Candy v Christensen [2006] QDC 364

1 [2006] QDC 364 DISTRICT COURT CIVIL JURISDICTION JUDGE ROBERTSON No D118 of 2006 COLIN CANDY Plaintiff and TERRY CHRISTENSEN Defendant MARYBOROUGH ..DATE 03/10/2006 ORDER -- 1 of 13 -- 2 ORDER HIS HONOUR: Mr Candy is seeking damages for trespass to land and goods from Mr Christensen, who is a Queensland Parks and Wildlife Service officer. Mr Candy's claims relate to what he asserts was the unlawful seizure of a swamp wallaby named Marcy from his home at 34 Cypress Street, Torquay, on 30 November 2001. His claim is remarkably similar to a failed claim against a variety of defendants, including Queensland Parks and Wildlife Service officers, arising out of the seizure of a red kangaroo called Mitchell from the same premises on 8 March 2001. His claim was dismissed by Douglas J on 9 May 2005 after a three day trial in January of that year: Candy v. Thompson and others [2005] QSC 111; and an appeal against His Honour's decision was unanimously dismissed by the Court of Appeal on 14 October 2005: Candy v. Thompson and others [2005] QCA 382. In my opinion, the conclusions of law reached by the Court of Appeal effectively bind me in the light of the facts as I find them to be in this case, and the result for Mr Candy will be similarly disappointing. I do not intend to recite all the relevant events, as there is really no significant factual dispute between the parties. Based on the admissions in the pleadings, and the concessions made by Mr Candy in his evidence and the documents which were tendered, and which he accepted in cross-examination, I make the following findings of fact: Mr Candy took possession of Marcy, a swamp wallaby joey, on or -- 2 of 13 -- 3 ORDER about the 30th of March 2001 after she'd been discovered in her dead mother's pouch by the side of a road in Hervey Bay. Because of what had occurred in relation to the seizure of Mitchell by Queensland Parks and Wildlife Service officers on the 8th of March 2001, I infer that Mr Candy involved the media, namely A Current Affair, in support of his desire to keep the swamp wallaby. His daughter, Emma, then applied for a rescue permit under the Nature Conservation Regulation 1994, which was granted on the 6th of April 2001. The letter that accompanied the permit included a copy of the Code of Practice for the care of orphaned, sick or injured protected animals, and Mr Candy acknowledged that he read both the letter and the Code of Practice. The Code of Practice approved by the Minister under the Nature Conservation Act 1992 highlights the need to return such animals to the wild when the animal is again able to live in its natural habitat. From the 6th of April 2001 until the 6th of October 2001, with her father's knowledge, Emma held a rescue permit which permitted her to keep Marcy, subject to the terms of the permit. At no time did Mr Candy hold any permit in relation to the animal. On the 27th of August 2001, with Mr Candy's consent, Mr Doug Schulz, a QPWS officer, and Mr McKay, a veterinary surgeon, visited Mr Candy's residence and Mr McKay inspected the wallaby. He provided a report dated the 30th of August 2001, -- 3 of 13 -- 4 ORDER which Mr Candy acknowledged reading around about that time. Mr McKay assessed the animal as being in a healthy condition and expressed the opinion that: "...the animal would benefit from a period in a soft-release program where it would acquire the skills required for survival in a suitable habitat." On the 5th of October 2001 Emma applied under the Nature Conservation Act for a permit to keep Marcy. Her application was refused and a notice setting out reasons for refusal was attached to a letter to Emma, dated the 27th of November 2001, delivered in person to her, in her father's presence, on the 28th of November 2001 at their home by Mr Christensen. I infer that because of the history of the matters between Mr Candy and QPWS the conversation that took place on that day was tape-recorded, and Mr Candy does not dispute its accuracy. The reasons for the refusal are set out in the notice and refer to "the evidence that the animal...is able to be returned to the wild" and "(residence is) unfit for the keeping of an adult swamp wallaby". The premises are an ordinary house block, just over 900 square metres, with a four bedroom house at the front of the block, and other similar residences on all boundaries. Mr Christensen made every effort to persuade Mr Candy to hand over the animal voluntarily but he refused, telling him that he will need a warrant and that "it'll have to be on Current Affairs". -- 4 of 13 -- 5 ORDER On the 30th of November 2001, Mr Christensen executed a search warrant on Mr Candy's premises and the wallaby was seized. The warrant was issued under the hand of an acting Magistrate at Holland Park at 8.55 a.m. on that day and executed soon after 3.20 p.m. at the premises. Again Mr Christensen tape-recorded the conversation that took place at the time, and Mr Candy does not dispute its accuracy. Mr Candy did not cooperate in the seizure of the animal, despite Mr Christensen's pleas for him to help the other officer because the animal was used to being handled by Mr Candy. Emma did appeal against the refusal. Ultimately the appeal was dismissed on the 21th of October 2002. Marcy sadly had died of maladaption syndrome at David Fleahy's Fauna Reserve, Currumbin, on the 12th of March 2002. DISPUTED ISSUES On the 22nd of August 2005, before Judge Brabazon QC in this Court, the parties agreed that the action proceed on the basis of an agreed statement of issues which