Stockwell v State of Victoria [2001] VSC 497

Supreme Court of Victoria|2001-12-17|Before: Gillard J

ANIMALS - wild dogs - liability of land holder for nuisance on adjoining land. SUING CROWN - liability of employers. PRIVATE NUISANCE - liability for wild dogs killing sheep - Crown land - Reference Areas Act 1978 - employees in control of area - responsible for management - measured duty of care to abate nuisance. NEGLIGENCE - duty of care owed - by persons in control of area to adjoining land holders - measured duty of care. STATUTORY DUTY - Vermin and Noxious Weeds Act 1958 - no cause of action for breach . DAMAGES - nuisance and negligence - no contributory negligence.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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."

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.

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.

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.

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.

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.

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).

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.

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

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.

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.

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

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.

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.

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.

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.

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.

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.

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.

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.

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

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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."

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.

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.

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."

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".

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."

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.

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.

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.

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.

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.

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."

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.

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.

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.

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.

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.

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.

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.

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."

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."

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.

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

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.

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.

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.

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".

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.

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.

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.

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.

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.

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

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".

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".

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.

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.

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.

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.

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.

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.

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

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."

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.

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.

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."

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.

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'."

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.

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

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.

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).

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."

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.

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.

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.

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.

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."

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".

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."

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

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."

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."

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.

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.

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.

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.

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

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.

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.

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.

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.

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.

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.

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.

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.

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.

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

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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

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.

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.

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.

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.

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

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.

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.

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.

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.

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.

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.

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.

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."

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.

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.

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.

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.

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."

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

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.

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.

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.

In March 1991, he sold approximately 630 sheep.

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.

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

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.

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.

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.

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.

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.

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.

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Cases Cited (18)