Anthony James Lauren v Attorney-General on Behalf of Chief Executive of Ministry of Agriculture and Forestry

• Jurisdiction: New Zealand
• Judge: Whata J
• Judgment Date: 06 March 2012
• Neutral Citation: [2012] NZHC 352
• Docket Number: CIV 2011-476-000507
• Court: High Court
• Date: 06 March 2012

BETWEEN

Anthony James Lauren

Applicant

and

Attorney-General on Behalf of Chief Executive of Ministry of Agriculture and Forestry

Respondent

[2012] NZHC 352

CIV 2011-476-000507

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

Application to have prosecution stopped as an abuse of process — Ministry of Agriculture and Forestry contacted in regard to dead calves on applicant's property — two inspectors in purported exercise of powers under s127 Animal Welfare Act 1999 (“AWA”) (power to inspect land, premises, and places and stationary vehicles, aircraft, and ships) inspected property — six informations laid against applicant for alleged breaches of AWA — it was accepted the appointments of inspectors was invalid — whether the invalid appointments meant inspections were unlawful and therefore there was no proper basis on which to lay information — whether prosecutions should be stopped as an abuse of process.

counsel:

K B Campbell for Applicant

P McCarthy and N Willcocks for Respondent

JUDGMENT OF Whata J

1 Kevin Byrnes inspected James Lauren's farm in the purported exercise of powers under s 127 of the Animal Welfare Act 1999 (“the Act”). In the course of that inspection he obtained evidence that he says shows that Mr Lauren breached the Animal Welfare Act. He duly laid six informations against Mr Lauren for those alleged breaches. Problematically Mr Byrnes was never validly appointed as an animal inspector for the purposes of the Act. I therefore must resolve what should follow from that invalidity, including whether the prosecution should be stopped as an abuse of process.

Facts

2 In March and April 2009 A J and V A Lauren Farming Partnership purchased 630 calves and transported them to Mt Belle Farm, 331 Gards Road. The farm at Mt Belle is made up of a hill block and flats. It is about 420 acres in size. On the hill block approximately 70 dry cows were already located on the property and 69 bulls.

3 The calves were initially placed on the flats and then put up onto the hill block in early May 2009. The calves were shifted onto the third hill paddock for approximately two weeks. At the end of May the calves and cows were then shifted to the first hill paddock. At about this time the calves were transferred into the ownership of the company, Tony Lauren Farming Limited.

4 There is a dispute between the parties about the management of Mt Belle Farm. Mr Lauren says that he retained Mt Belle Contracting Limited and Simon Matthew Johnston to tend the stock on both the flats and the hill paddock. On 23 July 2009 Mr Lauren went to the farm and discovered a number of dead animals on the hill block. The Ministry became involved shortly thereafter.

5 The Chief Executive says that Mr Johnston was told by Mr Lauren not to go to the hill paddocks, but that Mr Johnston became concerned and went up to the hill paddocks anyway. Up there he saw “dead calves everywhere.” A vet was called in who then called in the Ministry of Agriculture and Forestry.

6 There then followed over the period 25–30 July 2009 investigations by Kevin Byrnes and David Barbour, assisted by veterinarians. In the course of the initial inspection 13 of the calves were killed and arrangements were made for the burial of 148 and the transportation of the remainder.

7 As a consequence of those investigations, Mr Byrnes laid six informations all dated 10 May 2010 in the District Court at Oamaru alleging offences under ss 12(a) and 29(a) of the Act. Mr Byrnes states that:

• (a) He attended Mt Belle Farm on 25 July 2009;

• (b) He liaised with Dr O'Sullivan and was told about a large number of dead and dying calves;

• (c) He entered the property pursuant to s 127 of the Animal Welfare Act 1999;

• (d) He met Mr Lauren and identified himself by showing his warrant of appointment and advised him that he was conducting an inspection pursuant to s 127 of the Act;

• (e) He cautioned Mr Lauren and advised him of his rights under the New Zealand Bill of Rights Act 1990;

• (f) He explained the workings of s 130 dealing with the power to mitigate the suffering of animals;

• (g) He then continued his inspection of the property during which he ordered that a number of cows be euthanised;

• (h) During the course of the inspection he took a number of photographs of animals that were dead or down; 1

• (i) He instructed Dr O'Sullivan to conduct a post mortem of a heifer (number 12931) and to take a bone marrow sample from a heifer (number 338).

