively common in the Corryong District since at least the 1960s, despite the type and intensity of control methods, and are found in areas adjacent to livestock holdings and mountainous Crown land. Livestock predation, particularly of sheep, has been regularly reported over the last five decades and attacks are likely to occur in all months of the year. In the present case, the evidence showed that attacks were more likely in the winter months rather than in other months of the year. The plaintiff gave evidence, which I accept, that in the winter months, with snow on the high areas, native animals move down the mountains and the wild dogs follow them for food.

854. Dr Corbett said, and I accept the evidence, that some dogs cause more damage than others, some chase sheep without attacking them, others avoid the ewes and chase and attack the lambs, and that on occasions, when wild dogs kill sheep, they sometimes do not eat the carcass. On those occasions, the attack is sport rather than catching food. Such indiscriminate killing is a source of distress and frustration.

857. Wild dogs use spurs and trails as their thoroughfare for movement and that there are spurs and trails throughout the extensive areas of Crown land in the Corryong area.

860. Wild dogs prey predominantly on sheep but they have been known to attack cattle and goats, and especially calves.

863. Dr Corbett referred to a study which took place in Kosciusko National Park to determine wild dog movements, and based upon the results of that research, which he accepted, he was of the opinion that the Burbibyong Reference Area, which is 1,300 hectares or 13km2, could hold up to seven wild dogs at any one time.

866. It is clear that wild dogs are predators and live on native animals. Dr Corbett referred to and adopted a study which showed that the major diet items of wild dogs in south-eastern Australia are wallaby and wombat, and that sheep constituted only about 1.4%, and cattle about 0.7%, of their overall diet. Putting aside disease and dying from starvation, the only real threat to wild dogs is man. The dogs are intelligent and seek to avoid man. They learn from the lesson of coming into contact with an electrified fence. However, if an area is relatively dense and watered, but not visited by man, the probabilities are that the dogs will use that area for shelter and rest. I accept the evidence of Dr Corbett when he says -

"Unless killed or harassed by fairly intensive and regular control effort, wild dogs will stay in, or regularly return to a favoured or profitable hunting area. Hence it must follow that if an area is undisturbed by the presence of man then wild dogs would find the area a safe haven and reside there or use the area as a means of getting to another area."

870. I have discussed the purpose of a Reference Area. It is to be left in its pristine state, not traversed by humans, and left as a point of reference to compare with areas that have been managed and developed by humans.

873. I accept Dr Corbett's evidence that wild dogs are part of the wild fauna found in the Australian forests and bushland. By feeding on wallabies, wombats and other animals, the dingo performs an important role in the natural environment. If one was to eradicate the wild dog, this may affect the balance. Indeed, it was only some 30 or 40 years ago that the cuddly wombat was considered vermin and was killed as a pest. However, as Dr Corbett said, and I accept his evidence, to permit a safe haven within a bush area is to encourage the presence of wild dogs, which may upset the balance in any event, and accordingly, what has been practised for many, many years, namely, dog control, does not represent an inconsistent stand with the purpose of reference areas.

876. The purpose of the Reference Area is not compromised or destroyed by proper management, which included intensive dog control.

879. In Victoria, dingos are offered some protection within the lands administered under the National Parks Act 1975. However, they are declared vermin, as are all wild dogs, under the Vermin and Noxious Weeds Act 1958. That Act was repealed in 1994 and wild dogs are now dealt with under the Catchment and Land Protection Act 1994. This Act came into operation on 15 December 1994. Both Acts apply to the Crown. Under the terms of the old Act, land holders, including a Minister of the Crown, had an obligation to control wild dogs on land owned or occupied by them. It will be necessary to consider the provisions of the old Act hereafter.

882. Dingos, their hybrids and feral dogs have been declared vermin in this State since at least 1973 until 15 December 1994. They are now dealt with under the new Act.

885. Dr Corbett referred to the figures showing the wild dogs captured in the Corryong District 1961-1994. These figures showed that there were periods when the dogmen responsible for capturing wild dogs, caught more than the average, and then in later years, caught less. Dr Corbett was of the opinion that relatively high numbers of wild dogs have existed in the Corryong District since at least the 1960s, despite the type and intensity of control methods, and whether or not control was focussed adjacent to livestock holdings or further into the mountainous Crown land areas.

888. It is well accepted that the greatest threat of wild dog attack comes from those areas immediately adjacent to wild dog refuge areas. Hence, the current approach is to focus on the objective of minimising the impact of predation on livestock.

891. It is suggested that the best method is to have a large buffer zone and Dr Corbett said it should be approximately one or two wild dog home ranges wide, which, he said, for the Corryong District, should be something in the order of 12 to 20 kilometres. The idea is that in those zones, the area will be relatively dog free and hence, control measures should be used within that buffer zone. If there is a substantial area between the possible wild dog home and the grazing land, then the probabilities are high that the dogs will not move into the grazing area. Dr Corbett noted that research in Western Australia found that the predation of livestock was reduced or eliminated for two or more years after substantial buffer zones were established. However, as he points out, the position in Western Australia is different to Eastern Australia.

894. It follows that if one carries Dr Corbett's views to their logical conclusion, the Burbibyong Reference Area should not have been established where it was. Its north-south length is something in the order of seven kilometres and the buffer zone was only 200 metres wide. But having that situation, greater care would be required to keep the dogs an appropriate distance from grazing lands.

897. I find that no wild dog control schemes will ensure no dog attacks on sheep. But reasonable steps can be taken to minimise the risk. The Vermin and Noxious Weeds Act required these steps to be taken.

901. The plaintiff took over his father's farm in December 1981. From that time onwards, the plaintiff ran sheep on the total property and within two years, had a flock totalling some 1,100 sheep. Prior to taking over on the night of 31 July 1981, some 18 sheep were killed as a result of a dog attack. The first substantial dog attack occurred in the winter of 1982, when some 30 to 40 sheep were killed, and another attack occurred where 20 to 30 were killed. Thereafter, a number of sheep were killed each year. He made a decision in July 1990 to cease sheep farming and over the next 12 months, removed his sheep from the top paddocks and disposed of most of them.

904. The plaintiff issued his proceedings on 27 July 1995. The statement of claim, in anticipation of a possible limitation defence, claimed compensation as from 1 July 1989. By that date, a number of things had occurred. The plaintiff's farming business had been subjected each year to attacks by marauding dogs on his sheep, and in some years, he suffered substantial losses. Secondly, by 1 July 1989, the value of the paddocks adjoining the Burbibyong Reference Area would have been affected by the dog attacks. Thirdly, the plaintiff was suffering annoyance, distress and nervous upset. He was not suffering depression. Fourthly, the plaintiff's financial position was deteriorating under the load of substantial borrowings from banks, debts and a large annual interest bill. All these matters had arisen by 1 July 1989.

907. During 1999, application was made by the plaintiff to amend his statement of claim to allege causes of action arising prior to 1 July 1989, and to such damages in respect to those causes of action. The Master refused the amendment on the ground that to allow the amendment would defeat a limitation defence.

910. It follows that the plaintiff must establish a cause, or causes, of action which accrued on or after 1 July 1989. If he does so, he is entitled to recover damages. Each of his causes of action are not complete unless he proves that he suffered damage.

913. Each of his causes of action are continuous, and each time he suffered a dog attack causing him loss, assuming he could prove his claims, a cause of action accrued. However, it must be emphasised that he is not entitled to recover damages for any losses which occurred prior to 1 July 1989, and, more importantly, is not entitled to rely upon losses which occurred prior to that date which had the effect of putting his financial position in a particularly vulnerable state. Arguably, the State's conduct, as a fact, may have been a cause of his financial state, but the defendant is not liable in law for those damages. It must follow that the State cannot be liable for the state of his financial position on 1 July 1989. This is so even though, as a fact, one can trace some of his financial predicament, as at 1 July 1989, to the extraordinary stock losses he suffered over the previous seven or eight years. The same may be said in relation to the value of the land and his claim for personal injuries.

916. It is important to bear these matters in mind when considering the question of damages, if the plaintiff establishes any cause of action against the defendant State. Unfortunately, in preparing the expert, Mr Pickett, who was called on behalf of the plaintiff, these matters were not appreciated and Mr Pickett has relied upon the events prior to 1 July 1989 as a basis for calculating compensation due to stock losses.

920. The Vermin and Noxious Weeds Act 1958 was repealed as from 16 December 1994 by the Catchment and Land Protection Act 1994.

923. Under s.6(1) of the Vermin and Noxious Weeds Act 1958, the Minister of Lands, later Minister for Conservation, Forests and Lands, was under a duty "to take reasonable action to destroy and suppress all vermin and noxious weeds on and to keep clear and free of all vermin and noxious weeds" in respect to unalienated lands of the Crown. The obligation also extended to any parks within the meaning of the National Parks Act 1975, or lands managed or controlled by the Director of National Parks.

926. By reason of s.6(2) in respect to all other lands, it is the duty "of the owner and of the occupier of any such land to take such sufficient reasonable action to destroy and suppress all vermin and noxious weeds on such land and to keep such land clear and free of vermin and noxious weeds."

929. The obligations on the Minister and the owner and occupiers of any land was subject to the Act.

932. The Governor-in-Council is empowered by s.3(2) to proclaim, inter alia, any animal to be vermin for the purposes of the Act.

935. On 17 July 1973, the Governor-in-Council proclaimed "dingos, wild dogs, dogs run wild ... to be vermin throughout the State of Victoria for the purposes of the Act." On 11 December 1979, the Governor-in-Council substituted for the expression "dingos, wild dogs" the expression "dingos and their hybrids (except for recognised canine breeds such as the Australian Cattle Dog, Queensland Heeler) and the Australian Kelpie, feral dogs" in the proclamation.

938. It is clear that dingos, their hybrids and wild dogs were, at all relevant times, vermin within the State of Victoria.

941. According to s.3(3) of the Act, the Act "shall bind the Crown".

944. There is a presumption that the Crown is not bound by statute. See Province of Bombay v Bombay Municipal Corporation (1947) AC 58 at 61. In certain circumstances, the Crown may be bound by a statute by necessary implication. That is a question of construction. However, a statute does bind the Crown if the Crown is expressly named therein. Clearly, the Vermin and Noxious Weeds Act does apply to the Crown and also applied to the Minister.

947. However, in considering the application of the Act in the present proceeding, it could only be relevant in the present proceeding if a servant, agent or independent contractor of the Crown was relevantly bound by the Act.

950. It is clear that because the Act binds the Crown, it would apply to all servants, agents and independent contractors of the Crown, when performing duties for the Crown, in the course of their employment or engagement in respect of vermin control. But whether or not any such person would have any liability to the plaintiff is another question.

953. In considering the liability of the State in the present case, it will be necessary to consider what body or person occupied or had any power or control over the Burbibyong Reference Area and the obligations that rested upon such person or body.

957. The issue of who or what body was in occupation, control of or managing the Reference Area between 1983 to July 1990, is fundamental to the three causes of action pleaded by the plaintiff.

960. The plaintiff claims that a servant, agent or independent contractor of the State was responsible for the commission of a private nuisance on his farming property on and after 1 July 1989.

963. The plaintiff was, on 1 July 1989, until mid July 1996, the registered proprietor, owner and occupier of the top paddocks. He also owned the paddocks on either side of the pine plantation, and the home block. At all relevant times, the plaintiff had a right to those properties.

966. During the period from 1 July 1989 to 30 June 1990, wild dogs came onto the top paddocks, and on one occasion, onto the home paddock, where the plaintiff grazed sheep, and killed, injured and maimed a number of sheep. The plaintiff had suffered dog attacks on his sheep in the top paddocks each financial year from 1 July 1981 to 30 June 1989.

969. At the beginning of the calendar year 1989, the attacks occurred in the summer months and continued throughout the year, happening about twice per month. The attacks got worse during the winter months of May through to July. Save for one attack on the sheep in the home paddock, all attacks occurred in the top paddocks.

972. The number of sheep actually lost in the financial year from 1 July 1989 to 30 June 1990 was, according to the plaintiff's tax returns, 200. The plaintiff stated that he gave the correct figures to his accountant. However, he did accept that there would be deaths due to other causes and he estimated the deaths due to other causes at 12 i.e. one per month. I think the figure was higher based on the evidence of a number of other witnesses. This is relevant to the issue of damages.

975. The evidence established that the plaintiff's sheep were regularly attacked by wild dogs and that as a result, some of the sheep were killed or injured during the financial year 1 July 1989 to 30 June 1990. Further, a substantial number of sheep were killed in July 1990. After that date, the plaintiff commenced to sell and move his sheep and did not suffer any further attacks on his sheep.

978. I am satisfied that the wild dogs coming onto the plaintiff's property and killing and injuring his stock constituted an interference with the plaintiff's enjoyment of the rights in his land. I am also satisfied that the interference to his rights was substantial. These attacks constituted a nuisance.

981. This brings me to the issues of who was responsible for the interference with the plaintiff's enjoyment of the rights in his land and whether that person or body was at fault.

984. The State submitted that neither it nor any person or body acting for or performing services for it was responsible for the wild dogs' movements through the Reference Area or Crown land, that the wild dogs were not owned, possessed or controlled by the Crown, its employees and agents, and that it could not be held liable for the actions of the dogs. The dogs were wild, animals ferae naturae, that did as they pleased, and employees of the State could not be held liable for their actions.

987. The plaintiff's top paddocks adjoin the Reference Area on the southern boundary, and on the eastern and western sides of the top paddocks are Crown lands. As at 1 July 1989, installed on the southern boundary was approximately 1,365 metres of electrified fence. As at that date, there was no obstruction to wild dogs entering the top paddocks on the southern side by going around the end of the electrified fence, or coming in on the eastern side where there was no fence. The western boundary evidently had a cattle fence but again, it would not be difficult for wild dogs to come in from the Crown land on the west by going around the edge of the cattle fence or indeed, getting through it.

990. I accept the plaintiff's evidence that he heard howling of dogs coming from the Reference Area during 1982 to July 1990 and also found dog hair and droppings around the wires and on the wires of the electric fence. The evidence leads to the conclusion that the dogs did come from the Reference Area, but the evidence did not exclude the possibility of some of the dogs coming from the surrounding Crown land.

993. The Crown land and the land comprised in the Reference Area were owned and occupied by the Crown in the right of the State of Victoria. However, the plaintiff has to prove control by an employee of the Crown.

996. The wild dogs are animals ferae naturae, dangerous, vicious and aggressive, and are not owned or controlled by anyone. Most of the dogs involved in the attacks were dingos or dingo hybrids. A dingo is a wild animal. See Fischer v Stuart (1979) 37 FLR 46. At common law, any person has the right to destroy marauding dogs posing a threat to livestock - see Ramage v Evans [1948] VicLawRp 68; (1948) VLR 391. Further, as at 1 July 1989, the dingo and its hybrids and wild dogs were vermin within the meaning of the Vermin and Noxious Weeds Act 1958, and there was an obligation upon occupiers of land to take reasonable action to destroy and suppress them. There is no doubt that the plaintiff had every right to shoot any of the wild dogs that came onto his property and attacked his sheep.

999. The law over many centuries established the general rule, that if wild animals are on land of their own volition, the owner or occupier of that land is not liable if they move onto adjoining land and cause damage. That has been the law since 1597. In Boulston v Hardy 5 Co 104b[1572] EngR 50; , 77 ER 216, a land owner had made cony-burrows (i.e. rabbit burrows), the conies had increased in numbers and travelled into the adjoining land owner's property and damaged his corn. It was held that the owner of the land where the cony-burrows had been, was not liable in an action on the case because -

"So soon as the conies came on his neighbours land he may kill them, for they are ferrae naturae, and he who makes the cony-boroughs has no property in them, and he shall not be punished for the damage which the conies do in which he has no property, and which the other may lawfully kill." - 77 ER at p.217.

1003. The rationale for the decision in Boulston's case appears to lie in the fact that animals ferrae naturae belong to no person and move around at will, and it would be wrong to make a land owner liable when they move onto somebody else's land because the latter could shoot them. However, it is hard to justify the decision when the rabbits in question were encouraged to enter the first property by the actions of the land owner making the boroughs. No doubt the decision reflects the times when rabbits were an important source of meat and fur.

1006. Despite these criticism, Boulston's case was followed in 1634 in Hinsley v Wilkinson Cro Car 387, 79 ER 938. This was another case involving rabbits, where the defendant owned an area in which he maintained conies. From time to time, they ran out of the wood situated on the land, onto the common, where they ate the grass. It was held that the defendant was not liable. Again, the rationale for the decision was that no one had property in the conies, and that any person was entitled to kill them.

1009. The law stated in Boulston's case has been followed in more recent cases. In considering the principle, it must be borne in mind that rabbits were ferae naturae and did not belong to any person. The law in relation to other animals, such as pigeons and bees, has taken a different path because the cases were concerned with situations where the animals in question were owned, or in the possession or control of a person.

