Denny v RSPCA NSW [2021] NSWSC 766

Supreme Court New South Wales

Medium Neutral Citation: Denny v RSPCA NSW [2021] NSWSC 766 Hearing dates: 25 June 2021 Date of orders: 25 June 2021 Decision date: 25 June 2021 Jurisdiction: Common Law Before: Harrison J Decision: Summons dismissed with costs. Catchwords: INTERLOCUTORY RELIEF – application for stay – where plaintiff has not demonstrated any arguable basis for her summons seeking urgent stay of proceedings to prevent sale or disposal of 42 horses pending outcomes in Court of Appeal – where orders made by Judge of the District Court, restraining plaintiff from purchasing, acquiring or having custody of more than five horses for a period of five years, still apply – summons dismissed Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW) Prevention of Cruelty to Animals Act 1979 (NSW) Category: Principal judgment Parties: Janice Louise Denny (Plaintiff) RSPCA NSW (Defendant) Representation: Counsel: M Higgins (Defendant)

Solicitors: RSPCA NSW (Defendant) File Number(s): 2021/157090 Publication restriction: Nil

Judgment 1. HIS HONOUR: These proceedings came before N Adams J on 2 June 2021 in the Duty Judge List when Ms Janice Denny sought urgent interlocutory relief staying an order made by Magistrate Dick in the Local Court at Bega on 12 May 2021. On that day, Magistrate Dick ordered that the ownership of 42 horses, seized by police and the RSPCA on about 20 September 2020, be transferred to the RSPCA prior to the finalisation of criminal charges pending against Ms Denny under the Prevention of Cruelty to Animals Act 1979. I am led to understand that those criminal charges are to be heard on 30 and 31 July 2021. 2. Ms Denny has been convicted on a number of occasions of offences contrary to the Prevention of Cruelty to Animals Act arising out of the care provided by her to horses that she has owned in her own right or jointly with others. Significantly, and relevantly for present purposes, Haesler SC DCJ made an order on 8 September 2016 under s 31(1)(b) of the Act that Ms Denny was not to purchase, acquire or have custody of more than five horses for a period of five years. That period expires on 7 September 2021. Ms Denny has indicated that she has sought a review of that order. When that review was sought, or on what grounds, has not been made clear in the evidence before me. 3. Ms Denny was also charged with further offences of not looking after 42 horses and ponies seized from her by the RSPCA between 20 and 24 September 2020. Ms Denny was separately convicted in relation to her treatment of four other horses. Her appeal against that conviction was heard by Noman SC DCJ in May this year. That appeal was unsuccessful. Her Honour convicted Ms Denny and made an ancillary order under s 31(1)(b) and (c) prohibiting Ms Denny from owning any horses for a period of five years. 4. The terms of the order sought by Ms Denny in this Court are as follows: "Urgent injunction/stay To prevent sale or disposal of 42 horses subject to disposal application granted by Local Court on 12 May 2021 prior to substantive matter being heard." 1. N Adams J made the following orders on 2 June 2021: 1. Ms Denny is to file a summons for judicial review in the Court of Appeal setting out the basis of jurisdictional error in relation to which it is said Judge Noman fell into error no later than Friday 11 June 2021. A copy is to be filed with the Court of Appeal Registry but also provided to Ms Jurd at the RSPCA. 2. Stand the matter over for further directions on 25 June 2021. 1. As explained to Ms Denny by N Adams J on that occasion, there is a futility in any court staying the orders of Magistrate Dick that the 42 horses be transferred to the RSPCA because, in light of the orders made by Noman DCJ, they can never be returned to her in any event. Ms Denny's response, in the events that have occurred, is that she has now complied with her Honour's orders and has filed a summons in the Court of Appeal seeking leave to appeal from the decision of the magistrate as well as a summons commencing an appeal seeking to set aside the decision of Noman DCJ. In the latter case, Ms Denny seeks orders on the following grounds: "(1) Applying s 53(3)(b) Crimes (Appeal and Review) Act 2001 under a question of law and gross miscarriage of justice. (2) No proper evidence was tendered by legal representative at hearing – inappropriate representation. (3) In reference to 1 and 2 above grounds for judicial review is pending upon Justice Adams has sought expedition of the provision of the transcript of 24, 25, 26 May 2021 before Judge Noman before the Nowra District Court, including her judgment." 1. When the matter was before N Adams J, the RSPCA undertook not to dispose of the horses until today. The RSPCA has not offered today to renew that undertaking. 2. Although, as N Adams J made clear on the last occasion, she had no power or jurisdiction to order a stay for the reasons she articulated, her Honour quite wisely and fairly approached the matter upon the basis that she would give Ms Denny an opportunity to demonstrate, if she could, that she had a fairly arguable case for relief in the Court of Appeal. It was, I assume, also on that basis that the RSPCA was prepared, for a short time, to refrain from disposing of the horses in its care and control. 3. Having now had the opportunity to consider Ms Denny's application for orders in the Court of Appeal, it does not seem to me that she has demonstrated the existence of any fairly arguable basis for the grant of the relief that she seeks. The errors that Judge Noman is alleged to have made are not identified. Bare references to "judicial error" or "gross miscarriage of justice" are insufficient. Nor is a complaint that Ms Denny's legal representation at the time was "inappropriate", whatever that may be intended to convey in the present context, sufficient to establish the existence of a viable claim for relief in the Court of Appeal such that a stay would be warranted. 4. There is another problem. The orders made by Judge Haesler continue to apply. Even if Ms Denny had commenced some as yet unparticularised application to vary or set aside those orders, no such orders have yet been made and, from where I sit, the prospect of success for any such application would not seem to be great. 5. Ms Denny has the right to make such an application to the Court of Appeal as she may be advised, seeking a stay pending the determination of her proceedings in that Court. Nothing I have said should be taken to derogate from the force of any submissions Ms Denny may wish to make in that Court in aid of a contention that a failure to grant her a stay would have the potential to frustrate her appeal or render it futile. 6. Ms Denny's summons filed on 1 June 2021 does not articulate any claim for relief other than the stay to which I have referred. In those circumstances, in my opinion, the summons filed on 1 June 2021 should be dismissed with costs.