• (j) He took notes during the post mortem examination;

• (k) He took a written statement from Mr Lauren.

• (l) On the following three days, Sunday, Monday and Tuesday, he repeated the inspections which included assessing body condition scores (BCS), taking photographs, euthanasia of suffering animals and other recordings as to the condition of the animals.

8 No search warrants under s 131 were obtained for any of the activities undertaken by Mr Byrnes.

9 Mr Byrnes was assisted by David Barbour, another inspector. Mr Barbour assisted Mr Byrnes with the investigation of the farm on 27 and 28 July. Among other things he says he took photographs of the state of the pastures and of the calves, as well as video footage of some of these calves. He describes their condition and refers to assessments undertaken in association with veterinarians in relation to the condition of various animals. He records discussions about euthanising the surviving calves, but that ultimately they were transported to another farm.

10 In his affidavit Mr Byrnes also details the various additional witnesses (13) that will be providing evidence about the offending, including in relation to the health of the calves.

11 I am unable to discern whether other proposed witnesses who assisted Mr Byrnes and Mr Barbour had authority independent of them to enter the property. As no independent authority was asserted, I will proceed on the basis that they did not have such authority.

The invalid appointments

12 The Ministry accepts that the appointments of the animal welfare inspectors were invalid.

13 While that is so, it is necessary to properly describe the nature of the invalidity in order to resolve the consequences, if any, that flow from that invalidity. Helpfully, Ms Erin Patricia Rose in her brief of evidence in the District Court proceeding succinctly described the invalidity in the following terms:

• 16. Kevin Byrnes was appointed to be an Inspector under the Animal Welfare Act 1999 on 25 November 2008 effective on 1 December of that year.

• 17. He was appointed under s.124(1) Animal Welfare Act 1999 and s59(1) State Sector Act 1988. I produce a copy of this Instrument of Appointment to the Court as an exhibit.

• 18. The Director General has delegated this s59(1) power to a range of MAF personnel. The relevant delegation at the time was issued by the Director-General on 9 October 2008 effective from 13 October 2008. I refer to a copy of this delegation previously produced to the Court as an exhibit.

• 19. The appointing person was David Bayvel, Director of Animal Welfare, purporting to act pursuant to his authority under s59(1) State Sector Act 1988. He is a Level Three Manager. However, at the top of page 7 of the Instrument of Delegation there is a condition which states, “ All human resource delegations are subject to the condition that you can only exercise decisions over staff within your immediate accountability.”

• 20. David Bayvel is the Director of Animal Welfare matters. He has delegated authority to make appointments but he does not meet the condition imposed above because line control of Kevin Byrnes is with the Director of the Enforcement Group.

  (Emphasis in original)

14 She also explains that Mr Barbour's instrument of appointment does not mention the State Sector Act 1988 which contains the power to appoint. She also confirms that Mr Byrnes and Mr Barbour were issued new instruments of appointment on 10 June 2011 and 16 June 2011.

Issues

15 With the invalidity of appointments accepted by the Chief Executive, the remaining issue is what relief, if any, I should grant.

Applicant's position

16 Mr Campbell submits that the invalid appointments must mean that the subsequent inspection was unlawful. It follows from this, he says, that there was no proper basis to lay the informations. He also contends that they are flawed on their face by purporting to be laid by an “investigator” and with the apparent imprimatur of the Chief Executive.

17 Given these combined illegalities and irregularities, Mr Campbell strongly submits that the prosecution is an abuse of process. He seeks, in the alternative, declarations that the search was illegal and unreasonable, an order preventing the production of evidence, an injunction preventing the Chief Executive from continuing the proceedings or an order staying the District Court proceedings.

18 Mr McCarthy admits that the appointments were invalid. Mr McCarthy also accepts that questions about the legality of the investigation and associated searches arise for consideration. But he says that the proper forum for considering these issues is the District Court. Mr McCarthy expanded on this in oral argument by contending that it was not the role of this Court to make pre-emptive declarations of invalidity or illegality or related orders of prohibition as that would usurp the role and jurisdiction of the District Court as the first instance trier of fact and law. He further contended that there would be no utility in the High Court making declarations about invalidity, as the District Court must, in any event, address those issues but with the benefit of hearing the evidence and assessing any unfairness arising from the invalidity of the appointments.

19 Finally, he submits that this case is nothing like the cases of abuse cited by the applicant that might give rise to intervention by this Court in a supervisory jurisdiction.

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