1012. In Brady v Warren [1900] 2 IR 632, another case concerning rabbits, Boulston's case was expressly followed. But the judgments of the Court make it clear that the defendant had not introduced the rabbits onto his land, had done nothing to preserve them and the nuisance was not serious. However, there are observations in the various judgments to suggest that the rule of non-liability may not extend to a situation where the land holder has done something which has increased the numbers of rabbits or has increased the likelihood of the rabbits doing harm elsewhere.

1015. Some 15 years earlier, in an English case, the Court was of the opinion that if a land holder collects animals upon his land, then he may be liable in nuisance to an adjoining land owner who suffers injury as a result of the animals moving onto his property.

1018. The case was Farrer v Nelson (1885) 15 QBD 258. The defendants had sporting rights over the plaintiff's farm. The defendants were in fact the landlords of the farm. The defendants' game keepers had, during 1884, reared some 1,500 pheasants, of which 450 were taken into a wood on the plaintiff's farm. Approximately 100 pheasants had gone onto the plaintiff's field adjoining the wood and eaten the crop. The plaintiff tenant recovered at first instance. Pollock B, with whom Day J agreed, said at p.260 -

"I will first deal with the question whether an action can be brought by a neighbour against any person who collects animals upon his land so as to injure the crops of the neighbour, and I should say that beyond doubt such an action would lie, and that the rule upon which it would be founded would not be so much negligence as upon an infraction of the rule 'sic utere tuo ut alienum non lidas'. (Use your own property as not to injure your neighbour's.)"

1022. This formed the basis of a claim in private nuisance.

1025. What his Lordship said was clearly obiter. This is made clear by his observation that the case was not a case "of a man collecting noxious animals upon his land so as to injure his neighbour, but the case of a man entitled to keep game upon the land, and the tenant complaining of injury to his crops from this game being unduly multiplied."

1028. But nevertheless, his Lordship did state a principle which shows that the collection of animals on a property may create a nuisance if the quantity is unreasonable and cannot be properly kept on the property. His Lordship said -

"As I understand the law each person in this country is entitled to bring on his land any quantity of game which can reasonably and properly be kept on it, so that nothing extraordinary and non-natural is done."

1032. The Court found in favour of the plaintiff because "the moment he (i.e. the defendant) brings on game to an unreasonable amount or causes it to increase to an unreasonable extent, he is doing that which is unlawful, and an action may be maintained by his neighbour for the damage which he has sustained." It is clear that the law permitted wild animals to congregate on land and not make the land holder liable for any damage done, unless he did or omitted to do something which resulted in the numbers increasing, which led to them moving and causing damage to adjoining land holders. In other words, there must be a degree of fault on the part of the land holder who, as a general rule, is not liable for the conduct of wild animals that happen to be on his property.

324 Boulston's case was cited in Farrer v Nelson but despite its authority, Pollock B held that if there was some fault on the part of the land owner with respect to animals, the adjoining land owner who suffers damage could sue.

1036. In Bland v Yates (1914) 58 SJ 612, an injunction was granted against a land holder who accumulated an unreasonable collection of manure upon his premises which attracted an excessive number of flies, which then infested the plaintiff's house. Yet in comparison, in Stearn v Prentice Bros Ltd [1919] 1 KB 394, the defendants, who manufactured manure from bones, kept on their premises a heap of bones which attracted many rats. During the years 1916 and 1917, the vermin increased to very large numbers and they moved onto the land of the neighbouring farmer and attacked his crops. The Court held that the defendants were not liable. On appeal, Bray J, who delivered the judgment of the Court, followed Boulston's case, noting that it had never been overruled or questioned, and had in fact been approved. Bray J distinguished Bland v Yates, supra, by stating that the trial judge in that case had found that there was an unusual and excessive collection of manure but stated that in the present case, there was no evidence "of anything unusual or excessive done by the defendants."

1039. I must confess that I have some difficulty accepting the reasoning in that case because the collection of bones in the circumstances attracted the rats, no steps were taken to destroy them, so that they multiplied into very large numbers, resulting in their travel to the adjoining property and causing foreseeable damage.

1042. But nevertheless, the cases do establish that if the defendant land holder does something which is unusual or unreasonable, in those circumstances, the land holder can be held liable for wild animals present on his property causing damage to adjoining property owners.

1045. In the case of Peech v Best [1931] 1 KB 1, the Court of Appeal was concerned with rights of shooting over an area of 12 acres. A number of cases were discussed, and Scrutton LJ, after referring to Farrer v Nelson, supra, stated the following principle at p.14 -

"This apparently shows that both landlord and sporting tenant must use their land reasonably having regard to the interest of the other, or be liable for damage caused to the other by extraordinary, non-natural or unreasonable action." (Emphasis added).

1049. In my view, that principle applies in the case of wild animals (animals ferae naturae), which may congregate on a land holder's property and move onto an adjoining property. If the animals are there of their own volition and hence naturally, then unless the defendant has done anything in relation to the animals or is under some obligation to control, confine, kill them or prevent their movement, it is unlikely that he would be held liable in private nuisance because of their actions in moving on an adjoining land holder's property and causing damage. This would even be so where the animals multiplied and became a menace by reason of their numbers. On the other hand, in my opinion, the land holder would be liable if damage was caused to the adjoining land holder by reason of his acts or omissions, which could be described as "extraordinary, non-natural or unreasonable".

1052. The case of Farrer v Nelson, supra, shows that if one was to bring an abnormal number of pheasants onto land which then escape into next door, there can be liability, but as a later case of Seligman v Docker [1949] 1 Ch 53 shows, if the problem arises because of a natural increase in the number of pheasants, then the land holder is not liable.

1055. In the latter case, Romer J considered the authorities to determine what right a land holder had to claim damages for marauding animals. In that case, unlike other cases concerning rabbits, the plaintiff had no right to kill the marauding pheasants. His Lordship said at p.63 -

"In the light of these circumstances, it is, my opinion, clear that the plaintiff, although disarmed could have no right to complain at common law merely because some damage (slight but definite) was occasioned to him by the pheasants in the defendant's coverts. At what point then, or in what circumstances, does such a right arise, assuming that it is capable of arising at all? I think the answer is to be found in the passage already quoted from the judgment of Scrutton LJ in Peech v Best: the defendant would be liable to the plaintiff for damage caused by 'extraordinary, non-natural or unreasonable action'."

1059. His Lordship noted that the view of Scrutton LJ was consistent with the other cases, and he applied the principle in the case before him.

1062. The English cases are now subject to a variety of legislative provisions in England.

1065. In Australia, there are few reported cases concerning animals ferae naturae being on one person's land and moving to nearby land, causing damage.

1068. In Pratt v Young (1952) 69 WN(NSW) 214, District Court Judge Brereton was concerned with marauding rabbits causing damage on an adjoining property. The defendant's property contained a paddock, which was fenced and had been recently ploughed, and this attracted rabbits. Netting on the fence of the boundary between the plaintiff's land and the defendant's land had been removed. The plaintiff erected his own netting but the netting was removed, replaced again by the plaintiff and yet again removed. The judge found that the defendant had set out to attract rabbits into his yard, expecting and hoping that they would then proceed onto the plaintiff's land. As His Honour said, "He merely facilitated their indulgence in their own roving inclinations, having provided means and enticement for them to enter his own land. He lured them to the door which he had opened."

1071. The evidence revealed that rabbits on the plaintiff's land increased markedly to some extent as a result of the access provided by the defendant, and the plaintiff suffered damage.

1074. His Honour considered exhaustively the English cases.

1077. The principles in relation to animals ferae naturae were summarised at p.218, where his Honour said -

"(1) A person is not liable merely for the presence of animals ferae naturae on his land, or for failing to destroy them, or for damage they do if they move elsewhere.

(2) If he deliberately brings or attracts animals ferae naturae onto his land, so as to cause damage on the land of his neighbour, he is liable, unless he has a right reserved out of his neighbour's grant or otherwise to put them there, in which case the right must be exercised reasonably.

(3) If a person's user of his land naturally attracts animals ferae naturae, the neighbour has no remedy for resulting damage to his land provided the user of the land is normal, natural and reasonable; if not, he has."

1083. His Honour's proposition No. 3 is based upon what Scrutton LJ said in Peech v Best, supra, that is, an occupier is liable for damage if caused "by extraordinary, non-natural or unreasonable action". In other words, if animals are deliberately brought onto a property or the property attracts animals ferae naturae, the land holder would be liable if the damage caused occurred by reason of the extraordinary, non-natural or unreasonable action of the land holder.

1086. In his excellent work, Liability for Animals, published in 1939, Dr Glanville Williams, at p.258, stated that it was difficult to summarise what the law was in respect to wild animals, with any confidence. He was of the view, and I respectfully agree, that Boulston's case should not be followed; that an action in nuisance concerning marauding animals has nothing to do with the law of property in them. One could further add that the question of whether a defendant is responsible for a nuisance cannot depend upon whether the plaintiff would be entitled to kill the marauding animal. In my view, Boulston's case should not be followed in Australia in this day and age.

1089. Dr Williams summarised the law established by the cases to 1939. I respectfully agree with the summary.

"(1) The keeping of animals ferae naturae in a state of liberty is not a nuisance merely because they cause damage to the lands of neighbouring proprietors, and the precise degree of propinquity is immaterial.

(2) Nor is the mere keeping of such animals in a state of liberty necessarily a private nuisance - whether or not they are deliberately introduced into the land, are kept in large numbers, and occasionally do some damage. ...

(3) The keeping of animals ferae naturae (or of sources of attraction for them) may become a private nuisance in the particular case."

1095. The authorities support the conclusion that the presence of animals ferae naturae on land can be cause of a private nuisance and make the land owner liable. But the basis for liability was some fault on the part of the land holder.

1098. Fault by a land holder in respect of the commission of a nuisance was essential - see Torette House Pty Ltd v Berkman [1940] HCA 1; (1939) 62 CLR 637 at 659 per Dixon J. If these were operations on the land which produced the nuisance, the plaintiff was more likely to succeed.

1101. The law has moved on since 1939 and in the following year, the important case of Sedleigh-Denfield v O'Callaghan was decided. But in addition, in this State, from 1949, Parliament imposed a duty on all land occupiers, including the Crown and a Minister of the Crown, to take reasonable action to destroy and suppress all vermin on their land.

1104. Given the old law which, in my view, imposed liability where the animals came onto land and caused damage because of the extraordinary non-natural or unreasonable action on the part of the adjoining land holder, coupled with the obligations imposed by the Vermin and Noxious Weeds Act 1958 (and the new regime under the Catchment and Land Protection Act 1994) on land holders, no land holder in this State can defend any claim brought against him in nuisance and negligence, on the ground that the animals concerned were ferae naturae and he had no control over them.

1107. No longer could an owner-occupier, up to 15 December 1994, sit back and do nothing in respect to animals ferae naturae which were on his land. It is not open to the State to defend this proceeding on the basis that it had no obligation to control wild dogs on its land because they were always there, and were not owned or controlled by it.

1110. The question is, did the State's employees know, or should they have known, of the nuisance that interfered with the plaintiff's enjoyment of his top paddocks, and did they permit its existence? In my opinion, the evidence of knowledge is all one way.

1113. In my opinion, the law today concerning animals ferae naturae moving from one land holder to another and causing damage, is found in the principles established by the cases of Farrer v Nelson, Peech v Best, Sedleigh-Denfield v O'Callaghan, Goldman v Hargrave and Leakey v National Trust, and the positive obligation imposed upon each land holder in this State by the former Vermin and Noxious Weeds Act 1958.

1116. The law focuses on the actual or presumed knowledge of the existence of the nuisance and the duty that arises to abate it, which is measured by the particular circumstances. In other words, the response to the nuisance expected of the land holder where the animals came from, will depend upon all the relevant circumstances.

1119. This brings me to the issue of the creation of the nuisance, that is, whether any employee or agent of the State was responsible for it or permitted it to continue.

1122. The wild dogs were not owned or controlled by the State or any employee or agent. The dogs were wild and moved from place to place of their own volition. No employee or agent of the State had any involvement in the dogs' movements. The Reference Area was created pursuant to an Act of Parliament by proclamation of the Governor-in-Council. Each employee and agent of the State employed during the period 1983 to the end of 1996 was not responsible for the establishment of the area.

1125. As I have already stated, I am satisfied that the Reference Area provided a safe haven for dogs, that wild dogs congregated in the area, and that from time to time, they moved onto the plaintiff's top paddocks and killed and injured his sheep and lambs. The proclamation of the Reference Area and the publication of the directive prohibiting the entry of any person into the area, save for management personnel, created the safe haven for wild dogs in the area.

1128. I find on the evidence, that employees of the State, employed in the Department at Wangaratta, Wodonga and Corryong, were aware, from at least 1982, of the following facts -

* That wild dogs were attacking the plaintiff's sheep on a regular basis and occasionally causing heavy stock losses;

* that the plaintiff, from at least 1983, was of the opinion that the dogs were coming from the Reference Area, and made his views known through telephone calls to members of the Department, correspondence to the Department, regular media coverage, and by attending meetings of concerned land holders. He made his views known by approaching Members of Parliament who wrote to the Minister at the time, resulting in consideration of the plaintiff's problems;

* that the plaintiff was agitating for more dogmen, more frequent visits to the Reference Area, the setting of traps and baits within the Reference Area, more frequent poison bait programmes and assistance to complete the electric fence on his boundary.

1134. I also find that the employees, in knowing these facts, knew or should have known that it was reasonably foreseeable that the dogs would travel from the Reference Area onto the plaintiff's land, which was the nearest land abutting the Reference Area. The employees knew, from at least 1982 right through to 1990, that wild dogs were regularly killing the plaintiff's sheep and lambs.

1137. This brings me to the next important issue, that is, was any employee of the Department authorised to manage or take responsibility in relation to what occurred in the Reference Area?

1140. This comes down to whether any person was authorised to control what occurred in the Reference Area.

1143. Although the Reference Area Act 1978 and the Management Plan contemplated that a person or body would be appointed to protect, control and manage the Reference Area, in fact, no person or body was expressly appointed. The Management Plan made it clear that the Department was responsible for the implementation of the Management Plan, and certain employees were named as points of contact.

1146. There were employees of the Department who were authorised to manage, protect and control the Reference Area and had the necessary power and authority to take steps to manage the area, which would include intensive dog control activities. I have made my findings as to who these employees were, and from 1 July 1989 through to July 1996, they were Mr Robin Patrick, Mr Geoff Ross, Mr Les Barton, Mrs Helen Bailey, Mr David Buntine, Mr Mike Gardiner, and Mr Moodie. All gave evidence, except Mr Buntine and Mr Gardiner. It was the view of some of the witnesses that Mr Buntine and Mr Gardiner would have had the authority to do something about the dog problem.

1149. I find that although the said employees were not responsible for creating the nuisance, nevertheless, from 1 July 1989 through to July 1996, they had knowledge of its existence and suffered the nuisance to continue despite the strong protestations and representations of the plaintiff.

1152. Further, I find that the said employees knew or should have known, as reasonable persons, that it was foreseeable that if the hazard was not eradicated or minimised, it could cause damage to the plaintiff's land. In those circumstances, a measured duty of care arose and imposed upon each of the said employees the duty to do something about the nuisance.

1155. The duty was reinforced by the provisions of the Vermin and Noxious Weeds Act 1958.

1158. What did the said employees of the Department do to remedy the foreseeable risk of damage to the plaintiff's property in order to eradicate or minimise the hazard?

1161. The Management Plan required the keeping of records. Unfortunately, the records were not kept. In order to determine what steps were taken to eradicate the dog problem and the blackberry problem within the Reference Area, it is necessary to go to a number of sources. The lack of proper records and the ad hoc approach to the dog problem within the Reference Area, no doubt contributed to the lack of activity by the employees of the Department. Further, there is a suggestion that the responsible employees misunderstood the management proposals for the area. Save for Mr Holmes, who was the senior officer concerned from about 1982 to 1985, the other persons called all demonstrated a woeful ignorance of the existence of the Management Plan, let alone its terms, and any obligation to keep proper records. One cannot help but get the impression that the relevant employees were of the view that no one was to go into the Reference Area and it should be left untouched. An analysis of the Reference Area Act and the Management Plan would have shown that they were quite wrong. Management was contemplated and was not inconsistent with the purpose of the Reference Area.

1164. Save for a book which referred to weed control from 1991, no records of weed eradication and animal control in the Reference Area were produced. Whilst Mrs Bailey thought that there may have been earlier records, she was unable to locate any.

1167. Save for what may have been noted in the files relating to activities at the Corryong office, and other than the memories of the relevant personnel and the dogmen, the only other source of information were maps kept on an annual basis which recorded approximately where dogs were captured, and other maps which revealed where snares had been located. The dogmen's diaries, which were kept for the research institute, recorded the types of snares used, the numbers of snares and the type of wild animal captured.

1170. From those sources, one can see that trapping occurred around the perimeter of the Reference Area and that dogs were captured on the tracks on either side of the area. The annual map also showed that in June 1990, three dogs were caught in an area either on or slightly south of the southern boundary of the buffer zone. They were the only dogs caught within or immediately adjoining the middle of the area during the whole period.

