RAKUSAN v COSIER AND ORS [1992] NSWCA 200

RAKUSAN v COSIER AND ORS SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

GLEESON CJ, MAHONEY and MEAGHER JJA 21 September 1992, 21 September 1992

[1992] NSWCA 200

Administrative Law — Judicial review on ground of defective exercise of power — alleged failure of Magistrate to give adequate reasons Animals — Prevention of Cruelty to Animals Act 1979 — Magistrate's determination of facts.

Gleeson CJ The appellant seeks leave to appeal from a decision of Abadee AJ, ashis Honour then was, given in the Common Law Division on 4 May 1990.

The matter came before his Honour primarily by way of a stated case under s101 of the Justices Act. The amended summons also raised certain other claims for declaratory and prerogative relief but for reasons given a little earlier this morning the appellant does not now pursue those claims and they can, for present purposes, be disregarded.

The stated case arose in the following circumstances. There are three respondents to the proceedings, Mr and Mrs Cosier and a Magistrate. The Magistrate has taken no active part in the proceedings and it is unnecessary to make further mention of his role in the litigation before Abadee AJ. Mr and Mrs Cosier carried on the business of graziers in 1986. During a drought that occurred in that year they received a visit from the appellant who was an officer of the Royal Society For The Prevention of Cruelty to Animals. The appellant contended that the respondents were guilty of cruelty to some of their sheep and that they failed to provide proper food for their sheep. The alleged acts of cruelty and failure to provide proper food occurred between May and July 1986.

The appellant laid informations against the respondents, prosecuting them under certain provisions of the Prevention of Cruelty to Animals Act 1979. There were six informations in all; some related to allegations of cruelty to three particular sheep and others related to failure to provide proper food to 2,000 sheep. The total number of sheep on the respondents' property in 1986 was about 7,000.