Animal Liberation Ltd v National Parks & Wildlife Service [2003] NSWSC 457

New South Wales Supreme Court

CITATION : Animal Liberation Ltd v National Parks & Wildlife Service [2003] NSWSC 457 HEARING DATE(S) : 22, 23 & 26 May 2003 JUDGMENT DATE : 26 May 2003 JURISDICTION: Equity JUDGMENT OF : Hamilton J DECISION : Interlocutory relief granted for finite period.

CATCHWORDS : EQUITY [338] - Equitable remedies - Injunctions - Interlocutory injunctions - Balance of convenience - Duration and scope of proposed injunction - Availability of early final hearing. CASES CITED : Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 PARTIES : Animal Liberation Limited (P) Director General of National Parks and Wildlife Service (D) FILE NUMBER(S) : SC 2908/03 COUNSEL : G F Jauncey (P) P R Whitford (D) SOLICITORS : Friend & Co (P) Vivienne Karin Ingram (D)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

MONDAY, 26 MAY 2003

2908/03 ANIMAL LIBERATION LIMITED v DIRECTOR GENERAL OF NATIONAL PARKS AND WILDLIFE SERVICE JUDGMENT 1 HIS HONOUR: This has been a hard fought application for an interlocutory injunction. I have not found it easy to decide. The application is to restrain the proposed carrying out by the defendant of a shoot from a helicopter for the purpose of culling feral goats in the Woomargama National Park. The case sought to be made out by the plaintiff is that shooting goats from a helicopter is likely to cause cruelty to the animals, contrary to the statute on that subject matter. The way the cruelty may be caused is that if animals are shot and only wounded, they may be left to suffer for some perhaps protracted period before dying and that the chance of discovering that animals are wounded only and administering a coup de grace are less if the shooting is from a helicopter. 2 The medium which the plaintiff has used in its attempt to create an arguable case that the shooting as proposed is likely to cause cruelty to animals is evidence concerning a shoot of feral goats that took place on Lord Howe Island during 1999. After that shoot, some inhabitants of the island went and examined the bodies of dead goats and took photographs. Those photographs were examined by Dr Kevin A P Lee, a forensic pathologist. Dr Lee expressed a view from what he saw in the photographs that some of the animals showed clear signs of movement and others no visible evidence of any injury, which he found was strongly suggestive that not all had been killed immediately by shots received. He also found that there was no evidence of any finishing up or coup de grace shots on the animals depicted. 3 The plaintiff asserts that there is an arguable case on the evidence that the defendant conducted or was associated with that shoot. The defendant has conceded, for the purposes of this application only, that the plaintiff has standing to bring the proceedings and make the application. As I understand it, it has not been contended on his behalf that there is not a potential in the shooting of feral goats from a helicopter for the occasioning of cruelty in the manner outlined if the shoot is not properly conducted. The defendant has contended, however, that not even an arguable case of cruelty in the case of the Lord Howe Island shoot may be inferred from the photographs tendered or the report of Dr Lee. He has also contended that, even if there is an arguable case that there were circumstances of cruelty on that occasion, that that shoot had nothing whatever to do with him but was conducted by the Lord Howe Island Board. He says that, in any event, even if there were an arguable case of cruelty in the circumstances of that shoot, from the evidence that has now been led before me as to how the proposed shoot in the Woomargama National Park is to be conducted I should infer that no arguable case has been made out that it could be regarded as potentially causing cruelty. Furthermore, it has been argued that the Court will not intervene or certainly not intervene in these circumstances to restrain the head of a statutory agency, which is part of the executive government, from carrying out his undoubted duty to manage national parks and to do so in the way that he deems fit. He relies among other things on a presumption of regularity to lead to the conclusion that the shoot will be conducted in a due fashion, that is, a fashion not involving unnecessary cruelty. Mr Whitford, of counsel for the Director General, has put the submissions on his behalf with his usual cogency and succinctness. 4 I am of the view that an arguable case is shown on the material relating to the Lord Howe Island cull of the potential for shooting from a helicopter to inflict cruelty on the animals to be culled. It seems to me that there is an arguable case on the material led before me that on that occasion some animals were neither killed immediately nor quickly finished off after being wounded. 5 It is clear on what material is before me, bearing in mind at all times that the application was conducted in haste and neither side had time to present a developed case, that it is not established that that cull was conducted by the Director General, but rather by the Lord Howe Island Board. However, I do not accept the assertion on behalf of the Director General that the Director General had absolutely nothing to do with that cull. It is plain from the material before me that the Director General has a representative on the Lord Howe Island Board and that the National Parks and Wildlife Service was consulted concerning that cull both before and after it. Furthermore, when complaints were made to the Minister concerning the satisfactoriness of that cull, it was answered on behalf of the Minister by the Director General. It was suggested by counsel for the defendant that it could be inferred that that was solely because the Minister administering the Lord Howe Island Act and the Minister administering the National Parks and Wildlife Act were the same Minister and that it was simply convenient to have the Director General to write. I do not accept that this is so. But, even if it were, the Director General expressed certain views in the letters which were written. In whatever capacity he was writing I would infer that he believed in the correctness of the views he expressed and that they were held by him in his capacity as Director General as well as in any other capacity. 