Full Case Name:  David Oshannessy v J.E. Heagney

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Country of Origin:  Australia Court Name:  New South Wales Supreme Court Primary Citation:  [1997] NSWSC 482 Date of Decision:  Tuesday, October 14, 1997 Judge Name:  Graham AJ Judges:  Graham AJ Docket Num:  012798/97

The case focuses primarily on the procedural requirements for stating a case. However, there is also discussion concerning what are the appropriate steps that a motor vehicle driver, who has hit and injured an animal with their vehicle, must take. In this case, the trial judge found that a refusal to stop and inspect the animal did not constitute a failure to take reasonable steps to alleviate that animal's pain.

Section 14(a) of the Prevention of Cruelty to Animals Act 1979 provides:

"14. The driver of a vehicle which strikes and injures an animal (other than a bird) shall not fail:

(a) where in consequence of the injury pain has been inflicted upon the animal - to take reasonable steps to alleviate the pain, ..."

On 1 March 1996 one Barry James Thompson was driving a motor vehicle along Dell Street at Woodpark at about 9.15pm when his motor vehicle struck a cat which was then upon the roadway. On 28 August 1996 the applicant, David Oshannessy, a Special Constable of Police and RSPCA Officer, laid an information alleging an offence under section 14(a) of the Act.

The proceedings came before the Court constituted by J E Heagney Esq., the respondent to this application, on 20 December 1996. The defendant was represented by a legal representative and, as I understand it, formally admitted that pain had been inflicted upon the cat at the relevant time.

At the close of the case for the prosecution, the learned magistrate asked the legal representative for the prosecution, "What reasonable steps do you say that the defendant failed to take?" The legal representative responded, "The first step must be to stop and check ... at least get out and check the condition of the animal that has just been hit. That's a reasonable step."

His Worship then said, "The way the legislation is framed requires him to take reasonable steps to alleviate the pain of the animal ... how does stopping the car alleviate the pain of the animal?" The legal representative for the informant responded by saying:

"Well, the animal is lying on the road, it has been injured. The evidence is that it is not dead. To alleviate the pain would be - if the animal is severely injured and has got blood coming out of ... then it would be reasonable for him to ... stop the car, get out, if it's in that condition ... to alleviate the pain in this case would have been to euthanase it ... not only euthanase but he could have made an enquiry for ... he could have ... taken it to the vet, but before he can get to reasonable he has got to get out of the car, check the condition, either euthanase or take whatever appropriate steps, in this case would have been to call the vet, to make enquiries as to what should have been done ..."

Without calling upon the defendant to present his case, his Worship proceeded to dismiss the information saying:

"This is a prosecution bought (sic) under the Prevention of Cruelty to Animals Act s.14. That requires the driver of a vehicle which strikes and injures an animal where in consequence of the injury pain has been inflicted upon the animal to take reasonable steps to alleviate the pain.

The prosecution has quite failed to satisfy me that there is any evidence that the defendant didn't do something which was reasonable which would have alleviated the pain of this animal. It's consistent with the view of the facts presented by the prosecution that the defendant might have behaved more responsibly. He might have stopped immediately at the scene rather than leaving it and returning later, but it seems to me there was nothing in the circumstances of the animal after it had been hit that he could have done to alleviate its pain.

Mr Henderson was on the spot virtually immediately as was Miss Curlewis-Vea and the owner, Mr Brennan, was there ... shortly thereafter. Both Mr Henderson and Miss Curlewis-Vea expressed the opinion that to move the animal as they saw the situation may do more harm than good. Mr Brennan, the owner, had taken steps to contact a vet and he brought from his house a box and a towel or blanket in which to convey the animal to the vet.

Having regard to that scenario, I am quite at a loss to understand the prosecution's allegation that there were reasonable steps which the defendant could have taken to alleviate the pain of the animal that he did not do. It seems to me Mr Wozniak (the legal representative of the prosecutor) to an abstract or hypothetical situation when, if anybody else was around certainly one would say of a driver who didn't stop that he didn't take the first reasonable step to alleviate the animal's pain."