1173. Blackberry spraying occurred in March 1991 and was repeated in 1995.

1176. I find that in November 1987, Mr Barton implemented a poison bait programme some distance south of the area. There are no records relating to this programme. Mrs Bailey relied upon her memory. The programme involved laying baits up to 30 over a distance of 500 metres and this took some two days. The programme lasted about eight weeks. Mrs Bailey stated it was impossible to state how successful a programme had been because it was rare to find any dead dogs within the area of poison baits. Mrs Bailey, when she was in charge, repeated the process in 1993, 1995 and 1996. She had the authority to put in place the poison bait programme.

1179. The poison bait programme of 1987 occurred after the plaintiff had, through a local member, agitated for action, and contacted the Department in Melbourne for action, resulting in Mr Robin Patrick being assigned to look into the question. It is a fair inference that the poison programme came about as a result of that agitation. But despite this programme, nothing else was done from 1987 right through to 1993. Further, it was recommended in 1987 that an additional dogman should be employed, but there is no evidence that any steps were taken to increase the number of dogmen. There was no evidence that any of the persons responsible put in place any procedures to obtain the services of another dogman. Another dogman was employed, from time to time, from 1987 through to 1996.

1182. In my opinion, the relevant employees failed to take reasonable care to respond to the known problem. In my opinion, an intensive programme aimed at the Reference Area, in the form of snares and trapping deep into the area, poison baits in the area, and more frequent visits by the dogmen, would have all had some effect upon the dog problem. This is made clear by considering the plaintiff's stock losses during the years 1984-5, 1985-6 and 1986-7, when he went into the buffer zone and laid baits himself. In those years, his sheep losses were in the order of 57, 20 and 46, less a few for natural attrition. He was told, some time around 1986/87, that he was not permitted to go into the area and he could be prosecuted if he did so. He desisted thereafter. In other words, the common law right of every land owner to move onto somebody else's property to attempt to abate the nuisance was denied the plaintiff.

1188. In my opinion, the relevant employees, from 1 July 1989 through to 1996, knew of the extent of the risk, could reasonably foresee the likelihood of damage to the plaintiff's stock, but, in my view, failed to take reasonable steps to prevent or minimise the happening of the damage. It would not have been difficult to lay traps within the Reference Area, it would not have been difficult to increase the poison bait programmes around the area and also involve programmes within the area. To attempt to capture dogs around the edges of the area was inadequate. A programme should have been established to eradicate or minimise the number of wild dogs within the area itself. This reasonable preventative action was not taken and, in my opinion, the probabilities are that if it had, the problem could have been substantially minimised to the point of eradicating the dogs in the vicinity.

1191. All the expert evidence leads to the conclusion that if the dogs are aware of human presence in an area, they appreciate that the presence represents a danger to their existence, and they move from that area to somewhere else.

1194. Mr Galbally QC submitted that the size of the dog problem experienced by the plaintiff was exaggerated. He emphasised that the sheep loss figures put forward by the plaintiff from 1982 through to July 1990 were wrong, and that his losses from dog attacks were much less. He emphasised the lack of records, the doubtful credibility of the plaintiff and the few reports made to the Department. He also referred to other matters. Some of the criticism has substance. Mr Galbally submitted that if he made only a few reports, then the size of the hazard was such that the relevant employees' conduct was reasonable in the circumstances. I disagree. The plaintiff made his views known often and, in particular, in 1983 and 1987. When he did, the Department responded. Dr Farquhar's evidence shows the seriousness of the hazard.

1197. I find that the Department provided a certain amount of funds each year for dog control in the north-east region. I also find that although the employees of the Department, and in particular, Mr Patrick, were well aware that they were to keep within budget, if the budget was overrun, the probabilities were that the surplus would be found. It was suggested that the hands of the employees were tied and hence, they could not have done anything else within the area. However, a number of the relevant employees, whilst stating that the amount of activity of dog control in the Reference Area would depend to a degree upon the budget, nevertheless conceded that it was a question of priority. If a problem was there and it had to be overcome, then the most pressing problems would be addressed first, and Mrs Bailey did not suggest that a more extensive programme could not have been carried out in the Reference Area. She was and would have been in the position to prioritise the response to a problem.

1200. Although the plaintiff ceased to run sheep in the top paddocks from about late July 1990, nevertheless, he and his wife continued to agitate for more dog control programmes in the years that followed, and there was no evidence to suggest that any steps were taken to address the problem of dogs finding a safe haven in the Reference Area. I find on the balance of probabilities that the problem that existed in 1990 was still there in 1996, when the plaintiff sold his farm.

1203. I find that the relevant employees from 1 July 1989 failed to carry out the duty of care which rested upon each of them in respect to the nuisance, caused by dogs coming from the Reference Area onto the plaintiff's land and causing a nuisance. I also find that the nuisance was a cause of the losses suffered by the plaintiff.

1206. A number of what I have called the relevant employees, who were called as witnesses, expressed the view that the Reference Area was no different to the surrounding Crown land and hence, did not require any particular action to be taken to eradicate or minimise the wild dog problem.

1209. Implicit in their evidence is that the Crown, its employees and agents were under no particular duties to eradicate or minimise vermin on Crown land, and that it was appropriate to have in place a reactive system rather than a preventative method to deal with the wild dog problem. This attitude is quite misconceived. It may have contributed to the problem that the plaintiff experienced.

1212. First of all, under the Vermin and Noxious Weeds Act at the relevant time, there was a duty on the Minister for Conservation and the Crown to take reasonable steps to eradicate vermin on Crown land. Secondly, the presence of vermin on Crown land escaping onto adjoining land holder's property could constitute a nuisance at law, which required some response from the responsible employees and agents. It is no defence to the plaintiff's claim, or indeed any answer, to suggest that the State had no responsibilities, through its relevant employees, to deal with vermin problems arising from the passage of wild animals from Crown land onto private land.

1215. Further, in my opinion, a reference area should be treated differently from Crown land. The surrounding Crown land was open to the public. There are roads and tracks through it. No doubt, from time to time, people travel through Crown land. As I have already stated, dogs fear humans, they do not fear anything else, and the presence of humans in the area would deter the dogs. They are intelligent, learn from experience and would avoid humans if they represented danger.

1218. In contrast, the Reference Area was not open to the public and was rarely visited by any humans. Mr Holmes said he visited the area a few times in the period 1983 to 1985, Mr Patrick thought that he visited the area, but other than the dogmen travelling around the perimeter of the area and on occasions passing into the buffer zone, the area was left free of humans. The absence of humans meant that the area was a safe haven for animals. The absence of humans meant that the area was safe for other animals, and the other animals in the area, wombats and wallabies, are a source of food for the wild dogs.

1221. In my opinion, the Reference Area is different to surrounding Crown land and it should have been appreciated by the relevant employees that it was, and that it was creating a safe haven.

1224. The head of the Department would be very wise to ensure that a particular senior officer of the Department in the north-east region is given the sole responsibility for management of the area, is instructed to closely consider the Management Plan, ensure that records are kept and that proper management procedures are put in place to deal with vermin and noxious weeds in the Reference Area.

1227. The State, in its original defence, put the plaintiff to his proof. During the course of the trial, it was given leave to amend to raise a number of offences.

1230. The first new defence asserted that no employee or agent named by the plaintiff was an occupier, manager or controller of the Reference Area. In my opinion, the evidence overwhelmingly showed that there were employees at various times who did have the necessary control and authority over the Reference Area, and had the necessary authority to take steps to eradicate or minimise the dog problem.

1233. It was further asserted by the State that, at all relevant times, the employees nominated by the plaintiff did not owe him any duty of care because they were subject to the direction and financial control of the Department and hence, were constrained in what they could do. Again, in my view, the evidence overwhelmingly showed that although there was a budget, nevertheless, the issue of wild dog control was a matter of meeting problems as they arose. The witnesses readily accepted that if it was considered that the Reference Area was an important source of wild dog problems, then priority could have been given to taking additional steps to eradicate the problem. I find that the so-called budgetary restraints did not inhibit the relevant employees taking reasonable steps.

1236. Finally, it was asserted that there was no duty of care owed by any of the employees of the State in respect of the level of funding for wild dog control because it was subject to a budget and involved questions of policy and available resources. In my view, that is a variation of the alleged budgetary constraints and in my view, does not afford any defence to the plaintiff's claim in nuisance.

1239. In conclusion, I find that there were employees of the State in the Department now known as Natural Resources and Environment, who, in the course of their employment by the State, were guilty of permitting a nuisance which caused harm to the plaintiff, and failed to take reasonable steps to eradicate it. They would be liable to the plaintiff. It follows that the State is vicariously liable for the commission of the tort of nuisance.

1243. The plaintiff's claim is in common law negligence. It is necessary for the plaintiff to prove that the defendant owed him a duty of care. When I use the term "defendant", of course, I mean for the purposes of the Crown Proceedings Act, an agent, servant or independent contractor of the State.

1246. The law recognises that by reason of certain relationships, a party owes a duty of care to the other party. By way of example, employer-employee, school teacher-pupil, and occupier-visitor. In the absence of a particular relationship, the common law required the plaintiff to prove that it was reasonably foreseeable that the plaintiff may suffer injury and that there was the necessary relationship of proximity between the plaintiff and the defendant - see Cook v Cook [1986] HCA 73; (1986) 162 CLR 376 at 381-2. In light of recent pronouncements by members of the High Court, there may be some doubt now whether the proximity factor is part of the test. See Sullivan v Moody (2001) 75 ALJR 1570 at 1578.

1249. It is unnecessary to consider this question because the authorities in the past have established that in certain circumstances, an occupier of property owes a duty of care to an adjoining land owner to avoid damage, resulting from something moving onto an adjoining property by reason of some action or inaction on the first property.

1252. The facts in Hargrave v Goldman, supra, have been summarised. In the High Court, the three judges held that the defendant was negligent and two of the judges also found the defendant liable in nuisance.

1255. Windeyer J decided the case in negligence. His Honour considered the cases concerning duty of care and at p.66, said this -

"The trend of judicial development of the law of negligence has been, I think, to found a duty of care either in some task undertaken, or in the ownership, occupation or use of land or chattels. The occupier of land has long been liable at common law, in one form of action or another, for consequences flying from the state of his land and of happenings there, not only to neighbouring occupiers, but also to those persons who come upon his land and those who pass by. And, as I have remarked elsewhere, the tendency of the law in recent times has been to lesson the immunities and privileges of land owners and occupiers and to increase their responsibilities to others for what happens upon their land. To hold that the respondent had a duty to his neighbours to take reasonable care to prevent the fire on his land spreading would be in accordance with modern concepts of a land occupier's obligations. If it be a new step in the march of the law - and I do not think that really it is - then it is not a step which we need hesitate to take if nothing stands in the way." (Emphasis added).

1259. His Honour stated the duty in these terms at p.71 -

"In my opinion a man has a duty to exercise reasonable care when there is a fire upon his land (although not started or continued by him or for him) of which he knows or ought to know, if by the exercise of reasonable care it can be rendered harmless or its danger to his neighbours diminished. Of course, if the fire was brought by him upon his land - in the sense of being started or intentionally kept alight there by him or anyone for whose acts he was responsible - his duty would not be merely to take reasonable care: it would be the strict duty of Rylands v Fletcher." (Emphasis added).

1263. His Honour supported his conclusion by reference to the dissenting judgment of Scrutton LJ in the Job Edwards' case, supra which was approved in the Sedleigh-Denfield's case.

1266. The duty is to take reasonable care to eradicate or minimise the risk of injury or damage.

1269. The case went to the Privy Council, where the Judicial Committee stated the duty of care in circumstances where something occurred on a property which could be a source of danger to an adjoining land owner. The case was decided in negligence. The issue in the case was stated by Lord Wilberforce at p.656, when he said -

"It is one where an occupier, faced with a hazard accidentally arising on his land, fails to act with reasonable prudence so as to remove the hazard. The issue is therefore whether in such a case the occupier is guilty of legal negligence, which involved the issue whether he is under a duty of care, and if so, what is the scope of that duty."

1273. His Lordship referred to the dissenting judgment of Scrutton LJ in the Job Edwards case. At p.663, his Lordship stated the general basis of a duty when he said -

"One may say in general terms that the existence of a duty must be based upon knowledge of the hazard, ability to foresee the consequences of not checking or removing it, and the ability to abate it." (Emphasis added).

1277. The duty stated by the Privy Council at p.661 is "a general duty upon occupiers in relation to hazards occurring on their land, whether natural or man-made." It is a measured duty of care to remove or reduce hazards to their neighbours. Lord Wilberforce described the duty at p.663, which I set out above.

1280. In Stovin v Wise [1996] UKHL 15; (1996) AC 923, Lord Nicholls, at p.930, described the duty established in Goldman v Hargrave. His Lordship said -

"An occupier is under a common law duty to take positive action to remove or reduce hazards to his neighbours, even though the hazard is not one the occupier brought about. He must take reasonable steps to this end, for the benefit of his neighbours: see Goldman v Hargrave [1966] UKPC 2; [1967] 1 AC 645. If an occupier's tree is struck by lightening and catches fire, he must take reasonable steps to prevent the fire spreading. He must act as would a reasonable occupier in his position. In this situation a combination of features is present: foreseeability of damage or injury if preventive steps are not taken; control by the occupier of a known source of danger; dependence, or vulnerability, of the neighbour; and the prospect of damage or injury out of all proportion to the preventive steps required." (Emphasis added).

1284. An occupier has a measured duty of care to remove or reduce hazards to his neighbour and the duty depends upon knowledge of the hazard, ability to foresee the consequences of not checking or removing it, and the ability to abate it. The ability to abate it is measured by the cost and effort of removing or reducing the hazard, as against the likelihood and seriousness of the damage or injury.

1287. The burden which rests upon the occupier to abate the problem was stated by Dr Fleming in his Law of Torts, 9th ed., at p.480, as follows -

"Some allowance must still be made for the burden of abating natural conditions, but only in the context of determining what measures reasonable care requires in the circumstances. As already mentioned, this could include the particular defendant's resources. It may be too much to ask from a small holder that he expend a large sum of money to extinguish a burning rubbish tip, but not that he pour water on fire in a tree struck by lightening. Sometimes it may even be sufficient to allow the plaintiff himself to abate the nuisance, perhaps sharing expenses."

1291. The State, as owner and occupier of the Reference Area, clearly had the necessary control of the area and in normal circumstances, would owe a duty. However, that does not assist the plaintiff, who has to establish that an employee or agent, at the relevant time, owed the duty of care to him.

1294. I have already, in considering the cause of action in nuisance, considered whether any employees of the State were in a position to control what took place in the Reference Area and had authority to manage it and, if necessary, take steps to eradicate any vermin or noxious weed problems. In my view, for the reasons already stated, the employees who I have called the relevant employees, at the relevant times, namely, from 1 July 1989 through to July 1996, owed to the plaintiff the duty of care.

1297. Each of the relevant employees knew that wild dogs were killing the plaintiff's sheep. Each knew, or should have known, that it was most likely the dogs were coming from the Reference Area. Mr Barton accepted that in the period in question, he thought that there may be the connection between the dog movements and the Reference Area. The hazard existed and each of the relevant persons should have foreseen that there was a connection with the Reference Area.

1300. In my opinion, the relevant employees knew or should have known that it was foreseeable that damage or injury could be caused to the plaintiff's stock if preventative steps were not taken. Each had the necessary control or authority to deal with the known source of danger. The evidence established beyond doubt that the plaintiff was relying upon the Department's employees to address the problem, especially after he was precluded from taking his own steps to abate the nuisance. Finally, there was a real risk of injury if preventive steps were not taken.

1303. In the present case, it is the ability to control what takes place on the land in question which imposes the obligation. See Burrum Corporation v Richardson [1939] HCA 30; (1939) 62 CLR 214 at 218. Each of the relevant employees had authority to control what occurred in the area, and put in place programmes within the area to eradicate or minimise the problem. In my view, each relevant employee owed a duty of care to the plaintiff. I am reinforced in that conclusion by what was said in Stevens v Brodribb Sawmilling Co (1986) 160 CLR 16 at 30-1.

1306. In considering the cause of action in nuisance, I considered whether the relevant employees exercised reasonable care and, in my view, they did not, taking into account all of the circumstances, and the same reasoning applies to the cause of action in negligence. The provisions of the Vermin and Noxious Weeds Act 1958 apply to the Crown. In addition, s.6(1) imposed a duty on the Minister for Conservation to take reasonable action to destroy and suppress all vermin on unalienated Crown lands. Clearly, the Minister could not attend to performing the duty, and it is clear that the Minister's duty could be delegated to members of his Department. The Act would be unworkable unless this was so, and I am satisfied that the relevant employees, during the period 1 July 1989 to July 1996, were the persons who were responsible for discharging the obligations of the Minister with respect to unalienated Crown lands. In my view, the said relevant employees did not take reasonable action to destroy and suppress all vermin within the Reference Area. This failure is a fact which can be taken into account in determining the issue of negligence. It reinforces my conclusion.

1309. I find that the said employees, as from 1 July 1989 through to July 1996, were negligent, that they were negligent in the course and scope of their employment, and that the State is vicariously liable for their negligence.