was filed on the 24th of August 2005. This was a similar process to that undertaken prior to the trial before Douglas J, and neither party sought to resile from the agreed statement of issues. -- 5 of 13 -- 6 ORDER For convenience, I will start with question 4: "Was the swamp wallaby a protected animal pursuant to section 83 of the Nature Conservation Act on the 30th of November 2001? Once it is accepted that a swamp wallaby is a mammal that is "indigenous to Australia" - which it clearly is and Mr Candy accepts - then the reasoning and conclusions of Keane JA in relation to the red kangaroo Mitchell in the earlier case applies equally to this case. I do not intend to recite his Honour's careful and logical analysis which is contained in paragraphs 36 to 37 of his judgment with which I agree. Mr Candy attempted to argue that the animal came within the definition of "newly protected animal" in section 85(1) of the Nature Conservation Act, thus being an exception to the general provision in section 83(1) that all protected animals are the property of the State. Section 85(1) of the Nature Conservation Act defines "newly protected animal" as "a protected animal that, immediately before the commencement day, was not fauna around the Fauna Conservation Act 1974." "Fauna" was defined in that Act (relevantly) as "any...mammal that is indigenous to Australia". As a swamp wallaby is a mammal indigenous to Australia, it is fauna under the Fauna Conservation Act 1974 and is, therefore, -- 6 of 13 -- 7 ORDER not a newly protected mammal under the Nature Conservation Act. Mr Candy also returned, somewhat obliquely, to the argument he ran before the Court of Appeal to the effect that the Nature Conservation Act did not provide an adequate basis for prescribing native wildlife as common wildlife by regulation. This argument must be rejected for the same reasons given by Jerrard JA at paragraph 11 of his Honour's judgment in the Court of Appeal decision. It follows, therefore, that in answering question 4 of disputed issues against Mr Candy, the wallaby was never his property and was always the property of the State and, therefore, Mr Christensen committed no trespass to the plaintiff's goods. Question 5 deals with the lawfulness of the search warrant. Mr Candy did not really pursue an argument that the warrant was unlawfully obtained, nor could he. He advanced a number of arguments which show his ignorance of the law of search warrants; for example, that for some reason the fact that neither he nor Emma were actually charged with a breach of section 88(1) of the Nature Conservation Act in some way affected the legality of the warrant. He also submitted that because of the reference to a 14 day authorisation in the warrant, which on its face was to expire at 9 p.m. on the 14th of December 2001, an execution of the warrant on the day of its issue prior to 9 p.m. was unlawful. -- 7 of 13 -- 8 ORDER As I remarked when he made this novel argument, law enforcement agencies would be somewhat alarmed at the prospect that a lawfully issued search warrant could not be executed on the day of its issue. There is nothing in the evidence or in law to suggest that the warrant issued by the Acting Magistrate pursuant to section 149 of the Nature Conservation Act was other than a lawfully issued warrant, and I hold that it was lawfully issued by the Acting Magistrate and lawfully executed by Mr Christensen at Mr Candy's premises on the 30th of November 2001. It follows that Mr Christensen's seizure of the wallaby was lawful and that he had the right to enter the plaintiff's premises pursuant to the warrant for the purposes of the seizure. He has, therefore, committed no trespass to the plaintiff's land. Question 6: Did the Nature Conservation Act apply to Mr Candy and his property? Mr Candy's argument here relies on section 14 of the Nature Conservation Act and is the same argument rejected by Douglas J at paragraph 17 of his Honour's judgment in the earlier case and, for the same reasons enunciated by his Honour there, I reject Mr Candy's argument here. -- 8 of 13 -- 9 ORDER Question 38: Did Mr Candy hold any right at common law to pursue the wallaby's return? Mr Candy's argument relies on some selected passages in the High Court's judgment in Yanner v. Eaton (1999) 201 CLR 351 and fails to appreciate (as he did in the Court of Appeal: see para 34 of Keane JA's judgment) that the property in the wallaby does not depend on common law principles but upon the provisions of the Nature Conservation Act and the Nature Conservation (Wildlife) Regulation 1994. He had no separate common law rights in relation to the wallaby and, as I found under the applicable statutory regime, the wallaby was always the property of the State and Mr Candy himself never held any permit under the Act to keep the animal. It follows that Mr Candy's claims must fail. Mr Horton, in his written submission, has also referred to misfeasance against public officials in the exercise of administrative power. To the extent that Mr Candy's claim could be so classified, I agree with Mr Horton's argument that in the wake of the High Court's decision in Northern Territory of Australia and others v. Mengel and others (1995) 129 ALR; (1995) Australian Torts Reports 81-335; (1995) 69 ALJR 527, there is not available, independent of negligence, nuisance or trespass, a general action for damages for those who suffer loss by reason of unlawful or intentional acts of public officials. LOSS AND DAMAGE -- 9 of 13 -- 10 ORDER Despite what was said by Douglas J and Keane JA, once