On 30 December 1996, the respondent requested the learned magistrate to state a case in accordance with section 101(1) of the Justices Act 1902 as amended. On 20 January 1997, the prosecutor entered into a recognisance to prosecute the appeal by way of stated case. A draft stated case was submitted to the learned magistrate for his consideration but on 27 May 1997 the learned magistrate refused to state a case and issued a certificate of refusal saying:

"I have refused to state a case because the procedure is inappropriate when, as in this matter, there has been no findings of ultimate fact."

It was open to the learned magistrate to record in a stated case findings as to facts for which there was no evidence and which may have justified the dismissal of the information and there was ample scope for the magistrate to record for the purposes of a stated case the facts for which there was prima facie evidence.

Under section 103 of the Justices Act a magistrate may refuse to state a case if he is of opinion that the application is "merely frivolous", otherwise he must state a case.

The meaning of the expression "merely frivolous" was addressed by Asprey J in  ex parte Greenwell v Williams  (1963) 81 WN (Part 1) (New South Wales) 39 at 43. The relevant passage in his Honour's reasons for judgment is as follows:

"I now turn to consider whether the learned magistrate was justified in law in refusing the application made by the applicant in the particular circumstances of the present case. Section 103(1) provides that if the Justice is of the opinion that the application is merely frivolous he may then, but shall not otherwise, refuse to state a case. What is an application which is 'merely frivolous' in the context of this legislation? In the absence of reference by counsel to any authority binding me as to the construction of this phrase, I have obtained assistance in endeavouring to ascertain its meaning in considering the meaning which eminent judges have given to the phrase 'frivolous and vexatious' and I am of the opinion that the addition of the word 'vexatious' to 'frivolous' adds little, if anything, to the meaning of 'frivolous' in this context. I think that section 103(1) is merely a statement of the power of a magistrate to prevent abuse of the process of the Court. In the notes to O.25 r.4 in the current White Book are collected various cases dealing with the phrase 'frivolous and vexatious', but I believe that an excellent statement of the meaning to be attributed to it appears in  Norman v Matthews  (3) where Lush J said: 'In order to bring a case within the description' (of frivolous and vexatious) 'it is not sufficient merely to say that the plaintiff has no cause of action. It must appear that his alleged cause of action is one which on the face of it is clearly one which no reasonable person could treat as bona fide, and contend that he had a grievance which he was entitled to bring before the Court. Of course, it is a question of degree.' In my view those words of Lush J can be applied to s.103(1) to measure the power of a magistrate to refuse to state a case.

The power conferred by s.103(1) must be exercised with great caution. In  Cox v Journeaux   (No 2)  Dixon J (as he then was) said: 'The principle, in general paramount, that a claim honestly made by a suitor for judicial relief must be investigated and decided in the manner appointed, must be observed. A litigant is entitled to submit for determination according to the due course of procedure a claim which he believes he can establish, although its foundation may in fact be slender. It is only when to permit it to proceed would amount to an abuse of jurisdiction, or would clearly inflict unnecessary injustice upon the opposite party that a suit should be stopped.' In  Young v Holloway  the President (Sir Francis Jeune) said: 'It is so important not to shut out a litigant from what may, even possibly, be the assertion of a just right, that I cannot take on myself, at this stage, to say that this part of the case is so clearly frivolous that I should stop the proceedings.'"

Under section 104 of the Justices Act, the Court may, on the application of the intending appellant, order a magistrate to state a case subject to the appellant entering into the recognisance mentioned in section 102(1). As I have already indicated, such a recognisance has already been entered into in this case.

This is not a case where it would be appropriate to question the bona fides of the prosecution. I do not consider that the application to state a case can be seen to be merely frivolous.

In the circumstances, I propose to make an order as asked by the applicant requiring the learned magistrate to state a case. In so doing it should be understood that the ultimate determination of the prosecution may not be any different from that reached by the learned magistrate. Whilst all of the contentions of the applicant may not amount to points of law, it is not the function of a magistrate to pre-judge those issues and decline to state a case.

I order that the respondent, John Edward Heagney, state a case in the matter of Oshannessy v Thompson which was before him on 20 December 1996. There will be no order as to costs.


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