SUPREME COURT OF QUEENSLAND

[1]  WILLIAMS JA: I have had the advantage of reading the reasons for judgment of Muir J, and I agree, for the reasons therein stated, that the appeal should be dismissed with costs.

[2]  MUIR J: On 30 March 2001 the appellant, who resides with his wife and daughter Emmaline in a dwelling house on a 931 square metre residential allotment in Torquay, was asked to look after a swamp wallaby which had been found in the pouch of its dead mother. At the time, the appellant was in dispute with the Queensland Parks and Wildlife Service concerning a red kangaroo, which had been seized by departmental officers from the property.

[3] The appellant applied for a permit to keep the wallaby but, after discussion with departmental officers, Ms Candy made the application. She was granted a permit to keep the wallaby pursuant to the requirements of the Nature Conservation Act 1992 (“the Act”) and the Nature Conservation Regulation 1994 (“the Regulation”) from 6 April 2001 to 5 July 2001 inclusive. The permit was renewed twice: the second renewal expiring on 6 October 2001. A further application for renewal was refused on 27 November 2001 on grounds that:

(a) The wallaby was able to be returned to the wild; and

(b) The property was unfit for the keeping of an adult swamp wallaby.

[4] Officers of the Department personally delivered the notice of refusal of renewal to the appellant and Ms Candy on 28 November. Lengthy discussions then occurred in which the officers, one of whom was the respondent, attempted to persuade the appellant that the wallaby should be handed over voluntarily to them. The appellant was not able to be persuaded.

[5] On 30 November 2001, the respondent and two other Departmental officers went to the property armed with a warrant issued by a Magistrate under s 149 of the Act. It authorised the defendant to attend at the property, “search any part of the place” and “seize [the swamp wallaby]”. On arrival at the property, the respondent asked the appellant if he and the other officers could go inside. The appellant assented and the respondent showed the appellant “the warrant” and gave him a copy of it. Discussion took place about the wallaby. Ms Candy declined to assist in its capture whereupon the departmental officers caught it and took it away. The unfortunate animal died at a fauna reserve in March 2002.

[6] On 30 November 2004, the appellant commenced these proceedings against the respondent claiming:

“… $100,000 plus unspecified exemplary and aggravated damages to be assessed by the Court for the actions and effects through the alleged unlawful actions carried out by the Defendant in taking from the Plaintiff a Swamp Wallaby and wrongfully converting personal property that the Plaintiff believes that he and his family owned under the common law as a matter of right.”

[7] The statement of claim is a rambling document which contains: a narrative of the history of the matter from the appellant’s perspective; submissions of law; assertions as to the legal and factual merits of the appellant’s case and unparticularised claims for damages. It fails to comply with the requirements of the Uniform Civil Procedure Rules as to pleadings in a great many respects. These deficiencies doubtless prompted an agreement between the parties on 22 August 2005 to proceed to trial on the basis of an agreed statement of issues. That document identified five main and three subsidiary issues.

[8] Of the five “main issues”, two were of no practical consequence having regard to the death of the wallaby. The remaining three main issues were:  whether there was a trespass on the property on 30 November 2001; whether the seizure and removal of the wallaby was a trespass to the appellant’s goods; and in the event of a trespass being proved, the quantum of the appellant’s damages. The three subsidiary issues were:

(a) was the wallaby a “protected animal” pursuant to s 83 of the Act on 30 November 2001?

(b) was the seizure of the wallaby lawful by reason of the search warrant or the wallaby’s status as a “protected animal”? and

(c) did the Act apply to the appellant or to his property as at 30 November 2001?

[9] The trial of the proceedings took place on 2 October 2006 before a District Court judge who gave judgment against the plaintiff on 3 October 2006. All the issues referred to above were decided against the appellant by the learned primary judge, either expressly or by necessary implication.

[10]  The facts recited above show that there was no trespass on the property by the respondent on 30 November 2001. Also, the learned primary judge found that the respondent lawfully went on the property under the authority of the search warrant. No ground of appeal is directed to that matter and there is plainly no arguable claim of trespass on the appellant’s land.

[11]  Any other right to damages on the appellant’s part depended on his having property in or a right to possession of the wallaby. In many respects, these proceedings are a replay of proceedings in the Supreme Court pursued by the appellant in respect of the red kangaroo referred to earlier. An appeal against a judgment adverse to the appellant was dismissed by the Court of Appeal on 14 October 2005.[1] In his reasons in that case, Keane JA, with whose reasons Jerrard JA and Jones J agreed, explained the statutory provisions governing entitlement to possession of native fauna as follows:

“[36] When the events which are now the subject of this dispute transpired in February 2001, s 83 of the Act provided that, subject to presently immaterial exceptions, ‘all protected animals are the property of the State’, and ‘a protected animal ceases to be the property of the State if … the animal is taken under the licence, permit or other authority issued or given under a regulation …’, in which case the protected animal ‘becomes the property of the holder of the authority …’.

[37] The dictionary to the Act defined ‘protected animal’ as ‘an animal that is prescribed under this Act as threatened, rare or common wildlife …’. Section 8 of the Nature Conservation (Wildlife) Regulation 1994 (Qld) (‘the Regulation’) stated that the wildlife listed in the fifth schedule to the Regulation were ‘common wildlife’. That prescription was made pursuant to s 80(1) and s 175(1) of the Act. (The Act required the Governor-in-Council to have an opinion about certain matters before prescribing an animal as "common wildlife". In the absence of evidence to the contrary, of which there was none, it may be assumed this opinion was properly formed: Statutory Instruments Act 1992 (Qld) s 7(3), s 20. There is thus no reason to doubt the validity of the Regulation.) The fifth schedule identified a mammal that was ‘indigenous to Australia’ as ‘common wildlife’. The appellant accepted that a red kangaroo was indeed a mammal indigenous to Australia. It follows that, in February 2001, an indigenous mammal such as the red kangaroo was a ‘protected animal’ for the purposes of the Act. (The term ‘common wildlife’ has since been removed from the Act in favour of the term ‘least threatened wildlife’: Nature Conservation Amendment Act 2004 (Qld), s 13. This subsequent change to the terms of the applicable legislation is irrelevant to the disposition of this appeal.)

