RSPCA NSW (Inspector Milton) v Elliott [2012] NSWSC 585

Supreme Court New South Wales

Medium Neutral Citation: RSPCA NSW (Inspector Milton) v Elliott [2012] NSWSC 585 Hearing dates: 4 May 2012 Decision date: 01 June 2012 Jurisdiction: Common Law Before: Schmidt J Decision: 1. The appeal is upheld. 2. Bartley LCM's decision is set aside. 3. The matter is remitted to the Local Court to be determined according to law. 4. Unless the parties approach within 7 days, the Court's order as to costs is that the first defendant must bear the plaintiff's costs, as agreed or assessed. Catchwords: APPEAL - appeal against Local Court decision - charges under s 5(3)(c) and 8(1)Prevention of Cruelty to Animals Act 1979 - definition of 'person in charge' in s 4 - greyhounds - greyhounds not owned by defendant - whether his Honour misunderstood and misapplied the decision Song v Coddington - construction of term 'person in charge' - whether appeal raised an error of law - error established - appeal upheld - costs Legislation Cited: Control Act 1982 (Cth) Crimes (Appeal and Review) Act 2000 Export Prevention of Cruelty to Animals Act 1979 Prevention of Cruelty to Animals (General) Regulation 1996 Public Service Act 1999 (Cth) Cases Cited: David Morse (Office of State Revenue) v Chan [2010] NSWSC 1290 Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 Kostas v HIA Insurance Services Pty Limited [2010] HCA 32; (2010) 241 CLR 390 Marshall v Director-General Department of Transport [2001] HCA 37; (2001) 205 CLR 603 Residual Assco Group v Spalvins [2000] HCA 33; (2000) 202 CLR 629 Song v Coddington [2003] NSWSC 1196; (2003) 59 NSWLR 180 Category: Principal judgment Parties: Courtney Louise Milton, RSPCA NSW (Plaintiff) Johanna Elliott (First Defendant) The Honourable G Bartley LCM (Second Defendant) Representation: Counsel: Mr P Bodor QC and Mr M Gallagher Mr J Sheller and Mr G O'Mahoney (First Defendant) Solicitors: Smythe Wozniak Legal (Plaintiff) Greg Walsh & Co (First Defendant) File Number(s): 2011/318960 Publication restriction: None Decision under appeal Jurisdiction: 9109 Date of Decision: 2011-09-09 00:00:00 Before: Bartley LCM