again Mr Candy made no attempt to disclose any documents, such as expert reports, in support of this aspect of his claim. At the start of the hearing he wanted to hand up a set of documents which had not been disclosed and which Mr Horton, quite reasonably, objected to on that basis. Eventually I did permit him to tender three reports from his general practitioner, Dr William Lethbridge. Dr Lethbridge, who had no notice of being required to give evidence, very kindly made himself available to give evidence in the plaintiff's case by telephone and he was cross-examined by Mr Horton. Mr Candy's claims relate to the loss of property at Torquay and personal injury. He told me in evidence that he has been a disability pensioner since he was 29. He suffers from a distressing arthritic condition. He was born on the 11th of December 1956, so he is now 49. He and his wife have had six children. The property at Cypress Street was purchased by himself and his wife in 2000 for $108,000 and he obtained, I infer, bank finance for $85,000. He told me that the property was sold in February 2002 for $153,000 - that is a substantial profit - and that it is now worth $450,000. He maintains that the seizure of Marcy and Mitchell caused the sale and, therefore, the loss. This claim is simply not credible. He accepted in cross-examination that at the time of Mitchell's seizure on the 8th of March 2001 the house was on the market and he told -- 10 of 13 -- 11 ORDER Mr Christensen on the 28th of November 2001 that the property had been on the market for 12 months. There is no cogent evidence to connect the sale of the property or any alleged loss to the seizure of Marcy on the 30th of November 2001. His life has certainly been in a downward spiral for many years and he chooses to blame all his problems on the Queensland Parks and Wildlife Service and its actions in seizing his pet kangaroo and pet wallaby. He says that he now has a drinking problem; but he does not attend AA; and there is no cogent evidence before me to connect any drinking problem he may have to the seizure of the wallaby. I think it is probable that the main reason for the difficulties he now faces lies in the breakdown of his marriage. I infer from Mr Candy's evidence, and also that of his son, that his obsession with Queensland Parks and Wildlife Service and his view of the way in which orphaned and sick native animals should be treated, which is different from that of Queensland Parks and Wildlife Service, was a contributing factor to the breakdown of the marriage. That is not referable in any causative sense to Mr Christensen's actions in seizing the wallaby on the 30th of November 2001. Mr Candy's own evidence is that his wife moved out in July 2001, returned in August, and then finally left on the 30th of September 2001 and returned with his youngest son to her family in Dubbo; that is, before the date of the seizure. Later he told me in March 2002 she returned in an attempt to save the marriage, but this failed and they were divorced in -- 11 of 13 -- 12 ORDER 2004. Dr Lethbridge's evidence does not help Mr Candy overcome the difficulty that he has in establishing a causal link between his problems now and the seizure of Marcy. I need only mention a number of features of that evidence. Dr Lethbridge says that Mr Candy suffers from depression and insomnia, but that he had reported a history of these problems to the doctor when he first consulted him in August 2000. It is also clear that Mr Candy is resistant to advice which is designed to assist him to deal with these problems, which advice presupposes to any extent that he is obsessed with these disputes with Queensland Parks and Wildlife Service. One of Dr Lethbridge's letters, dated the 1st of September 2006, is to a psychiatrist, Dr Petros Markou, in which Dr Lethbridge perceptibly, in my view, observed: "I'm most grateful for your help in Colin's management. However, I fear he is still more interested in getting you to report on his depression for his Court case than on actually seeking help or treatment". It is telling that Mr Candy has not attempted to place any psychiatric evidence before me to support his claim from Dr Markou or anyone else. He has failed to establish any causal link between his alleged loss and the events of the 30th of November 2001. His claim is dismissed. Finally, before hearing the parties on costs, I want to make a -- 12 of 13 -- 13 ORDER few observations. In my opinion, this litigation, in the light of the result in the earlier case, never had any hope of succeeding. There is no doubt that Mr Candy is obsessed, but his decision to continue with this case in the wake of the Court of Appeal's decision satisfies me that in so pursuing the claim he is not acting rationally. His claims pursued in Court have significant consequences in terms of resources and, I am sure, personal for people like Mr Christensen. I agree with Mr Horton that the taped conversations between Mr Candy and Mr Christensen show that Mr Christensen at all times acted reasonably and courteously in an attempt to resolve a difficult situation without recourse to legal means under the Act. There is no evidence to suggest that Mr Candy has issued any other similar claims. Had there been, I would have referred these reasons to the Attorney-General with a view to her taking advice as to whether or not action should be taken pursuant to the Vexatious Proceedings Act 2005. ... I will order the plaintiff to pay the defendant's costs of and incidental to the proceedings on the standard basis. ----- -- 13 of 13 --