1313. The final cause of action is based upon an alleged statutory duty by reason of the provisions of the Vermin and Noxious Weeds Act 1958. Whether a breach of any statute, which causes damage to a plaintiff, gives a right to the plaintiff to sue in a civil court for damages, depends upon the construction of the Act. This is not a case of employer-employee, where the authorities support the view that, prima facie, a breach of a statutory duty gives a right of civil action to the person injured. The authorities establish that where there is a provision in a statute prescribing a specific precaution for the safety of others, and the statutory duty rests upon a person who under the general law of negligence is bound to exercise due care, then a duty will normally give rise to a private right, unless one can discern from the legislation that the right is excluded - see O'Connor v S.P. Bray Ltd [1937] HCA 18; (1937) 56 CLR 464 at 478.

1316. But the present case is not concerned with any relationship between the plaintiff and the Crown which imposes any duty. In the absence of such relationship, the general rule is, in the absence of any express words in the statute, that the statutory duty does not give a correlative right to any person who suffers loss as a result of its breach.

1319. In X (minors) v Bedfordshire CC [1995] UKHL 9; [1995] 2 AC 633 at 731, quoted above, Lord Browne-Wilkinson stated that the basic proposition is that in an ordinary case, i.e. in the absence of a special relationship, a breach of statutory duty does not give rise to a private law cause of action. It all depends upon the construction of the statute. Factors such as the statute providing no remedy for its breach and an intention to protect a limited class, tend to point towards a private cause of action. If, on the other hand, there were provisions relating to enforcing the duty, then this tells against a private right of action.

1322. It is significant that there are no express words giving a private cause of action. Further, there are a number of statutory provisions to enforce the duty.

1325. The obligation to take reasonable action to destroy and suppress all vermin was imposed by s.6(1) of the Act on the Minister for Conservation and by reason of s.41(e), the Minister could be prosecuted for contravening or failing to observe that sub-section and be liable to a penalty of not more than ten penalty units. Hence, the statute provides a remedy for the breach. Further, other steps can be taken under the Act to enforce the duty, eg under s.8, by notice to destroy vermin, followed by court action if there is non-compliance. In my view, the statute does not evince an intention to protect a limited class of people, and, in my view, there is no indicia in the Act leading to the conclusion that it was intended by Parliament that a breach of s.6 by the Minister of the Crown would give a private right of action to any person, who may suffer as a result of a breach of that section.

1328. Mr Monotti was unable to point to any indicia in the Act which would lead to the conclusion that the breach of the duty by the Minister gave the victim a private cause of action.

1331. In my opinion, the plaintiff has not established that s.6 of the Vermin and Noxious Weeds Act 1958 gives him any right to bring a civil proceeding against the Minister for an alleged breach of the section.

1334. This conclusion avoids the issue whether there was a statutory duty under the Act resting on an employee or agent of the Crown. An interesting question, not free from difficulty - see Lyver v State of Victoria, supra.

1338. In my opinion, the plaintiff, having established his causes of action in private nuisance and common law negligence, is entitled to recover damages resulting from the wrongdoing of persons, for whom the State is vicariously liable. The plaintiff is entitled to recover all damages which have been caused by the commission and continuation of the nuisance and the negligent conduct. The loss must not be too remote. In the Wagonmound (No. 2), supra, the Privy Council held that the same rules concerning remoteness applied in nuisance as in negligence, namely, was the injury reasonably foreseeable, rather than, was it direct. Although the case was one concerning public nuisance, the Privy Council made it clear that it applied to all nuisances.

1341. Two questions therefore arise, namely, causation and measure of damages. These are two different concepts and must be considered separately. The first is concerned with a question of fact, namely, whether the wrongful conduct in fact caused injury.

1344. The second is concerned with the boundary of liability for the wrongful act. A line must be drawn where recovery ceases. Policy and value judgments intrude into this part of the exercise with pure logic taking a back seat - see Lord Wright in Liesboch v The Edison [1933] UKHL 2; [1933] AC 449 at 460.

1347. It is said in the present case that the nuisance and negligence caused loss to the plaintiff's property, namely, the destruction of his sheep and a devaluation in the value of his property (i.e. real estate); that being forced out of sheep, he suffered a financial loss; that the losses of his sheep created financial problems for him, which ultimately led to the total destruction of his farming and contracting businesses; and further, that he suffered personal injury in the form of depression.

1350. The second question is the measure of damages.

1353. The test to apply to determine the amount of damages is that stated by Lord Blackburn in Livingstone v Rawyards Coal Co (1880) 5 App Cas 25 at 39, where his Lordship defined the measure of damages as "that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in, if he had not sustained the wrong, for which he is now getting his compensation or reparation." That statement of principle has been adopted and applied often in this country, and I refer, by way of example, to the High Court decision of Butler v Egg and Egg Pulp Marketing Board [1966] HCA 38; (1966) 114 CLR 185 at 191.

1356. In practical terms, the application of the test requires the Court to consider the hypothetical position that the plaintiff would have been in if the tort had not been committed, and compare it with the actual position after the commission of the tort.

1359. In his statement of claim, the plaintiff claims the following heads of damage -

(a) The value of the sheep killed by wild dogs;

(b) loss of income in the financial year 1989-1990 resulting from the death of the sheep;

(c) loss of income from his farming land and his businesses from 1 July 1990 to date and continuing;

(d) consequential costs and value of labour incurred by him in order to prevent the attacks on his sheep;

(e) personal injuries which have been defined as "severe inconvenience, anguish and distress";

(f) reduction in value of his land as a result of the attacks;

(g) losses sustained by reason of the forced sale of his livestock, chattels, farm machinery, plant and equipment, and also the capital loss sustained by reason of the forced sale of his land;

(h) medical and like expenses;

(i) lost opportunity to fully use and develop his farming property and his businesses.

1365. There was no evidence of any medical or like expenses, nor was there any evidence of losses on the sale of the chattels and furniture or his plant and equipment.

1368. The amended statement of claim did not state any amounts for the said losses.

1371. At the beginning of the trial, I required the plaintiff to give particulars of his damages, which resulted in a five page document that hardly shed light on the claims. It is said that the plaintiff suffered economic loss as follows -

1376. His claim for general damages for personal injuries was said to be for "anxiety and depression", which is different to what is alleged in the amended statement of claim. "Depression" was not alleged.

1379. The heads of damage cover both direct and consequential losses.

1382. The consequential losses raise questions of causation.

1385. The monetary claims made by the plaintiff rest heavily on the evidence of a Mr Anthony Pickett, an agricultural consultant, with very little factual evidence from the plaintiff or his wife. The evidence from the expert, the plaintiff and his wife was unsatisfactory because of its inadequacy, vagueness and lack of records, and the approach of the expert in seeking to determine the financial losses, based as it was upon a number of assumptions, some of which were never proven, and in some cases, not based upon the actual events. On top of that, the expert proceeded to prepare models based upon what he thought was the position, only to ascertain that he was not given all information, especially in relation to the losses alleged to have occurred after the plaintiff ceased to run sheep.

1388. Mr Pickett has a Bachelor of Agricultural Science but no qualifications in the area of accountancy. I have no doubt that over the years he has been in practice, which is in excess of 30 years, he has gained a very wide knowledge of financial matters concerning farm management and the business of farming.

1391. His brief was to prepare a report "that assesses the extraordinary livestock losses that occurred on the property owned by Mr R. Stockwell ... The report is also to determine the monetary effects that the impact of those extraordinary livestocks had on the business and to assess the compensation payable as a result of these extraordinary livestock losses". The result was a 17 page report, together with, initially, 38 attachments, which he supplemented with another 19 attachments during the course of giving evidence, some of which were in substitution of the earlier ones. I found the evidence extremely difficult to understand, confusing and in the end result, of little value. Unfortunately, Mr Pickett was not given proper instructions as to the facts, heads of damage and the applicable legal principles. Many of his financial exercises were not based on fact, but what he thought would have been the position.

1394. I propose first to consider the direct losses, and assess damages in respect to each head of loss, and then consider the alleged consequential losses and finally, the personal injury claim.

1398. The evidence in respect to this head of claim is unsatisfactory. It is trite law that the plaintiff has the burden of establishing his damages on the balance of probabilities. The law expects that the best evidence be placed before the Court. Unfortunately, the Court has not had the best evidence placed before it.

1401. The plaintiff lost sheep during the two financial years 1 July 1989 to 30 June 1991.

1404. The first question concerns the number of sheep that were killed by the wild dogs or were so injured that they had to be put down. The plaintiff gave evidence based upon his memory which, to say the least, was vague, and repeatedly denied that he had any records which would enable him to state, with some degree of certainty, the number of sheep that were killed or maimed by wild dogs. He said that it would not be possible to make a count of sheep destroyed by dog attacks because little was left after an attack, and some lambs could have been removed from the area by the dogs. I have some difficulty accepting his evidence that it was not possible to make a count of the sheep killed or injured. Some witnesses involved with sheep deaths stated that it was not difficult. Documentary evidence from a number of sources revealed some numbers of sheep killed as a result of dog attacks. He was unable to produce any records as to the actual number of sheep killed.

1407. Not only was he unable to produce any records, but he was unable to give any evidence of the type of sheep killed, their age, and whether or not the sheep were carrying lambs. Further, he was not able to give an estimate of the number of lambs killed. All these matters are relevant to assessing the true measure of damage.

1410. The relevant period is from 1 July 1989 to the end of July 1990. It was during this period that sheep were killed. It is convenient to divide up the period into financial years.

1413. The plaintiff gave evidence that he gave figures to his accountants to enable them to prepare his financial statements and tax returns, and that he believed that the figures he gave were accurate. These figures include sheep that died from causes other than dog attack. Also, the figures were not divided into sheep and lambs. The difference in their value during the years in question was substantial.

1416. According to the 1989-90 taxation returns, there were 200 sheep lost through "deaths and missing". Just how many were missing or lost through causes other than dog attacks is difficult to determine. The plaintiff said that he lost about one per month, but I have some difficulty accepting that evidence. A local farmer, Douglas Paton, who was very experienced in this area, said that he aimed to keep the figure at about 3% but as he pointed out, if a farmer was running dry sheep, it would be less, but if running ewes and lambs, it could be a little more. As he put it, "But it's a varying thing. You try to minimise it."

1419. Mr Anthony Pickett, the agricultural consultant called on behalf of the plaintiff, in doing his calculations, proceeded on the basis of 1.5% being the mean between 0-3%.

1422. Dr William Sykes, a veterinary surgeon, was called to give evidence, and he opined the view that the losses due to other causes, in respect of merino ewes, would be in the range of 2-5%, and in respect of lambs, the range would be anything from 2% through to 10%. As he pointed out, if lambs are born in a period of particularly nasty weather, the absence of shelter, or night births, there is the risk of deaths due to exposure causes. In addition, as he pointed out, the older the ewes get, say, five years of age, and depending upon management, they become frail and the mortality rate can increase. However, as he pointed out, some farmers do hold onto ewes up to eight years of age.

1425. I was particularly impressed with Mr Paton's evidence, and taking into account also the evidence of Dr Sykes, I think that 3% would be the appropriate figure for sheep losses due to causes other than the wild dogs.

1428. In the financial year 1989-1990, the plaintiff increased his flock by 947 lambs from some 1,600 sheep. The predominant proportion of his stock were breeding ewes. I think a 3% deduction is appropriate.

1431. The next question is, 3% on which figure? The plaintiff started out that financial year with 1,030 sheep, he purchased 657, amongst which one assumes there were a fair number of ewes, and he had a natural increase of 947 lambs. He sold 244 and killed ten for rations. This leaves 2,380, although the financial statement reveals he had 2,180 as at 30 June 1990. The difficulty is that the stock numbers are changing during the course of the year, with lambing around May. Doing the best I can, I think 3% on 1,500 would be appropriate, which would mean that there would have been a natural loss of 45 sheep. Hence, the number of sheep lost due to the wild dog attacks was 155 for that year.

1434. To compound doubts about that figure, Mrs Stockwell gave evidence that she prepared a summary, based upon a number of sources, as to the sheep losses each year. For the year 1989-90, she recorded that 96 sheep were lost due to dog attacks. Mrs Stockwell stated that she obtained some of the information from what her husband told her, based on his memory. There is a discrepancy between losses in some years recorded in the tax return and losses recorded by Mrs Stockwell.

1437. Coming to the next financial year, 1990-91, the income tax return placed before the Court does not reveal the number of sheep that were killed during that year. The evidence revealed that during July 1990, the plaintiff suffered attacks by wild dogs and lost some sheep.

1440. The plaintiff gave evidence that in June-July 1990, he suffered a number of attacks and all told, some 200 sheep were killed. However, the evidence did not divide up the 200 between June and July. Further, I have some difficulty accepting those figures. Mr Barton said that if an attack killed 200, it would be the biggest figure he had ever heard. No doubt, that number, over two months, would have caused some interest but Mr Barton was unaware of any attacks upon the plaintiff's stock during this period. Taking into account the plaintiff's lack of credibility, I reject his account.

1443. Mr Pickett put the figure at 190. He said he sourced that figure from the financial statements 1990-91. However, there was no evidence placed before the Court which supported that figure.

1446. The plaintiff was recalled in order to explain a number of matters relating to records and the lack thereof. The plaintiff stated that in the month of July, he believed some 50 to 60 sheep, plus lambs, were lost. However, he stated that there were no records as to the number of sheep and lambs that may have been lost.

1449. The evidence is indeed very unsatisfactory and vague.

1452. The plaintiff's memory is like the memory of most of the population, and the weight that can be attached, in the year 2001, to what he thought happened in July 1990, is extremely small. The plaintiff must prove his case, and if I err against him, then he only has himself to blame, because of the lack of records. Doing the best I can, I put the sheep losses at 50 for that financial year. Whilst the plaintiff thought some lambs were also killed, the evidence is so vague that I cannot accept it. The Court would be guessing as to the number of lambs that may have been lost.

1455. The next issue concerns the make up of the sheep lost in the year 1989-1990. There is ample evidence from a number of sources that the wild dogs attack lambs more than sheep, that often the attack is nothing more than sport for the wild dogs, and that they do not always eat the lambs. The evidence also reveals that the wild dogs may drag off a lamb to feed to their pups. Given that evidence, it is difficult to determine, of the 155 sheep that were killed in the year 1989-1990, what proportion were in fact lambs. There are no records. The plaintiff was unable to give a figure. The number of sheep killed and the number of lambs killed will have an effect upon the measure of damages, and is an important issue. Despite this, no effort was made to divide up between the mature sheep and lambs killed. As lambing occurred in May, lambs killed in 1990 would no doubt be confined to the month of June in that financial year. However, some lambs may have been killed after 1 July 1989. Again, doing the best I can, from totally inadequate evidence, the number of lambs killed in that financial year were 55 as against 100 sheep.

1458. The next issue is to determine the damages attributable to the death of 100 sheep and 55 lambs during the financial year 1989-90, and 50 sheep lost in the following year.

1461. Each sheep lost was an income producing chattel. In relation to ewes, their value was made up of wool, meat and producing lambs. The lambs had the capacity of producing meat and, maybe, wool.

1464. In my opinion, the normal measure of damages for the destruction of an income producing chattel, is its market value at the time and place of its destruction. This would normally be its cost of replacement. The cost would reflect its income producing qualities. In the case of particular sheep, the potential for breeding, wool and meat. See McGregor on Damages, 16th ed., at para 1283 et seq.

1467. The best evidence of their market value would be the prices obtained in selling and buying sheep, at the relevant time, in the area. No evidence was adduced as to these matters.

1470. Mr Graham Costello, a stock agent carrying on business in Corryong was called to give evidence. However, he was not asked as to the value of sheep and lambs as at 1989-90, 1990-91.

1473. The expert, Mr Pickett, gave evidence as to the values of sheep and lambs at those dates, relying upon information given from the Australian Bureau Agricultural Resource Economics. According to his information, the average price of sheep sales in 1989-90 was $6.79 and the average price for lambs at $23.27. For the following year, 1990-91, the average price for sheep was $2.20 and price of lambs $20.62.

1476. The evidence revealed that in 1989 and the years to July 1993, wool and sheep were at a very low price.

1479. Based upon those figures, the loss suffered by the plaintiff can be summarised as follows -

1485. It follows that the damages for the loss of the sheep during the relevant years totals $2,068.85.

1488. It was submitted, on behalf of the plaintiff, that the losses due to destruction of sheep were not confined to the market value of the sheep, and that there were also other financial losses. When the plaintiff's expert, Mr Pickett, first gave evidence, a discussion occurred as to the period of the plaintiff's losses, and the view was expressed that the period was from 1 July 1989. When he returned to the witness box, Mr Pickett produced an exercise, which he marked "P26", which demonstrated a loss of $31,134 for extraordinary livestock losses for the financial years 1989-90 and 1990-91. The categories of losses covered sheep, lambs, cattle, loss on wool clip and what he described as "additional operating costs".