6 I should reiterate at this point that this is an interlocutory application conducted urgently on exiguous evidence. I should not be taken as making any firm finding that the Lord Howe Island cull was conducted in circumstances that caused unnecessary cruelty, nor shall I be making any firm finding that the evidence indicates that cruelty will actually be inflicted by the cull approved by the Director General, if permitted immediately to be carried out. The question is whether there is any arguable case to that effect. In an application for an interlocutory injunction I must balance the case sought to be made out and, if it is an arguable case, its relative strength against other considerations such as the balance of convenience, that is to say, the harm that will be suffered if the cull is carried out immediately and the plaintiff's case be found to be correct in the long run, as against any damage that will be suffered by the Director General if not allowed to carry out the cull immediately. I must also take into account the length of time for which a restraint is anticipated. In other words, I must carry out an exercise as outlined by McLelland J in Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 at 535 - 536. 7 As I have said, much emphasis has been placed on behalf of the Director General on the fact that, as an official acting under statute, he ought not be restrained from acting in his discretion. It has been said that nothing that occurred on Lord Howe Island could lead me to infer that this cull would be carried out in a manner with any potential or any substantial potential for cruelty. On the first day the matter was before me, there was no real evidence as to how the cull was to be carried out or, indeed, the nature of the terrain as necessitating a cull from a helicopter rather than by shooters on the ground. However, on the second day, there was evidence as to how the cull was to be carried out. As to the second matter, the evidence on the first day was that it was "rough terrain". On the second day the description of the terrain was expanded a little, but the evidence still did not descend to actual detail of the country in which the shoot is to take place and its precise features. So far as the manner of the cull is concerned, it did specify the operator who is to carry it out and it did specify that it was to be conducted in accordance with proper practice and according to the standards laid down by the FAAST Management Committee. That is an acronym for Feral Animal Aerial Shooter Training. The Committee is a body that has been set up to provide training and standards for necessary shooting for various government agencies including NSW Agriculture, the National Parks and Wildlife Service, the NSW Rural Land Protection Board and the NSW Police Service. Mr Whitford has drawn my attention to the provisions relating to training in the FAAST manual and also to provisions relating to the return of the aircraft to permit the finishing off of wounded animals. However, as I have said, the evidence is still attenuated and given by hearsay. 8 The difficulty I have is that the defendant relies simply upon the broad, although no doubt well-intentioned, statement that the shoot will be conducted properly. Whatever else may be said about the association between the Director General and the Lord Howe Island shoot in 1999, the fact is that the Director General gave similar assurances concerning that shoot, both before and after it, whereas, as I have said, there is an arguable case on the material presented to me that there were associated with that shoot circumstances of cruelty. Thus, in a letter to one of the complainants (Glenys Oogjes) on 18 September 1999, the Director General conveyed assurances that the New Zealand organisation contracted to carry out that shoot had "extensive ... experience" and "established quality assurance programmes". Further, all people to be involved in the programme were trained and experienced in the methods to be used. Even the dogs that were to be employed were said to have appropriate and specific training. The contract it was said required "all goats to be destroyed in a humane manner in accordance with legislative requirements and applicable codes of conduct". As late as August 2001, in putting submissions to a Standing Committee of the New South Wales Legislative Council, which was holding an enquiry into feral animals, the Director General cited the Lord Howe Island culling programme with apparent approval as a successful and appropriately conducted example of an aerial cull. 9 In my view, bearing in mind the arguable case that has been made out of the potentiality of shooting from a helicopter to cause cruelty in the culling of feral goats, I do not regard the broad based assurances given as negativing the potentiality of cruelty arising from a helicopter conducted cull in this instance. If the plaintiff's case be proved to be correct, the cull may be carried out in a way which inflicts cruelty on some of the goats involved and therefore a breach of the cruelty statute. 10 On the balance of convenience, the defendant has relied more upon the interference with his ability to carry out his duties totally within his discretion than upon any actual harm or cost of a comparatively short postponement of the cull by shooting. Whilst I have taken this into account, in the circumstances, I am prepared to grant an injunction restraining the cull for a period in the vicinity of four to six weeks. I had some discussions with counsel during the argument of the interlocutory application as to the time within which they anticipated their clients could be ready for a final hearing of the proceedings to be conducted. I was informed at that stage there was some hope this could be organised in about four weeks. After I have delivered this judgment, I shall enquire of them what their present estimates are as to the time at which a final hearing should be able to be conducted and its likely length. In light of that, I shall make enquiries to see what arrangements can be made in the Court for a final hearing to take place at the appropriate time.