[38] In 2001, the Act provided, by way of s 88(1)(b), that, subject to presently immaterial exceptions, ‘a person … must not … keep a protected animal, other than under - … a licence, permit or other authority issued or given under a regulation …’.

[39] The effect of these provisions was that the kangaroo, at the time of its removal, was not lawfully in the possession of the appellant. Whatever might have been the position so far as ownership of the animal was concerned, the appellant was prohibited by the Act from keeping it. The resolution of the second issue against him was, therefore, inevitable as a matter of law.”

[12]  The statutory provisions referred to by Keane JA were, in all material respects, the same as those in existence on 30 November 2001. Their application to swamp wallabies is identical to their application to red kangaroos. It was common ground on the trial that swamp wallabies were “mammals indigenous to Australia”. It follows that the appellant had no right to possession of the wallaby and thus no right to damages for its removal.

[13]  For these and other reasons discussed herein, the appellant’s case in entirely lacking in substance.

[14]  I now propose to address briefly the 11 grounds of appeal.

[15]  Ground 1, which asserts error on the part of the primary judge “in not accepting that the swamp wallaby is a separate species of native animal to the red kangaroo”, has no substance. The primary judge made no such finding. His Honour, correctly, applied the reasoning in Candy v Thompson.

[16]  Grounds 3, 4 and 5 are all concerned with the status of swamp wallabies as protected animals. None of the matters raised by the appellant casts any doubt on the correctness of the reasoning in Candy v Thompson or on the primary judge’s application of that reasoning.

[17]  Ground 2 alleges error on the part of the primary judge in refusing to grant leave for Mr Purtill, a former Director General of the Environmental Protection Agency, to “attend Court as subpoenaed … and to provide evidence which would have assisted the plaintiff’s case”. This evidence was identified as:

“Why wasn’t a Register of Protected Wildlife kept as required by the Nature Conservation Act 1992? Nature Conservation Act 1992 section 133 Chief executive to keep register (1) the chief executive must keep a register of – (c) Protected Wildlife; …”

[18]  The appellant reduced to writing the questions he wished to ask Mr Purtill. There were 103 questions in all. The primary judge set aside the subpoena insofar as it was to require Mr Purtill to attend and give the evidence contemplated by the list of questions. He was right to do so. The proposed questions were objectionable on a number of grounds, including lack of relevance, the seeking of non-expert opinion evidence and the seeking of hearsay evidence.

[19]  The subpoena to produce documents required the production of documents of which the Court would have had judicial notice had the documents existed. It did not serve any useful purpose.

[20]  Ground 6 complained that the appellant was not permitted by the primary judge to continue his argument based on Yanner v Eaton.[2]  There is no substance in the complaint. The appellant was afforded a very patient hearing. The primary judge explained that he had considered, and agreed with, Keane JA’s reasons in Candy v Thompson concerning the lack of relevance of the principles stated in Yanner to the facts of this case. I also respectfully agree with Keane JA’s reasons in that regard.

[21]  Plainly, the wallaby was the property of the State by operation of s 83(1) of the Act. Section 83(2) had no application in the circumstances under consideration. The appellant was not the holder of any permit issued under the Act or Regulation which gave him any rights in respect of the wallaby. The permit issued to Ms Candy had expired well before 30 November 2001 and it could not continue to confer rights in respect of the wallaby, even on Ms Candy.

[22]  Ground 7 alleges that the primary judge erred in not attributing appropriate effect to the agreed fact that the wallaby had not been in the State’s possession prior to its seizure by the respondent on 30 November 2001. The point at which the respondent or the State of Queensland first had possession of the wallaby is irrelevant to the operation of the relevant provisions of the Act, at least in the circumstances of this case. Section 83(1) provides that subject to subsections (2) to (5) of the section “all protected animals are the property of the State”. Subsections (2) to (5) do not apply. The wallaby, for the reasons given above, was a “protected animal” and thus the property of the State.

[23]  Complaint is made in ground 8 of the primary judge’s alleged failure to determine “actual ownership” of the wallaby. His Honour did in fact find expressly that the wallaby was always the property of the State.[3] His Honour also found that the wallaby was seized by the respondent under a warrant lawfully issued pursuant to s 149 of the Act and that the seizure was lawful. There is no challenge in the grounds of appeal to the validity of the warrant or to the lawfulness of conduct pursuant to it.

[24]  Ground 9 makes allegations concerning the behaviour of orphaned marsupials. The matters raised do not bear on the correctness or otherwise of the decision appealed against.

[25]  Ground 10 alleges error on the part of the primary judge “in not enquiring into constitutional ‘just terms’ of the animal’s seizure”. As pointed out above, the appellant had no property in the wallaby and no right of possession. No question of compensation arises.

[26]  The appellant also attempted to rely on a number of other grounds outside the scope of the issues litigated at first instance and not within the grounds of appeal. None of them were reasonably arguable and the appellant was not given leave to amend his grounds of appeal to incorporate them. It is not appropriate to address them in these reasons.

[27]  For the above reasons, the appeal should be dismissed with costs.

[28]  PHILIP MCMURDO J: I agree with Muir J.