1491. I do not accept his evidence. First, he has taken into account alleged cattle losses. There is no evidence that any cattle were killed during those years because of marauding dogs. Secondly, he has assumed that 190 sheep were lost during the year 1990-91. In fact, the evidence was between 50 to 60, and I have accepted the figure of 50 sheep. Thirdly, he has proceeded on the basis that the total sheep losses in each one year, are to be reduced because of losses due to other causes, which he put at 1.5%. I have accepted the evidence that the figure is 3%. Fourthly, he has divided up the sheep losses due to dog attacks at 30% ewes and 70% lambs. He informed the Court that he was told the break-up by the plaintiff. There is no evidence of the break-up between sheep and lambs killed during those years. Nevertheless, his exercise has identified a number of heads of damage. They are -

(i) Loss in value of wool clip because of effect of dog attacks upon the flock;

(ii) additional operating losses due to dog attacks.

1501. Evidence was given by Dr Sykes, Mrs Stockwell and others, which I accept, that sheep which are the subject of attacks by wild dogs, produce a lesser quality of wool. The inferior quality comes about not because the wool has been physically damaged, but by reason of the distress and upset resulting from an attack, sheep tend to eat less and are generally distressed. The overall effect is that the wool clip is of poorer quality and is described as tender wool. Wool depends upon healthy sheep and if not healthy or not eating properly, there is the risk of an inferior wool clip. Mrs Stockwell gave evidence, which I accept, that she had commenced a wool classing course, which she did not complete, but had had experience in classing wool on the property which she shared with her former husband. In the years 1989 and 1990, she classed the wool of the plaintiff's clip, and expressed the view that the wool was inferior and hence, the plaintiff suffered a loss. In addition to the inferior quality due to distress and its consequences, and the lack of adequate feed, there was damage to some sheep that ended up in the dams, seeking to avoid the marauding dogs. The underbelly of these sheep was covered in mud and this affected the quality of the wool. I find that the wool clips in 1989 and 1990 were of lesser quality than one would expect, due to the effect of the dog attacks.

1504. However, the difficult part of the exercise is to determine the measure of the loss. The exercise is again made difficult by the paucity of evidence. There was no evidence as to the actual wool production for the period or the class of wool.

1507. Mr Pickett did an exercise based on what he thought would be the estimated wool production, and said that he proceeded to calculate the losses based upon 40% of the wool being of inferior quality. He said that he obtained the latter figure from Mrs Stockwell. Mrs Stockwell gave evidence that she thought about 40% of the wool clip was damaged and tender wool. However, there were no records as to the classification of the wool or the number of bales in the relevant years. Mrs Stockwell frankly conceded that she was casting her mind back over many years. She stated that when she was on her first husband's farm, the inferior wool clip was in the order of 15%.

1510. Mr Pickett carried out his assessment of the likely damage, but his percentages varied. The defendant tendered a statement, dated 28 February 1991, which showed that 18 bales of wool were sold in February that year for $7,497.55. However, there is no other documentary evidence relating to the issue. The value of the wool for the financial year 1990-1991 is uncertain. Mr Pickett has the income at $11,917 and in another document, at $3,056. In one exercise (P26) he has the value of the loss at $611, which seems to have been based on an income of $3,056. This represents a 20% loss due to tender wool. When he worked out the loss in attachment for the year 1989-90 (P26, produced on 2 November 2001), he had the loss at 20% but in a later version, the loss was at 35%.

1513. Given the unsatisfactory state of the evidence and the inconsistencies in the evidence of Mr Pickett, the task of the Court is indeed a very difficult one. The authorities establish that the Court must do its best from the evidence to assess a loss which, I accept, did occur, but a stage may be reached where the Court would be indulging in pure speculation. Mr Pickett has put the loss for the year 1989-90 at $4,226, and in the following year, at $611. The latter figure appears to be wrong, as exhibit DEF35 shows. Again, if I err because of inadequate evidence, I err on the side of the defendant. The plaintiff has the burden of proof and the primary evidence is woefully inadequate. Doing the best I can from the evidence, I assess the amount of loss due to damaged and tender wool at $3,909.71, which I calculate by taking 20% of the wool income for the years 1989-90 ($12,091) and 1990-91 ($7,457.55, compared with financial statements showing $3,056.)

1517. Mr Pickett, in an exercise, has also allowed the sum of $4,500 for each of the two financial years for what he has described as "additional operating costs". One has to go to his exhibit P12 to determine how he arrives at those figures.

1520. His exhibit P12 sets out how he arrived at the annual figure. He added up the cost of various materials that were purchased during the years 1982 through to 30 June 1990, and added to that what he thought was an appropriate figure for the maintenance cost of fencing and spraying, legal fees in relation to closing an access road, veterinary costs to treat multiple sheep, cost to shoot mauled sheep, and costs of additional supplementary feeding. His grand total was $36,089 and he averaged the cost per year, over the eight year period, at $4,511, by dividing by 8. Most of these items were not proven as fact.

1523. As already stated, the commencement of the claimable period is 1 July 1989 and accordingly, all costs incurred prior to that date are irrelevant. This leaves only one item, which is wire and insulators, of $319. A bundle of invoices were put into evidence and it is noted that the plaintiff paid $319 for wire and insulators in that financial year.

1526. None of the other items are supported by the evidence. If these costs were incurred, they should have been the subject of direct evidence. Whilst I have little doubt that there would be a maintenance cost involved in keeping up the electric fencing, that from time to time, a veterinary was involved in treating more sheep, and that there would be an expense in shooting mauled sheep, there was no evidence from the plaintiff as to these costs. It would appear also, that there was supplementary feeding, but again, there is no evidence from the plaintiff, or indeed any other source, as to the cost of supplementary feeding due to the flock being located down on the flat area near the road, being the northern portion of the 600 acre back blocks.

1529. But in any event, costs incurred prior to 1 July 1989 are irrecoverable. The amount recoverable is $319.

1533. The nuisance caused by marauding dogs continued in the financial years 1989-90 and for a short period in 1990-91. In order to combat the problem, in effect to minimise or reduce it and thereby abate it, the plaintiff spent a number of nights during the winter months in his paddocks, attempting to keep the dogs at bay. He gave evidence that during the winter of 1989, he spent many nights in the paddocks attempting to catch the dogs. He also gave evidence that in July of the following year, he spent some time attempting to stop the problem.

1536. I accept his evidence that the work was distressing and tiring and meant that he had to catch up on his sleep during the day, which meant that he was less effective around the farm.

1539. If the tort of nuisance or negligence had not occurred, the plaintiff would not have been obliged to spend time out during the night. He is entitled to general damages for the inconvenience, his attempts to abate the nuisance and the expenses of running his motor vehicle. There was no evidence of the costs involved in running his motor vehicle.

1542. In Mayne and McGregor On Damages, 12th ed., at paragraph 744, the learned authors said -

"Beyond physical damage to the land however, the nuisance may cause annoyance, inconvenience, discomfort or even illness to the plaintiff occupier. Recovery in respect of these principally in non-pecuniary losses is allowable and may be regarded as part of a normal measure of damages."

1546. See Cox v Mayor, etc of Essendon (1894) 16 ALT 7 and Bone v Seale [1975] 1 WLR 797 at 804-805, where Scarman LJ referred to the above text with approval. See also Oldham v Lawson (No. 1) [1976] VicRp 69; [1976] VR 654 at 658 et seq.

1549. I allow for annoyance, inconvenience, distress, upset and the steps taken to abate the nuisance by staying out at night for the winters of 1989 and 1990, the sum of $5,000.

1553. The plaintiff acquired the total farm on 23 December 1981. Shortly prior to that date, there had been a substantial dog attack in that year and thereafter, there were dog attacks right through to July 1990, when the plaintiff took steps to move his sheep away from the area.

1556. The evidence revealed that after July 1990, there were no more dog attacks on any stock on the top paddocks. They were leased in April 1991 and remained leased until sold in July 1996. During that period, the lessees ran cattle on the area.

1559. Nevertheless, the evidence established that the relevant employees of the State did not take any particular steps to eradicate the dog problem in and around the Reference Area after July 1990. The new owner gave evidence, and he stated that after he acquired the property in 1996, he heard and observed dogs in the Reference Area.

1562. The two top paddocks were sold on 19 July 1996, and it was a term of the contract of sale that the purchaser acknowledged that the area was prone to dog attacks on sheep and cattle. There is no doubt that the fact was well-known in the area at the time and was publicised at the auction. Hence, the land was sold on the basis that it was next to the Reference Area and was prone to marauding wild dogs.

1565. I am satisfied on the evidence that the probabilities are that if sheep were run on the top paddocks up to 1996, they would have been subject to dog attacks from the Reference Area. It follows, therefore, that the nuisance continued up to that date, and the land was sold on the basis that it was subject to the nuisance of wild dog attack if sheep were run on the top paddocks.

1568. The evidence from the valuers called by the plaintiff was, that the fact of dog attacks on the property would have an effect upon its value simply because one of the potential uses of the property was not available, namely, the running of sheep. During a farmer's life, the benefit of running one particular type of stock will vary according to the prevailing rural scene. To have the potential of changing from one stock to another because of changed circumstances is a benefit to a farmer. If his land is capable of being run for either sheep or cattle, then it has a greater value than land which cannot be used to run sheep.

1571. I find that the value of the land comprising the top paddocks, at the date of the sale, was less, due to the probability of wild dog attacks on sheep. But is the plaintiff entitled to recover the loss in value, taking into account the prior history of dog attacks going back to 1982?

1574. Most nuisance claims are a continuing cause of action. So long as the nuisance exists and continues to cause loss, there is a separate cause of action established each time a loss is suffered. In addition, some common law negligence causes of action are continuing and like the nuisance claim in the present case, is capable of being established each time further damage is suffered.

1577. The fact was that, as at 1 July 1989, the plaintiff's land was devalued by the existence of the nuisance. However, the devaluation continued each time there was a dog attack. If the relevant employees had performed their duty, the value of the land in the hands of the plaintiff would have been restored to what it should have been if the nuisance did not exist. The potential of dog attacks would ensure that the value was still less. After 1 July 1989, when the first dog attack occurred, there was a new cause of action. Damage was suffered. The fact that it had occurred meant that the value of the property was less. If the attacks were eradicated, then the value would have been restored. In my opinion, the plaintiff is entitled to recover the loss which crystallised on the sale. The loss was continuing.

1580. My conclusion is supported by the reasoning in the recent House of Lords decision of Delaware Mansions Ltd v Westminster City Council [2001] UKHL 55; [2001] 3 WLR 1007.

1583. In that case, church commissioners sold flats in a group of terraced mansion blocks on long leases. In 1989, following a period of drought, cracks appeared in the structure of three blocks. In March 1990, it was ascertained that the roots of a plane tree on the adjoining pavement had encroached under the property and that if the tree was not removed, underpinning was necessary. In June 1990, the commissioners sold the freehold reversion to a company, F. Limited. In August 1990, the local Authority was provided with a copy of the report and asked to remove the tree, which it declined to do. Acting on the advice of the engineer, works were carried out to underpin the property. A proceeding was instituted by the new owner, against the Authority, for damages for nuisance and the trial judge found that there was a nuisance, that the work undertaken was properly and reasonably incurred, but dismissed the claim on the basis that the damage had already occurred during the commissioners' ownership and the new owner had not been able to prove that any of the remedial work that had been carried out had been necessitated by new damage. On appeal, the Court of Appeal held that since the nuisance had continued after the transfer to the new owner, the latter could recover the cost of eliminating the nuisance, notwithstanding the absence of any further physical damage after the date of acquisition. The House of Lords dismissed the appeal, holding that the liability of the authority to an owner of neighbouring land fell to be determined by an application of the concepts of reasonableness between neighbours and reasonable foreseeability, and, where there was a continuing nuisance of which the defendant knew or ought to have known, reasonable remedial expenditure could be recovered by the owner who had been required to incur it, even though the onset of the damage occurred prior to the new owner acquiring an interest in the property.

1586. However, the right to recover the damages, as a general proposition, depends upon the defendant having notice of the problem and a reasonable opportunity to abate it. If that principle applies to the present case, I find that the relevant employees had ample notice and time to abate the continuing nuisance.

1589. In the present case, the plaintiff owned property near Crown land, as at 1 July 1989, which was prone to wild dog attacks. The property was already depreciated by that fact. But the nuisance was continuing, and the plaintiff has established causes of action based in nuisance and in negligence since 1 July 1989. A new cause of action accrued each time damage occurred. The causes of action were continuing. The relevant officers were well aware of the problem of dogs with the Burbibyong Reference Area, had every opportunity of taking steps to minimise the problem and failed to do so. In my opinion, the plaintiff's loss in value due to the wild dog problem continued unabated, whereas if steps had been taken post 1 July 1989 up to July 1996, the value of his land would have been restored to a value unaffected by the nuisance. In my view, he is entitled to damages for the failure to abate the problem, resulting in the value of his property being depreciated.

1592. The plaintiff's total farm, comprising three separate parcels, was sold in July 1996. The plaintiff claims two heads of damage in respect to the sales. First, that the price of the top paddocks adjacent to the Reference Area, was depreciated by reason of the continuation of the dog attacks. The second head of damage was that because the sales occurred as a forced sale, a lesser price was achieved and the loss was caused by the dog attacks and failure to abate.

1595. I will deal first with the alleged devaluation of the hill paddocks. The other head of damages is a consequential loss if due to dog attacks.

1598. The plaintiff called two valuers to establish the alleged loss due to the marauding dogs.

1601. Mr Trevor Webb was of the opinion that the true value of the top paddocks, absent the dog attacks, at the date of sale, namely, 19 July 1996, was $490,000. However, taking into account the problems with the dogs, he thought that the true value at that date was $435,000. In other words, on a value of $490,000, he has allowed $55,000 referrable to the dog problem.

1604. The actual price obtained on the sale was $225,000. He did not give any evidence as to what price he thought would have been obtained on that day if there had not been a dog problem.

1607. Mr Webb has been conducting his own business under the name of Western Victoria Rural Valuation Services Pty Ltd and his experience has been mainly confined to western Victoria. He has been based in Ballarat since 1981. At one stage, he was an employed rural valuer and consultant with the State Bank of Victoria, and subsequently, the Commonwealth Bank of Australia; his responsibility was for western Victoria. However, he did have some experience in other areas, but not a great deal. He was familiar with the Corryong area.

1610. His lack of first-hand knowledge and experience of the Corryong area must be taken into account in weighing his evidence. Further, he did not seek any information from the local valuer's office in the Corryong area, as he was of the view that it would not assist him, and he found very little assistance from any sales in the area. Accordingly, his evidence was very much based upon his general experience, with very little contribution from local information, knowledge or experience. His evidence was based upon his general experience of other parts of Victoria. I found his evidence unconvincing. I have great difficulty accepting that the proper price in July 1996 for the top paddocks was $435,000. This is especially so taking into account the valuation of Mr Kirk, who was also called by the plaintiff and gave a valuation in May 1984 to the Commonwealth Bank in respect of the property. He put the value in May 1984 at $305,000, which included the two blocks on either side of the pine plantation. He reduced the figure by 25% on the basis that it was a forced sale. The Commonwealth Bank put a reserve on the top paddocks at $268,000. Mr Kirk said that the value would have been increased by somewhere between 3 - 5% during the intervening period from May 1984 to July 1996. Overall, I was not impressed with Mr Webb's evidence. He did not test his end result against information gained from the local valuer, or indeed the local real estate agents, nor did he seek a full list of all the sales in the area during the relevant period. Mr Kirk obtained a report of sales in the general area around about that time, which reveals some 27 sales during the calender years 1995-1996. I do not accept the evidence of Mr Webb as to the value of the property at the date of the sale, with or without the dog problem. His methodology is not based on any evidence of substance, but was really based upon his view which, he frankly admitted, was very much influenced by what had happened in other areas well away from Corryong.

1613. Mr Kirk, as I have stated, gave a written report and valuation to the Commonwealth Bank on 18 May 1994. He valued, as at that date, the total value of all the properties at $533,000. On a forced sale basis, he was of the view that the total farm was worth $404,000. He frankly admitted that he reduced the amount by some 25%, which he pulled out of the air, and was nothing more than an intuitive guess based on his experience. Mr Kirk has had limited experience in recent years in the area. Between 1973-1977, he was a rural valuer with the Australian Taxation Office, which included the north-eastern area. From 1977-1986, he was the district valuer employed in the Valuer-General's Office, which included the north-east region. I have no doubt that during this period, he was very well aware of the values of property in the area. However, since that date, he has pursued his business as a farmer, and has done three to four valuations since 1986, "to keep his hand in".

1616. He gave evidence that he allowed the sum of $65,000 for the wild dog problem, in reaching his value of the total farm project. In other words, he was of the view that if the wild dog problem had not been there, then the market value was $533,000 plus $65,000.

1619. Mr Kirk was asked the question as to the effect of the wild dog problem. He stated that he was aware that there was a wild dog problem because the property adjoined bushland, but went on to say, "There would be kangaroos and all wildlife, plus wild dogs. Now I considered all of that as a whole total detriment. Now, I subsequently looked at it and considered around about the effect on the property of the wild dogs, in my considered opinion is around about $65,000."

1622. He then went on to explain how he arrived at that figure. His reasoning is difficult to comprehend. He said, "Now, how I arrived at that is, as I've said about 55 per cent of the effect, the total write-down on the property, by being adjacent to that Crown land and the associated problems with it, that's how I arrived at that figure." He did not put the figure on at the time of his valuation. It was only after he was approached by the plaintiff's advisers that he gave thought to the question. He stated that the $65,000 was something he came up with over the last few days prior to giving evidence. Again, I have some difficulty with Mr Kirk's evidence. There does not appear to me to be any logic or evidence to support his views, other than his feeling as to the effect.

1625. His assessment of $65,000 was on the total value and taking into account his reduction of 25% for the alleged forced sale, the figure as at the date of the sale was $48,750.

1628. When one analyses the problem, it is difficult to determine what is a reasonable figure to reduce the value because of the wild dog problem.

1631. When the plaintiff's father acquired the property in 1945, it was mainly bushland and thereafter, was gradually cleared for grazing. As more and more of the property was cleared, the closer the grazing land got to Crown land. The land is surrounded on three sides by Crown land, the bulk of which is heavily forested. The fact of its relationship to Crown land, as Mr Kirk stated, has an effect upon its value. First, because the farmer is obliged to provide the fencing at his cost. There was no scheme in place prior to 1991 to enable the farmer to obtain a contribution from the Crown for fencing. Secondly, the high country around Corryong is a haven for many wild animals, including kangaroos, wallabies, wombats, rabbits and wild dogs. All these, in their own way, can represent a problem to the farmer. Kangaroos, because of their determination to strike down fences and to proceed onto grazing land, and urinating on grazing land, which has an effect upon cows in the paddocks; wombats destroying fences and creating burrows; rabbits, and to a lesser extent, wallabies. Of course, the danger of wild dog attack is always there. The value of the land could be increased by the provision of an electric fence right around the boundary. The cost of such an electric fence may provide some evidence of the difference in value of the property, due to it being adjacent to heavily forested Crown land.

1634. No evidence was called as to the cost of installing an electrified fence on the property as at July 1996. The Court suggested to the parties that an agreed costing of fencing should be obtained. However, the parties did not place any direct evidence before the Court. There was evidence from a number of sources as to the costs of installing an electric fence at particular times.

1637. In 1984, when materials were supplied to the plaintiff to install the fence on the northern boundary of the buffer zone, the government provided materials that were valued in the vicinity of $1,700. The plaintiff provided his own labour and over two years, erected a fence of approximately 1,365 metres on a boundary of about 1,820 metres. I have ascertained those figures from measuring the distance on the Title. He took two years to erect it.

1640. The plaintiff gave evidence that he put in about another $20-22,000 of his own cash to complete the fence. No records were produced in relation to this. I do not accept his evidence. He also opined the view that it would have cost him about $150,000 to fence the whole farm. I do not accept those figures either. His evidence suggested that he determined that figure back in 1984-86.

1643. Mr Kirk gave evidence that he allowed $8,000 for the cost of installing an electric fence when he made his valuation in 1994. That appears to be for completing the fence along the buffer zone.

1646. Another source of evidence came from Mr Patrick, who attended a meeting of land holders on 9 September 1987 where figures were quoted for a seven wire electric fence. The cost of the materials was between 80 cents to $1 per metre, and construction was $2.70 to $3.30 per metre. Taking into account the hilly nature of the top paddocks and the fact that some of the areas are forested, in my opinion, the reasonable cost of construction for the plaintiff's top paddocks would have been $4.30 per metre in 1987. This would have resulted in a cost in 1987 of approximately $1,956 to complete the boundary between the top paddocks and the Reference Area. Taking into account all the other boundaries, and doing the best I can from the Title particulars, there appeared to be about 5,057 metres of fencing to completely surround the balance of the property. At $4.30 per metre, this comes to $21,745.10, giving a total of $23,701 in September 1987 to completely install an electric fence. Whilst the evidence suggested that the increase in costs over the next nine years would have been small, I think some allowance should be made for increases in cost. In addition, the length of the fence would be greater because of the terrain, and there was another cost involved for clearing the fence line. This exercise seems to me to support Mr Kirk's evidence of $48,750 as being a fair assessment of the devaluation of the property due to the wild dog problem in July 1996.

1649. The State called Mr Sam Paton, a valuer, to give evidence. He did not give any evidence of the effect on the value of the top paddocks because of wild dogs attacking sheep. Evidence was neither led on this topic, nor was he cross-examined on it.

1652. No doubt if the State wished to, it could have called evidence on this topic. It did not do so. Even though I have some doubts about Mr Kirk's evidence in respect to a number of matters, nevertheless I think, on balance, the figure of $48,750 is the appropriate amount for the damages suffered by the plaintiff by reason of the continuing nuisance and negligent conduct on the value of the top paddocks.

1656. It was made clear by Dr Farquhar, in July 1990, that it was inappropriate that the plaintiff run sheep on the top paddocks. Taking into account the plaintiff's experience of dog attacks up to the date, together with the fact that he had suffered substantial losses in June and July of 1990, and the fact that Dr Farquhar informed him that he may expose himself to charges under the Prevention of Cruelty to Animals Act if he continued to run sheep, in my opinion, the decision made by the plaintiff to cease sheep farming on the top paddocks was a reasonable one in the circumstances. It is alleged that the plaintiff suffered losses by reason of the fact that he ceased to farm sheep.

1659. In accordance with the basic principles, the question is, if he had continued to run sheep on the top paddocks, would he have earned more income than he did when he ceased sheep farming and used the property for other purposes? This involves the exercise of determining what would have been the position if he had continued in sheep, compared with what actually did occur.

1662. Mr Monotti, on behalf of the plaintiff, submitted that the question of losses could not be divided up and that the whole of the plaintiff's business enterprise had to be taken into account. I do not accept that submission. What in fact happened was that the plaintiff ceased to be a sheep farmer but leased the top paddocks. He clearly had options to utilise the top paddocks other than for sheep farming. But his loss, if he did suffer a loss, is attributable to that fact and that fact alone. He continued to graze cattle and run his contracting business. He still had the farm. Whether there were any consequential losses is a matter for later consideration.

1665. The true position, as the plaintiff's later evidence established, was that he gradually disposed of his sheep over the next 12 months. He sold some for slaughter, sold others in the market, and moved some sheep to other areas. He derived income during the year 1990-91 from his sheep enterprise. Although it was suggested that he was forced to dispose of his stock at an inappropriate time, I am satisfied that he disposed of his stock in an orderly and proper manner during that year. It cannot be overlooked that at this time, the value of sheep was extremely low and the value of wool had decreased. On one view, it was not a good time to be in sheep farming.

1668. By 1 July 1991, for practical purposes, the plaintiff was no longer running sheep. That is strictly not correct, as he had a few sheep grazing elsewhere, but for present purposes, one can assume that he no longer has any income from sheep farming. The farm properties were sold in July 1996. Hence, if he did suffer any loss from not sheep farming, then the period in question was from 1 July 1991 to 30 June 1996.

1671. The evidence as to what the plaintiff did himself to derive income from July 1991 is somewhat vague, uncertain and inconsistent. It is difficult to know what the true position was. The financial documents reveal that he continued with his contracting business in the period from about October to February the following year. It is pertinent to observe that he made less income from this source during the financial year 1990-1991, substantially less for 1991-1992 and a large amount in 1992-1993. These changes no doubt reflected the rural scene and are relevant to the alleged consequential losses.

1674. But what else the plaintiff was doing from 1 July 1991 is difficult to determine with any degree of certainty.

1677. Some of the documentary evidence gives a clue.

1680. In April 1991, he leased the top paddocks for an annual rental of $20,000. But the tax return for the year ending 30 June 1992 reveals $15,000.

1683. What work he was actually doing during 1991-92 is somewhat uncertain. There is a tax return for 1991-92, but it is incomplete and very difficult to understand.

1686. It will be necessary to consider the income derived by the plaintiff after 1 July 1991, and the only real source of any information is the financial statements. The plaintiff himself was somewhat vague as to what he was doing other than that he continued his contracting business during the October-February period. However, as the financial statements show, he only earned some $6,438 for contract harvesting to 30 June 1992, compared with the three previous years during which he derived in excess of $40,000 per year. However, it is noted in that financial year that he earned $27,637 for hay, which compares favourably with the previous year at $14,101. It does not appear that during this period, he was seeking to derive income elsewhere. This is despite the fact that he had leased the top paddocks in April 1991 and was no longer running sheep.

1689. As I have already stated, whether he suffered a loss as a result of ceasing sheep farming depends upon determining what the position would probably have been if he continued in sheep, compared with what actually happened.

1692. The plaintiff's expert witness, Mr Pickett, did not produce an exercise which addressed those issues with respect to sheep farming. During final addresses, this was pointed out to the plaintiff's counsel. Mr Monotti later produced a summary, together with attachments, which purported to do the exercise. He submitted that the attachment to his submissions was in evidence, which was incorrect.

1695. Sometimes experts give evidence which is a summary of source documents. This form of evidence is permitted because the expert is doing what, in effect, the tribunal of fact could do by considering the facts, including the documentary evidence. See R v Mitchell [1971] VicRp 5; (1971) VR 46 at 59-60, and [1970] HCA 48; (1970) 44 ALJR 467 at 469. It follows that I, as tribunal of fact, could, if the evidence supported it, do an exercise to determine whether there was any loss.

1698. Having alerted Mr Monotti to the fact that I could seek to determine whether there was a loss from the evidence, he referred me to a number of exercises done by Mr Pickett, which would demonstrate the hypothetical financial position if he remained in sheep and the expenses attributable to the venture.

1701. In determining the hypothetical position, one starts with the past and seeks to determine what the future may have been. Usually, there is evidence from the farmer himself to explain the pattern of his farming and whether it was likely to continue into the future. There was no such evidence in the present case.

1704. Reference was made to attachment P15B to Mr Pickett's report which purported to set out, from 1 July 1989, what Mr Pickett thought would be the number of sheep run on the property each year. He ignored the actual figures for 1989-90 and 1990-91 and assumed in each year, from 1 July 1989 to 30 June 2002, that 200 sheep would be sold every year, 1,000 lambs would be sold every year, and that 1,020 sheep would be born each year. The problem with that approach is that it does not take into account the actual figures and proceeds on some theory put forward by Mr Pickett. The next attachment that was referred to is P15AB111. In that exercise, he sets out the actual figures for wool sales and sheep sales for the year ending 30 June 1990. However, in the following year, he produces figures which are not the actual figures for wool sales or sheep sales. In addition, his wool sales figure is $11,917, which compares with the tax return of $3,056. The tax return figure appears to be wrong because there is evidence found in an invoice, dated February 1991, where an amount of wool was sold for $7,457.55. Mr Pickett's evidence is a combination of actual figures and what he thought should have been the position if the farm had been conducted on a certain basis. His exercise is of no assistance when seeking to determine what level of income would have been derived by Mr Stockwell if he had continued to farm sheep from 1 July 1991.

1707. When one comes to the question of determining expenses due to sheep farming during the period from 1 July 1989 to 30 June 1992 to calculate the net return from sheep farming, the evidence does not enable the Court to make any assessment of expenses due to sheep farming.

1710. The expert called by the defendant, Mr Richard Garvey, prepared a summary of profit and loss statements for the plaintiff from 1 July 1982 through to 30 June 1993. According to the financial statements, the plaintiff derived, for the year ending 30 June 1990, $18,640 from sheep farming. This compared with $28,526 in the previous year. The explanation appears to be that the plaintiff sold less sheep during that year, and a consideration of his sheep numbers over a number of years demonstrated that during that year, he was building up his flock. His stock numbers on 1 July 1988 were 1,146, and on 1 July 1989 were 1,030, but by the end of that financial year, namely, 30 June 1990, he had 2,180 stock. He was able to purchase drought affected sheep very cheaply. To project ahead that he would always have a flock of some 2,200 sheep every year, is not quite borne out by the past.

1713. But when it comes to a question of determining what the net income from sheep farming was during the years 1989-91, it is practically impossible to work out the expenses. Mr Monotti referred to another exercise done by Mr Pickett, namely, attachment P14, and paragraph 3 of that exercise is headed "Estimated Operating Expenditure". However, that exercise is based upon what Mr Pickett thought was an appropriate sustainable farm business programme, and his estimated operating expenditure is precisely that. Mr Pickett's exercise covers the sheep cattle and contract businesses. When one goes to the actual figures, the expenses for the year ending 30 June 1989 are $73,982, and in the following year, are $96,384. For the year ending 30 June 1991, the expenses are $53,076. In giving those figures, I have excluded any expenses for interest. However, the figures demonstrate that Mr Pickett's exercise is a theory, based on what he thought was an appropriate farming business, as distinct from what actually did happen. By looking at the actual expenses revealed in the financial documents, whilst it is possible to reach a total figure, the amounts involved covered cattle, the contracting business, as well as sheep farming. It is very difficult, on the evidence, to determine what was the net income from sheep farming for the period 1 July 1989 to 30 June 1991.

1716. As against this, the evidence reveals that from April 1991, the plaintiff was receiving $20,000 for rental for the top paddocks. In this regard, the tax return reveals $15,000, but the actual lease shows $20,000. To 30 June 1992, there was a substantial increase in the income from haymaking of some $13,536. If the plaintiff was devoting his time and energy to making and selling hay, then that must be taken into account in determining the actual income he was receiving at the relevant period.

1719. On a very rough and ready basis, the amount that the plaintiff received from the leasing of the property in comparison with the years to 30 June 1990 and 30 June 1991, compares very favourably with what he was deriving from running sheep.

1722. The Court gave Mr Monotti the opportunity, after he had finished his final submissions, to provide a summary, based upon the evidence before the Court, which would support the conclusion that if the plaintiff had remained in sheep, he would have earned more money than he did by leasing the property and using his time to do other things. He leased the home paddock from 1 July 1993 for $10,880 per annum. The plaintiff was in receipt of $30,880 from leasing both paddocks by 30 June 1994, with very few expenses.

1725. Mr Monotti forwarded a summary, but it does not persuade me that the evidence enables the Court to infer that the plaintiff suffered any loss post 1 July 1991 to 30 June 1996 as a result of not farming sheep.

1728. The projected income from sheep, according to the summary, is based upon an exercise by Mr Pickett, which proceeds on a certain assumption as to the number of sheep that would be run in any one year. The income has been increased by 23.65% to take into account stocking the home block with sheep. This does not accord with the evidence. The plaintiff ran cattle on the home block. This cannot be overlooked. The home block was always available, post 1 July 1991, to operate in any way that the plaintiff thought fit. I do not accept that the marauding dogs represented a significant hazard to running sheep on that home block. Accordingly, the income should not be increased by that sum. But the projected income put forward by Mr Pickett in the exercise, proceeds on the assumption of a certain number of sheep in any one year. If the financial documents are analysed with respect to income derived from sheep during the years ending 30 June 1988, 1989, 1990 and 1991, the income derived was respectively, $40,474, $28,526, $18,640 and $8,338. The declining figures are, in the main, due to the downturn in the value of sheep during those years. If one combines the average value of a sheep and a lamb during this period, the result is $34.55, $36.38, $30.06 and $22.82 respectively. In the years ending 30 June 1991, 1992 and 1994, the value of the wool clip dropped dramatically. It was not until the financial year ending 30 June 1994, that the value of sheep and lambs improved substantially, and it was not until the year ending 30 June 1995, that the value of the wool clip improved substantially.

1731. I am not prepared to accept the exercise by Mr Pickett of the likely amount of income projected into the future. The only years where there were possibly good returns for sheep and wool were the years ending 30 June 1995 and 30 June 1996.

1734. Mr Monotti's summary also identified the expenses which were expected and which were to be deducted from the expected income, to determine the net return from sheep farming. These were taken from the financial statements. Mr Monotti identified animal health, freight and cartage, shearing expenses, fertiliser et cetera, and purchases of stock. Having identified those items, he extracted the figures for the years ending 30 June 1983 through to 30 June 1990, and came up with a total, which, when divided by the eight years, produced an average annual expenditure of $10,960. However, in my opinion, the expenses attributable to sheep farming would have also included fodder and baling, petrol, and general maintenance. By looking at the figures for the later years ending 30 June 1988 to 30 June 1991 for each item, and making some allowance for the fact that a proportion of the expenses would also be attributable to the cattle and petrol for the other business, in my view, an amount of $5,000 for fodder, $1,000 for petrol and $1,000 for general maintenance should be added to the annual expense bill, which gives a total of $17,960.

1737. When one considers, realistically, the level of income that most likely would have been derived from sheep grazing during the years ending 30 June 1992, 1993 and 1994, it is my opinion that the expenses would have reduced the projected income to a figure less than the income derived from leasing, first of all, the top paddocks, and later, the home paddock.

1740. For the years ending 30 June 1995 and 30 June 1996, the net return from sheep, in my view, would have been in the vicinity of about $30,000, give or take a few thousand, but during this period, the plaintiff was receiving $30,880 in income from renting the farm.

1743. I am not persuaded by Mr Monotti's summary that if the plaintiff had remained in sheep during the period from 1 July 1991 to 30 June 1996, he would have made any greater sum, after allowing for all expenses, than the amount that he derived from leasing the farm. In the end, the plaintiff has the burden of persuading the Court that there would have been a loss, and the exercise carried out by Mr Monotti overlooks important items, and involves a number of assumptions which, in my view, are speculative. Indeed, the exercise I have done suffers from the same problem because of the uncertainty of the evidence.

1746. It follows that the plaintiff has failed to establish any loss under this head.

1750. The plaintiff alleges that he has suffered depression as a result of the marauding dog attacks. The writ was issued on 27 July 1995. The statement of claim does not claim damages for personal injury. It was not until application was made in April 1999 that it was alleged, for the first time, that the plaintiff had suffered an injury. It was stated in the amended statement of claim, filed 20 September 1999, that the plaintiff "has suffered severe inconvenience, anguish and distress. The plaintiff's health and ability to engage in gainful employment has been affected. The full nature and extent of the plaintiff's personal injuries is yet to be ascertained and full particulars will be provided when available." No mention made of depression. I have already allowed damages for severe inconvenience, distress and annoyance, and the question is whether the plaintiff has suffered any compensable personal injury, albeit of a mental health nature.

1753. At the beginning of the trial, the Court requested particulars of damage, and it was asserted that the plaintiff has suffered and will continue to suffer "from personal injuries in the way of anxieties and depression". This was the first time that the allegation had been made in a pleading. The lateness of the plea raises questions as to causation and the alleged seriousness of the depression.

1756. The contention of the plaintiff is that as a result of the marauding dogs, he has suffered from anxiety and depression. Damages for anxiety, upset, distress and the like, are allowable in cases where they are a consequence of physical injury suffered. But that is not the case here. It is asserted that the plaintiff has suffered physical injury by way of depression. Damages are recoverable pursuant to s.23 of the Wrongs Act 1958. But the plaintiff does have to prove that the marauding dog problem was a cause of his depression. This is a question of fact. The lateness of the plea requires careful consideration of the issue. The test of causation is a common sense approach to the question.

1759. The facts reveal that by 1 July 1989, the plaintiff's property had been subjected to attacks each year, going back to 1982. I have no doubt that the attacks and their aftermath were a source of upset and distress to the plaintiff, and I have no doubt that he became angry and annoyed as a result. He also became somewhat obsessed by the problem and the fact that the government did not do anything to assist his particular problem. But in assessing damages, it is necessary to determine the alleged injuries flowing from the causes of action established on and post 1 July 1989. By this time, the plaintiff had been subjected to some seven years of attacks. There is no evidence of any depression at this time. The attacks ceased after July 1990. Still no suggestion of depression.

1762. The plaintiff gave evidence that by mid 1993, he was suffering from depression, as he called it. By this time, there were a number of pressures, frustrations and uncertainties in his life, which may explain his concerns. If one traces the dog problem, after July 1990, the plaintiff gradually removed his sheep from the top paddocks and there were no more dog attacks in the paddocks. The last attack was in July 1990. He leased those paddocks from May 1991 and at all stages thereafter, those paddocks were leased to another. Accordingly, there was no question of any dog attacks having an effect upon the plaintiff's health after July 1990. He also leased the home paddock from July 1993. By this time, he was no longer farming on his own farm. However, by early 1993, he was under considerable pressure from the banks to repay interest and instalments. He and Mrs Stockwell organised a museum for tourists in early 1993 and then, because of financial pressures, were forced to sell furniture and artefacts. No doubt, this was upsetting. He then ceased his contracting business. On any view, he was under considerable pressures at that stage. The banks had been demanding payment for some years, and on 20 March 1993, demanded that he pay outstanding arrears, which he promised to do upon the sale of the chattels and the plant. This he failed to do. Instead, he and his wife purchased another block of land and assumed an additional $100,000 mortgage debt. He and his wife not only failed to pay the bank, but lied to the bank about their interest in the new block. By reason of the sale, the plaintiff was unable to continue his contracting business. All these matters would no doubt cause anxiety to the plaintiff. For reasons which I state hereafter, the events of 1993 were not caused by sheep losses during the period 1 July 1989 to 30 June 1991.

1765. A number of doctors were called on behalf of the plaintiff to trace through his medical history. What is very clear from the medical history is that he was not, at any stage, referred to a specialist psychiatrist, and that his GPs, in later years, treated him for depression by the prescription of drugs. He was receiving visits from psychiatric nurses from time to time, but what they did and how often he saw them was not explored in evidence. None were called. Also, he had some difficulties in his marriage, which led to his wife leaving him in about April 1994 for three months. He was employed from about September 1996 for a year in a dairy farm, which was not successful, and he was most upset with the owner of the dairy farm. In addition, in July 1996, he was required to sell his farm under pressure from the Commonwealth Bank and Commonwealth Development Bank. On any view, he was under considerable pressures from about the middle of 1992. These were pressures which, in my view, were not connected to the dog attacks, but to his level of indebtedness and the difficulties associated with the downturn in the rural scene. In his own mind, the plaintiff is of the view that all of his problems can be traced back to the dog attacks, but the evidence does not support that view.

1768. The evidence revealed that the first attendance for anxiety symptoms were in July 1992, when he saw Dr Williams. He was treated for anxiety, said to be due to a court case. What that court case was, was not revealed.

1771. There were no attendances for nearly two years, until May 1994. In 1995, a moderate degree of depression was observed by Dr Williams, who described it as "less than severely depressed". Again, the depression was due to a court case. He was prescribed antidepressant drugs and was treated for the next seven to eight months for depression. Thereafter, from time to time, he was periodically treated for depression. However, there is a gap between September 1997 to 1998. There is no doubt that his mental condition in 1998 was affected by this case. It was noted in 1998 that he appeared less aggressive, and in the year 2000, it was noted that his depression was much improved.

1774. In addition, he had other causes of aggravation. During 1997, he had a dispute with an employer, by whom he was let down, and it was then that he was referred to the Wodonga and District Mental Health Service Team. However, no witness was called to give evidence from that service.

1777. One of the doctors accepted that the plaintiff was fixated with what he perceived to be his losses resulting from the marauding dogs, that he is currently adequately managed by medication and is fit for employment.

1780. In summary, the first diagnosis of depression is October 1994. A lot of events have occurred since then. He was not the subject of any marauding dog attacks since July 1990. On the other hand, some of his hopes and expectations had been dashed, namely, the conduct of an antique museum, and the forced sale of his chattels and plant and equipment because of bank pressure.

1783. It is in those circumstances, taking into account the lack of pleading, the lateness of the claim, and the lack of a referral to a psychiatrist, that the question arises, was his depression, as diagnosed in October 1994 and continuing, caused by the marauding dogs killing his sheep?

1786. All the plaintiff has to establish is that the nuisance was a cause of his depression. It does not have to be the sole cause or indeed the material cause. But it is necessary to prove, as a fact, the connection.

1789. Mr Healey, a psychologist, was called to give evidence on behalf of the plaintiff. He had not treated the plaintiff. He saw the plaintiff for three and a half hours on 24 August 2000. His diagnosis is, to a large extent, based upon what the plaintiff told him. Mr Healey stated that he read a letter from Dr Slane which, according to him, indicated that he was currently treating him for "major depression and anxiety".

1792. The clinical notes of Dr Slane do not describe the plaintiff suffering from "major depression". There is no doubt that he was suffering from a depression from at least October 1994. However, it appeared to be well controlled by suitable drugs.

1795. Testing by Mr Healey revealed, through personality testing, "distressed emotionality with depression, anxiety, significant social introversion/withdrawal and a paranoid trend." This was the testing as at the time of the visit, namely, 24 August 2000.

1798. Mr Healey concluded, "There is little doubt about the strong causal link between the series of traumata from mid 1980s to mid 1990s and his reduced, fragile emotional and mental states". His report summarises the many trauma over the whole period.

1801. The connection between wild dog attacks and his depression, which was observed from October 1994, depends very much upon the facts. The Court has had the benefit of observing the plaintiff giving evidence, his evidence and other circumstances bearing upon the issue, and time to consider the question over a lengthy period. Mr Healey observed depression in the year 2000. It was not until October 1994, some four years and five months after the last dog attack, that depression was first diagnosed. In between 1 July 1990 and August 1994, many disturbing and upsetting events had occurred, some of which, no doubt, would have had an effect upon the plaintiff's emotional state. He did not suffer depression during the years when the dog attacks occurred, although I accept he was extremely upset and distressed by them. But his claim is for an injury in the form of depression.

1804. The State had the plaintiff seen by a consultant psychiatrist, Dr Paul Kornan, on 21 March and 14 August 2001. The State did not call him as a witness.

1807. Accordingly, the Court can proceed on the assumption that if Dr Kornan had been called to give evidence, he would not have assisted the State's case, and secondly, the Court is entitled to more readily draw an inference from the evidence established on behalf of the plaintiff. The first reference to depression is on 14 October 1994, in notes written by Dr Hatch, and he wrote -

1811. Mr Healey expresses the view that, given the facts, there is a causation link between the various events and his depression. That may be so, but the question is whether the plaintiff has satisfied the Court, on the balance of probabilities, that the marauding dogs constituting the nuisance and the effect of the negligent conduct was a cause of his depression later diagnosed.

1814. Dr David Hunt who commenced to treat Mr Stockwell in 1999, gave evidence that he observed that the plaintiff was fixated on his loss "on what he perceived his losses to be, that he could talk of very little else."

1817. The plaintiff is a self-made man, who is determined and prepared to speak his mind when he thinks appropriate. He had a running battle with officers within the Department and at times, became extremely annoyed with them, and on occasions, threatened them. In my view, many of his symptoms are of a person who gets easily frustrated and annoyed.

1820. I am not persuaded that the marauding dogs and their effect upon the use of his lands, were a cause of the plaintiff's depression. In my view, there were a combination of factors which could not realistically be attributable to the dog attacks on his sheep, which ended in July 1990, for a depression which was observed well over four years later. There were many factors which could have been a cause of his depression. This is supported to some extent by the view expressed by Mr Healey that there was a strong causal link between a series of trauma from the mid 1980s to mid 1990s. But unlike Mr Healey, who had three and a half hours to obtain a picture of what occurred and to make his assessment, the Court has had the opportunity, over two months, of carefully considering the traumatic events which affected the life of the plaintiff from mid 1975 through to the sale of his properties in 1996. I do not accept that the nuisance and negligence, resulting from the conduct and omissions of the relevant employees of the State, was a cause of his depression first diagnosed in October 1994.

1824. The plaintiff has made a substantial claim for alleged consequential losses. It is put on his behalf, that the losses due to dog attacks resulted in the plaintiff having less income and as a result, he was unable to pay his debts as they fell due, causing substantial loss.

1827. First of all, it is contended that he had to sell his property by reason of the inability to pay his debts to the banks, and that this was caused by the marauding dog problem; that he was forced to sell his chattels, furniture et cetera, plus the plant and equipment he used in his contracting business, in 1993 because of the marauding dog problem, in that he had insufficient funds to pay his debts. It is said that he has lost the opportunity to conduct his farm and he has been unable to make money from farming and the contracting business. He claims a loss of income until he turns 70. It is said that all these losses were caused by the effect of the marauding dogs during the period 1 July 1989 to 30 June 1991.

1833. When it is observed that his total direct losses are somewhere in the vicinity of $7,000 as at 30 June 1991, the Court may be excused for viewing the claims with a degree of scepticism.

1836. The first issue concerns causation. Did the killing of his sheep by marauding dogs cause the failure of his businesses and the forced sale of his farm lands?

1839. In answering that question, it is necessary to bear in mind that the period of his claim is from 1 July 1989.

1842. It is necessary to look at his financial position as at that date.

1845. This issue is different to the question of remoteness of damage. See Chapman v Hearse [1961] HCA 46; (1961) 106 CLR 112 at 122. A tortfeasor is not liable for damage which is too remote, i.e. not reasonably foreseeable. The present issue is whether the tortious acts for which the State is responsible were a cause of the consequential losses claimed by the plaintiff.

1848. The question of causation in negligence cases was discussed by the High Court in March v E. and M. Stramare Pty Ltd & Anor [1991] HCA 12; (1990) 171 CLR 506. The issue of causation is a question of fact which is to be determined by applying common sense to a particular case. At p.515, Mason CJ said -

"The common law tradition is that what was the cause of the particular occurrence is a question of fact which 'must be determined by applying common sense to the facts of each particular case' in the words of Lord Reid: Stapley [1953] AC at p.681. ... It is beyond question that in many situations the question of whether Y is a consequence of X is a question of fact. And, prior to the introduction of the legislation providing for apportionment of liablity, the need to identify what was the 'effective cause' of the relevant damage reinforced the notion that question of causation was one of fact and, as such, to be resolved by the application of common sense."

1852. In the later case of Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408, Mason CJ, Deane and Toohey JJ said, at p.412 -

"In the realm of negligence, causation is essentially a question of fact, to be resolved as a matter of common sense. In resolving that question the but for test, applied as a negative criterion as causation, has an important role to play, but it is not a comprehensive and exclusive test of causation; value judgments and policy considerations necessarily intrude."

1856. In my opinion, the principles stated by the High Court also apply to a claim in nuisance.

1859. The question is a question of fact and in the present case, it is necessary to consider the relationship between the tortious acts and the events which led to the sale of the plaintiff's chattels and plant, the sales of his farmlands, and the cessation of his business. Then determine whether there is a connection which, on a common sense basis, leads to the conclusion that the tortious acts were a cause of the subsequent losses.

1862. In 1981, the plaintiff commenced his farming business. He ran sheep with a small herd of cattle. He did so from that date through until about mid 1991. At the same time, he conducted a contracting business, which involved him in acquiring and paying for expensive plant, machinery and equipment. In order to fund both ventures, it was necessary for him to obtain loans. However, the loans seemed to be raised primarily to enable him to purchase the expensive equipment used in his contracting business.

1865. It is necessary to consider his financial position as at 30 June 1989.

1868. According to the financial statements, the plaintiff suffered an operating loss of $48,310, operating a farming and contracting business that had a gross profit turnover of $100,824. This sum was made up of $43,117 for farming pursuits and $57,707 from his contracting business. However, his expenses totalled $149,236. His accounts revealed losses for all years from 1983 to 1989, save for 1984 and 1985. According to his financial statements, the net figures are as follows -

1873. He claimed tax losses for a period prior to 1981 up to 30 June 1989, and they totalled $261,914.

1876. By far, the greatest component of his expenses for the year ending 30 June 1989, comprised bank debts, personal loans, and hire purchase charges, totalling $56,405.

1879. His balance sheet revealed, for that year, net liabilities of $123,420, up by nearly $50,000 from the previous year. His total assets were revealed at $234,694 and his total liabilities were revealed at $358,114. Of his total liabilities, $347,350 were made up of bank overdraft, bank loans, other loans and hire purchase debt.

1882. It is said that the losses caused by the dogs, namely, the killing of sheep, which I have assessed at $2,068.85, together with the decrease in the wool clip, which I have assessed at $3,909.71, during the period 1 July 1989 to 30 June 1991, were a cause of his eventual selling up and cessation of his businesses. That is, the forced sale of chattels and plant in June 1993 and sale of farmlands in July 1996.

1885. By 1 July 1989, it is my opinion that the plaintiff was practically insolvent, was continuing to make substantial losses in his farming and contracting businesses and had done so for many years, and had no real hope of meeting the instalments and interest on his bank loans. Unfortunately for the plaintiff, he had obtained loans at a time when the prevailing rates of interest were in the vicinity of 18%. On any view, looking at his accounts to 30 June 1989, the inevitable result from continued trading was insolvency. In other words, an inability to pay his debts as they fell due. This conclusion, based as it is on his financial statements, is reinforced by the views expressed by his accountants two years earlier, on 18 March 1987. The plaintiff engaged Coopers and Lybrand at its Albury office, and the person who handled his accounts was his nephew, Mr C. Schrieber. On that date, he wrote a letter to the plaintiff. The first paragraph noted -

"The attached statement of income and expenditure indicates an accounts loss of $35,240 for the 1986 year. Whilst the cash loss may not be so large due to non-cash charges for depreciation and also due to stock differences, the enormity of the loss is of concern and requires your close attention. Such losses are increased by high borrowings and the associated high interest cost of approximately $10,000 pa. There is strong need to prevent further erosion of your equity in the farm and associated equipment, by turning the losses into profits. ... " (Emphasis added).

1889. A suggestion is made that he prepare budgets with the assistance of his nephew. The letter contained the following piece of wise advice -

"It is desirable to plan for the gradual reduction of external interest bearing loans to lessen the interest expense burden on your operations."

1893. The plaintiff did nothing in response to this letter.

1896. Despite the concern and advice given, the plaintiff continued to trade at a substantial loss, and the loss for 30 June 1987 was far greater than 1986. The loss in 1988 was greater than the loss to 30 June 1987.

1899. By perusing his financial statements, it is apparent that the plaintiff increased his indebtedness to the banks by raising money in order to buy new equipment for his contracting business. The plaintiff's evidence supported that conclusion.

1902. In the year to 30 June 1990, the plaintiff made $45,780 from his farming venture and approximately $98,000 from his contracting business. However, again, his expenses exceeded his income and he suffered an operating loss of $28,924. In that year, his liabilities increased by approximately $20,000. His loan commitments decreased down to $346,346, which was due in part to an injection of some $80,000 by reason of the sale of some real estate, together with $20,000 that his wife invested in the business.

1905. The State called as a witness, Mr Richard Garvey, a partner in K.P.M.G., who produced a report, being a review of the business operations of the plaintiff. His source materials were the financial statements and some documents which were placed in evidence.

1908. After considering the financial statements and analysing them, he opined the view that the plaintiff was experiencing liquidity problems from at least 1983, "[a]nd these continued to escalate through to the 1996 financial year." He opined the view, with which I agree, that it appeared that the plaintiff's business failed due to consistent significant trading losses and an inability to manage an excessive level of debt. He also observed, and I agree, that the ratio of external debts to assets was too high to sustain a viable primary production operation.

1911. The evidence established that since about 1987, the plaintiff failed to meet his financial obligations to his lenders, as and when they fell due, and applications for finance were frequently declined. The bank, from at least 1991, was requiring the plaintiff to reduce the size of his loans.

1914. The plaintiff ignored the advice given in 1987, and instead, continued to acquire plant and equipment. At a time when a reduction in assets and debt was required, he increased the size of his business and committed himself, in the late 1980s, to a debt level that he could not service.

1917. What happened after 1 July 1990 was that the plaintiff gradually removed the sheep from his top paddocks and disposed of them, leased the top paddocks in April 1991 for three years, at a rental of $20,000 per annum, and retained the home property, which he subsequently leased on 1 July 1993 at an annual rental of $10,880 per annum. He continued in the meantime to conduct his contracting business, which usually ran from about October to the following February of each year and which derived a substantial amount of income. But the sale of the plant put a stop to that business after 1 July 1993. However, by the beginning of 1993, the Commonwealth Bank was demanding that he attend to paying the interest and instalments overdue on his loans.

1920. In March 1993, a meeting occurred between representatives of the Commonwealth Banks and the plaintiff and his wife, assisted by a finance adviser. The banks made it very clear that he had to pay the arrears. He agreed that he would do so by selling his furniture and chattels, and his plant and equipment. He promised to pay off his arrears and reduce his level of indebtedness to the banks. If he had done so, there was a prospect that he could have managed his indebtedness. He did in fact sell his furniture and chattels, and his plant and equipment in mid 1993. He did not pay the banks. The moneys were used by him to assist his wife to jointly purchase the property known as Gibsons, which is next door to the home property, for $143,000. A mortgage of approximately $100,000 was obtained for the purchase. By increasing his level of indebtedness, he exacerbated his financial position. A decision had been made by the plaintiff and his wife that they would not pay any interest to the Commonwealth Bank, and they did not do so thereafter. As a result, his interest was capitalised and as at 30 June 1994, his loans totalled $567,549. In my opinion, the increase of the plaintiff's indebtedness by over $100,000 in the 1994 financial year meant that he was unable to pay his debts as they fell due and it was inevitable that he had to sell the farming properties.

1923. The losses which the plaintiff suffered, arising from the marauding dogs killing sheep from 1 July 1989 to 31 July 1990, caused a reduction in his income of about $6,000. I am not persuaded that the cessation of the sheep farming caused him such a loss of income that it brought down his business enterprises. The cause of the sales of the chattels and furniture, plant and equipment in 1993, and the sales of the farmlands in 1996 were caused by the level of indebtedness which had been established by 1 July 1989 and which was crippling, and was exacerbated by the plaintiff failing to reduce the indebtedness in 1993. Instead, he took on another mortgage with his wife for a sum of slightly in excess of $100,000. Proceeding on common sense principles, the tortious acts committed by the relevant employees of the State did not cause the consequential losses claimed by the plaintiff.

1926. In addition, even if the losses were caused by the said tortious acts, in my opinion, the damages were too remote. In other words, they were not reasonably foreseeable.

1929. In Wagonmound (No. 1) (1961) AC 388, the Privy Council held, in negligence claims, that a tortfeasor is not liable for damages unless the damage "is of such a kind as the reasonable man should have foreseen" - see p.426. Their Lordships emphasised that liability does not depend solely on the damage being the direct or natural consequence of the act or omission, but must also satisfy the test that the damage is reasonably foreseeable.

1932. In Wagonmound (No. 2) [1966] UKPC 1; [1967] AC 617, the Judicial Committee held that the same principle applied to a claim in nuisance. At p.640, the Judicial Committee said -

"It is not sufficient that the injury suffered by the respondent's vessels was the direct result of the nuisance if that injury was in the relevant sense unforeseeable."

1936. Recovery of damages in private nuisance and negligence depends on the plaintiff showing that a relevant employee of the State would have, as a reasonable person, foreseen that the commission of the tort, would have caused the relevant damage, i.e. the forced sale of his chattels, plant and equipment, the forced sale of his farmlands and the loss of both his farming and contracting businesses.

1939. In my opinion, the reasonable person, placed in the position of the relevant employee of the Crown in the period 1 July 1989 to 31 July 1990, would not have reasonably foreseen that the killing of 150 sheep and lambs during that period would have resulted in the financial destruction of the plaintiff. The plaintiff fails to establish that the damages were not too remote.

1942. The plaintiff has failed to establish any claims for his consequential losses.

1946. It follows that the plaintiff has proven the following damages -

Any additional expenses attributable to attempting to abate the nuisance and effects of the negligent actions -

Inconvenience, upset and anxiety brought about by commission of wrongful acts -

Devaluation of property due to continuation of nuisance and wrongful acts -

1952. The plaintiff has claimed aggravated and/or exemplary damages.

1955. In order to recover aggravated damages, it would be necessary for the plaintiff to establish that one or more of the relevant employees who were guilty of the tortious acts, had behaved in a way which aggravated the damages.

1958. In Oldham v Lawson (No. 1) (1976) VR 654 at 659, Harris J considered whether a court could award aggravated damages in a case of nuisance. Usually, aggravated damages are awarded to compensate for insult or loss of dignity suffered by the plaintiff as a result of the tort, and are awarded in causes of action such as trespass to the person and defamation. However, there is no reason why aggravated damages could not be awarded in a negligence case because of, for example, the outrageous conduct of the defendant causing the injury. Further, I do not see why aggravated damages could not be awarded in a nuisance claim in respect of general damages. However, the conduct would have to be of such a high-handed nature that it merited aggravated damages. See Oldham v Lawson, supra, at p.659.

1961. Mr Monotti, when pressed in final address to identify particular employees of the State who acted in a high-handed manner, or as is sometimes said, in "contumelious disregard" for the plaintiff's rights, named a number of employees who, he submitted, fell into that category. I indicated at the time that, in my view, there was no basis whatsoever for making such allegations against these employees. In my opinion, there is absolutely no evidence to suggest that any relevant employee of the State, who was responsible for the commission of the torts in question, acted in a manner which was high-handed or in a way which was in contumelious disregard of the plaintiff's rights. A view was taken, by these employees, that the Reference Area was to be treated no differently from any other Crown land and to give effect to the purpose of the area. Their views were supported by other officers in the Department. They were wrong in adopting that approach. But not for one minute could it be suggested that they acted in a high-handed manner in reaching that conclusion. Indeed, all the evidence, including the evidence from the plaintiff, is that when he did make a complaint, he did get a response from the local dogman, and on the occasion in 1983 and 1987 when he made a number of very strong complaints, the Department and its employees responded in an endeavour to meet his concerns. In 1983, Mr Holmes responded by obtaining an ex gratia grant for the provision of materials for an electrified fence. In 1987, Mr Patrick put in place a number of measures aimed at alleviating the dog problem.

1964. Aggravated damages could only be awarded in relation to general damages, and there was only one head of general damages. In my opinion, the plaintiff has failed to establish any basis for aggravated damages.

1967. Having made my position very clear to Mr Monotti, in final address, that unless there was a good basis for alleging that any of the relevant employees had behaved improperly and in a high-handed manner, then he should not be making the allegation, Mr Monotti withdrew the claim for exemplary damages. In my opinion, there was not a scintilla of evidence which would form the basis for exemplary damages, and Mr Monotti, very wisely, withdrew what was a baseless claim.

1971. The defendant has pleaded contributory negligence against the plaintiff. Particulars are as sub-joined to the paragraph alleging contributory negligence, and there are, in effect, two allegations; first, the failure to erect an electric fence around his property, and secondly, forbidding the defendant's employees passing through his property for the purpose of trapping wild dogs in the Reference Area. I can dismiss the second allegation. The plaintiff refused permission in 1990, but, in my view, it was open to the defendant's employees to enter into the Reference Area from other points, namely, the Nariel Gap Road. By this time, in any event, the plaintiff had suffered damage, although it was continuing, and his refusal did not aggravate the damage.

1974. The first allegation is more serious. The facts reveal that between 1984-86, the plaintiff, using materials supplied by the State, erected an electrified fence. There is no doubt that the fence was a good sturdy fence and, at all relevant times, was in good condition. However, the fence only ran approximately two-thirds the length of the southern boundary of the hill paddocks and the buffer zone. This meant that dogs could get around either end of the fence. On the eastern side of the plaintiff's property, there had been a cattle fence, but he had removed it some time around 1986 in anticipation of extending the electrified fence. Hence, there was no real obstacle to dogs entering the top paddocks.

1977. Any farmer whose land adjoins Crown land knows, and the plaintiff knew, that there was always the risk of feral animals coming into his property and causing damage. The feral animals were not confined to wild dogs. He knew as early as 1981, and before he took over the farm, of the risk of marauding dogs doing real damage to his flock. Any farmer in the plaintiff's position would have known that it was essential to erect boundary fences, and if the farmer sought to exclude wild dogs, it was necessary to electrify the fence. By not having any boundary fence, this meant that feral animals, including wild dogs, could enter the property without obstruction. That was the position at the beginning of July 1989 and remained so right up to the date the plaintiff sold his land, in July 1996.

1980. The effect of the failure to fence was that there was no obstruction to the marauding dogs coming into his property. He knew up to 1 July 1989, by his experience of attacks, that there was the real risk that dog attacks would occur and would kill some of his sheep.

1983. Part V of the Wrongs Act 1958 deals with contributory negligence, and covers both the claim in negligence and in nuisance. Indeed, counsel did not argue to the contrary.

1986. The law recognises an obligation resting upon a plaintiff to exercise reasonable care for his own safety and that of his property. If a plaintiff fails to take reasonable care for his own safety, property or interests and that lack of care is a cause of the incident which caused the loss or has contributed to the harm, the plaintiff is guilty of contributory negligence. Contributory negligence is not a defence, but results in an apportionment of responsibility leading to a reduction in the amount of damages.

1989. The burden rests upon the defendant to prove contributory negligence, and the issue is one of fact.

1992. The defence not only relates to acts or omissions which contribute to the wrongful act, but also concerns a failure to exercise care, which contributed to the extent of the harm resulting from the wrongful act. A classic example of this is the failure to wear a seatbelt or wear a crash helmet. See O'Connell v Jackson [1971] EWCA Civ 5; [1972] 1 QB 270 and Froom v Butcher [1975] EWCA Civ 6; [1976] QB 286. These failures may have a bearing on the extent of the injury. The defendant has to prove that the failure to take reasonable care by the plaintiff contributed to the loss, i.e. that there was a causal link.

1995. The standard of care which must be exercised by a plaintiff is tested on an objective basis. If contributory negligence is established, the tribunal of fact must apportion responsibility.

1998. Section 26(1) of the Act provides the test that is to be applied, namely -

"The damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share and the responsibility for the damage." (Emphasis added).

2002. The cases have established a number of factors which are relevant to the apportionment exercise. First, the issue of culpability, i.e. the degree of departure by each of the parties from the standard expected of the reasonable person. See Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10. Another relevant factor is the relative importance of the acts of the parties contributing to incidents or the damage. See Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALR 529.

2005. As a general proposition, it is a question of making an assessment of the culpability of both parties and their contribution to the harm which has been caused.

2008. The question is what should the plaintiff have done, as a reasonable person, knowing all relevant facts as at 1 July 1989, to protect himself from harm resulting from wild dog attacks on his sheep? He was obliged to take reasonable care to protect his own interests. The State submits that he should have installed an electric fence right around the boundary of his top paddocks.

2011. Mr Monotti submitted that the installation of such a fence would not have stopped marauding dogs. There was some evidence that despite an electric fence, wild dogs could enter a paddock. I accept that that can happen. But the overwhelming evidence was that a properly maintained and operating electric fence will deter wild dogs. Evidence from those who had experience with an electric fence, showed that dogs tended to avoid properties surrounded by electric fences and move to another area where the fences were not electrified.

2014. I think that the installation of an electric fence around the boundary of the plaintiff's top paddocks would have reduced the risk of harm from marauding dogs. It has to be recognised that such a fence will not guarantee 100% protection, but it will provide an effective barrier. Wild dogs are not owned or controlled by anybody, they do as they wish, and no matter what steps are taken, whether it be by employees of the Crown or farmers, one can never prevent the possibility of a wild dog attack. But both employees of the Crown and farmers do have an obligation to take steps to minimise the risk.

2017. This brings me to what the reasonable person, knowing all the relevant facts, should have done on and after 1 July 1989.

2020. The evidence relating to the cost of the installation of a fence is sparse. I have already summarised it when determining the damages in respect to the value of the land subject to dog attacks.

2023. I find that the cost of installing a complete fence around the property, during the period from 1 July 1989 to 30 June 1991, was in the order of $23,701. This would be a minimum, taking into account increases in cost, clearing the fence line and the terrain.

2026. During the period 1 July 1989 to the end of July 1990, there was no scheme in place for assistance for the erection of such a fence. Hence, the plaintiff, during the period from 1 July 1989 through to 31 July 1990, would have had to carry the total cost himself. Further, the decision to install an electric fence is very much influenced by the economics of the exercise. The question is, loss of sheep and their cost of replacement versus the cost of the fence and maintaining it. I am satisfied on the evidence that at least a half day a week, and maybe longer, would be required by a farmer to maintain the fence in proper working condition.

2029. Some farmers called observed that the economics did not justify the outlay.

2032. This view was recognised by counsel for the State in the proceeding, who cross-examined the plaintiff, suggesting that it was not an economic proposition to completely surround his farm with a dog proof electrified fence. This was also recognised, in my view, by the actions of Mr Holmes in 1984 when, in answer to the complaints and agitation by the plaintiff, he took steps to arrange a subsidy to assist with the erection of a fence. It was recognised, at that point, that a farmer could not be expected to provide the total cost himself.

2035. In my opinion, the reasonable person in the shoes of the plaintiff, on and after 1 July 1989 through to the end of July 1990, would not have installed an electric fence in the circumstances, and, in my opinion, the failure by the plaintiff to do so during that period did not amount to contributory negligence.

2038. This brings me to the position post 31 July 1990. In April 1991, the plaintiff had leased the top paddocks. A subsidy had been discussed and considered by the Department from at least 1987, but the scheme was not put in place until early 1992. Subject to certain conditions, a land holder could obtain financial assistance from the Department to erect an electric fence. Indeed, during this period, the plaintiff and his wife raised the issue with members of the Department.

2041. Given that there was a subsidy available, and given that the value of the top paddocks was affected by the possibility of dog attacks if sheep were run on the top paddocks, should the plaintiff, as a reasonable person, in order to take steps to protect his own interests and minimise his loss, have applied for a subsidy and installed an electric fence on the top paddocks? This would, for reasons which I have already stated, have had an effect upon the value of the top paddocks.

2044. The plaintiff was contemplating erecting a fence in January 1990 when he sought permission to clear the fence line, which permission was granted to him. Further, on 15 August 1990, his solicitors wrote a letter to the Department at Wodonga, asking for assistance to fence the remainder of the adjoining boundary. In response, the Department informed the solicitors that Mr Stockwell had been recently advised of assistance levels available through the Land Protection Incentive Scheme and that any application by him would be favourably considered. In July 1991, a senior member of the Department in the area, advised the plaintiff that electric fencing for wild dog control is only implemented on a group basis, that is, with neighbouring properties. The assistance was at 30 cents per metre, providing funds were even available from the Department. On any view, the scheme was hardly generous, was subject to available funds, and depended upon co-operation with neighbours. The financial contribution would have come to about $1,653, compared with an outlay in excess of $23,701. The assistance was of little practical effect.

2047. In 1993-94, the Department was providing assistance, being half of the contribution to materials, and also to assist clearing the line. However, the level of assistance, the conditions of same and whether the assistance was of any real benefit to the plaintiff, was not established.

2050. Given the circumstances, in my opinion, the plaintiff was acting reasonably in not outlaying the large sum of money which he would have had to do in order to completely fence his property, taking into account the obligation of the employees of the Department to suppress vermin in the Reference Area. In my opinion, he was acting reasonably throughout, and the defendant has failed to establish that the plaintiff was guilty of any contributory negligence.

2054. It follows that the plaintiff is entitled to succeed and recover the sum of $60,047.56

2057. I will hear the parties on questions of interest and costs.